ITEMID: 001-66897
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: OOO TORGOVYI DOM "POLITEKS" v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, OOO Torgovyi Dom “Politeks”, is a limited-liability company registered in Moscow. It is represented before the Court by Mr D. Lyzlov. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a trading company. It owned a consignment of goods (imported electric tools). Unspecified third persons made groundless claims to the goods. Since there was no evidence to prove these claims in a court, the third persons incited the police to seize the goods under the guise of a sham criminal investigation.
On 15 July 1999 Mr Lyzlov was accompanying the goods. He was stopped by a police patrol and taken to a police station. In the course of an interrogation, the police discovered that the applicant company was storing the goods in a warehouse in Odintsovo. They went there and sealed the warehouse up. The police did not draw up any documents concerning the seizure and the applicant company's representatives were not allowed to visit the warehouse.
On 27 October 1999 the police loaded the goods into trucks and removed them from the warehouse. The police did not explain their actions, and the goods have been missing ever since. Later, the goods were spotted on sale in Moscow markets.
On 26 November 1999 the police started a criminal investigation against Mr Lyzlov on charges of fraud and forgery of documents.
On 19 October 1999 Mr Lyzlov filed an administrative complaint on behalf of the applicant company with the Zamoskvoretskiy District Court of Moscow. He maintained that the police had unlawfully seized the goods, that the goods had been plundered, and that the criminal charges against him had been unfounded.
On 25 February 2000 the Zamoskvoretskiy District Court dismissed the complaint. The court found that the police had lawfully seized the goods because they needed to investigate the allegation of a third person, Z., who had claimed that the goods belonged to him and not to the applicant company. The police had lawfully formalised the storage of the goods and appointed warehouse staff responsible for the goods' safety.
The court limited the scope of its review to the administrative aspects of the complaint having referred to Article 46 of the Constitution which secures to everyone judicial protection against public officials' acts. The court therefore abstained from looking into the merits of the charges against Mr. Lyzlov and from verifying the safety of the goods.
On appeal, this decision was upheld by the Moscow City Court on 25 April 2000.
Later, the criminal investigation against Mr Lyzlov was stopped.
A third person, Z., applied to the police alleging that goods belonging to his company were unlawfully retained by Mr Lyzlov in a warehouse of the applicant company.
On 15 July 1999 the police sealed up the applicant company's warehouse in Odintsovo. The police found that Mr Lyzlov did not work for the applicant company and had no documents confirming his rights on the goods.
On 26 November 1999 a public prosecutor instituted criminal proceedings against Mr Lyzlov on charges of fraud and forgery of documents. In the course of the investigation it was established that the goods had been imported in 1997 by a third company. The company asked Mr Lyzlov to customs clear the goods and to store them in its warehouse. However, Mr Lyzlov breached this agreement. As he considered that the third company owed him money, he hid the goods in a warehouse of the applicant company and requested the third company to pay a ransom for it. The investigating authorities found no evidence that the goods belonged to Mr Lyzlov. Nevertheless, since Mr Lyzlov's actions did not disclose a crime, the proceedings against him were stopped on 8 December 2002.
On 25 February 2000 the Zamoskvoretskiy District Court dismissed Mr Lyzlov's complaint about the police and the institution of the criminal proceedings.
On 25 April 2000 the Moscow City Court upheld the judgment on appeal.


ITEMID: 001-85016
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF GUJA v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (applicability);Violation of Art. 10;Pecuniary and non-pecuniary damage - award (global)
JUDGES: Alvina Gyulumyan;Christos Rozakis;Françoise Tulkens;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi
TEXT: 8. The applicant, Mr Iacob Guja, was born in 1970 and lives in Chişinău. At the material time he was the Head of the Press Department of the Prosecutor General’s Office.
9. On 21 February 2002 four police officers (M.I., B.A., I.P. and G.V.) arrested ten persons suspected of offences related to the parliamentary elections; one of them was also suspected of being the leader of a criminal gang. Later the suspects were released from detention and complained to the Prosecutor’s Office of ill-treatment and illegal detention by the four police officers. As a result of their complaint, a criminal investigation was initiated against the police officers on charges of, inter alia, ill-treatment and unlawful detention.
10. In June 2002 the four police officers wrote letters, which they signed jointly, to President Voronin, Prime Minister Tarlev and the Deputy Speaker of Parliament, Mr Mişin, seeking protection from prosecution. They set out their views on the criminal proceedings and complained that the actions of the Prosecutor’s Office were abusive. They asked for the legality of the criminal charges that had been brought against them to be verified. On 21 June 2002 Mr Mişin forwarded the letter he had received, with an accompanying note, to the Prosecutor General’s Office. The note was written on the official headed paper of the Parliament and was not marked as being confidential. It stated as follows:
“Dear Mr Rusu,
A question arises after reading this letter: is the Deputy Prosecutor General fighting crime or the police? This issue is made even more pressing by the fact that the policemen concerned are from one of the best teams in the Ministry of the Interior, whose activity is now being blocked as a result of the efforts of employees of the Prosecutor General’s Office. I ask you personally to intervene in this case and solve it in strict compliance with the law.”
11. In January 2003 Mr Voronin visited the Centre for Combating Economic Crime and Corruption where he discussed, inter alia, the problem of the undue pressure some public officials were putting on law-enforcement bodies in respect of pending criminal proceedings. The President made a call to fight corruption and asked law-enforcement officers to disregard any attempts by public officials to put them under pressure. The declarations of the President were made public by the media.
12. On an unspecified date the criminal proceedings against the police officers were discontinued.
13. A few days after Mr Voronin made his call to fight corruption, the applicant sent to a newspaper, the Jurnal de Chişinău, copies of two letters (“the letters”) that had been received by the Prosecutor General’s Office.
14. The first was the note written by Mr Mişin (see paragraph 10 above). The second had been written by Mr A. Ursachi, a deputy minister in the Ministry of the Interior, and was addressed to a deputy prosecutor general. It was written on the official headed paper of the Ministry of the Interior and was not marked confidential. It stated, inter alia:
“... Police Major M.I. [one of the four officers, see paragraph 9 above] was convicted on 12 May 1999 ... of offences under Articles 116 § 2 [illegal detention endangering life or health or causing physical suffering], 185 § 2 [abuse of power accompanied by acts of violence, the use of a firearm or torture] and 193 § 2 [extracting a confession by acts of violence and insults] of the Criminal Code and sentenced to a fine of 1,440 Moldovan lei (128 euros). Under section 2 of the Amnesty Act, he was exempted from paying the fine.
... on 24 October 2001, Major M.I. was reinstated in his post at the Ministry of the Interior.”
15. On 31 January 2003 the Jurnal de Chişinău published an article entitled “Vadim Mişin intimidating prosecutors”. The article stated, inter alia:
“At the end of last week, during a meeting at the Centre for Combating Economic Crime and Corruption, the President called on law-enforcement institutions to cooperate in the fight against organised crime and corruption and asked them to ignore telephone calls from senior public officials concerning cases that were pending before them.
The President’s initiative is not accidental. The phenomenon has become very widespread, especially during the last few years, and has been the subject of debate in the mass media and in international organisations.
Recently the press reported on the case of the Communist Parliamentarian A.J., who had attempted to influence a criminal investigation in respect of an old friend and high-ranking official at the Ministry of Agriculture who had been caught red-handed. However, no legal action was taken. ...
Also, the press reported that Mr Mişin had requested the Prosecutor General to sack two prosecutors, I.V. and P.B., involved in the investigation into the disappearance of the Chief of the Information Technology Department, P.D., apparently after they had found evidence implicating officials of the Ministry of the Interior in wrongdoing.
The results of the internal investigation into the activities of these two prosecutors are not yet known. However, sources at the Prosecutor’s Office have told this newspaper that even though I.V. and P.B. have not been found guilty, they have been asked to leave at the insistence of someone in authority.
Now, while the declarations of the President concerning trading in influence are still fresh on peoples’ minds, we reveal a new investigation concerning high-ranking officials.
The Deputy Speaker of Parliament is attempting to protect four police officers who are under criminal investigation. Mr Mişin’s affinity with policemen is not new, since his background is in the police force. Our sources stated that this is not the only case in which Mr Mişin has intervened on behalf of policemen in trouble with the law.
...
The Ciocana Prosecutor’s Office initiated criminal proceedings against four police officers ... after they had used force during the unlawful arrest of a group of people.
... [The] police officers assaulted the detainees by punching and kicking them ... Furthermore, it was found that one of the officers had made false statements in the police report on the arrest ... The four police officers were also being investigated for forcibly extracting confessions ...
The investigation lasted for more than a year. When it was almost over ... the police officers started to seek protection from those in authority.
...
On 20 June 2002 the police officers wrote letters to President Vladimir Voronin, Prime Minister Vasile Tarlev and the Deputy Speaker of Parliament, Vadim Mişin, asking them to intervene to end the investigation, which they said was unwarranted.
...
The first to react to their letter was the Deputy Speaker of Parliament, Vadim Mişin. On 21 June 2002 ... he sent the Prosecutor General a letter in which, in a commanding tone, he asked him personally to intervene in the case of the four policemen. Even though he instructed the Prosecutor General to get involved in this case ‘in strict compliance with the law’, the tone of the letter clearly shows that he was giving an order for the case to be examined very quickly.
As a result of the intervention of the State’s most influential figures, the Prosecutor General’s Office discontinued the criminal investigation against the policemen and ordered an internal investigation into the correctness of the decision to bring criminal proceedings against them ...
...
... Sources from the Ministry of the Interior confirmed that officer M.I. [one of the four policemen] had [previously] been convicted by the Court of Appeal, and ordered to pay a criminal fine of 1,440 Moldovan lei. In accordance with the Amnesty Act, he was exempted from paying the fine. Moreover, on 24 October 2001 ... he was reinstated at the Ministry of the Interior.
Without commenting on the judgment of the Court of Appeal, we wish to make some remarks. M.I. was convicted on the basis of Articles 116, 185 and 193 of the Criminal Code of abuse of power, forcibly extracting confessions and unlawful detention. For these offences, the Criminal Code lays down sentences of one to five years’ imprisonment. He was only given a fine.
Moreover, the Ministry of the Interior reinstated him while he was still under investigation.”
16. The newspaper article was accompanied by photographs of the letters signed by Mr Mişin and Mr Ursachi.
17. On an unspecified date the applicant was requested by the Prosecutor General to explain how the two letters had come to be published by the press.
18. On 14 February 2003 the applicant wrote to the Prosecutor General, admitting that he had sent the two letters to the newspaper. He stated, inter alia:
“My act was a reaction to the declarations made by the [President] concerning the fight against corruption and trading in influence. I did this because I was convinced that I was helping to fight the scourge of trading in influence (trafic de influenţă), a phenomenon which has become increasingly common of late.
I believed and still believe that if each of us were to help uncover those who abuse their position in order to obstruct the proper administration of justice, the situation would change for the better.
Further, I consider that the letters I handed over to the Jurnal de Chişinău were not secret. My intention was not to do a disservice to the Prosecutor’s Office, but on the contrary to create a positive image of it.”
19. On an unspecified date a prosecutor, I.D., who was suspected of having furnished the letters to the applicant, was dismissed.
20. On 17 February 2003 the applicant wrote a further letter to the Prosecutor General, informing him that the letters had not been obtained through I.D. He added:
“If the manner in which I acted is considered a breach of the internal regulations, then I am the one who should bear responsibility.
I acted in compliance with the Access to Information Act, the Prosecuting Authorities Act and the Criminal Code. I believed that the declarations of the [President] decrying acts of corruption and trading in influence were sincere. To my great regret, I note that the Prosecutor General’s Office has elevated a letter from a public official (which in my opinion is a clear example of direct political involvement in the administration of justice) to the status of State secret. This fact, coupled with I.D.’s dismissal, concerns me and causes me seriously to doubt that the rule of law and human rights are respected in the Republic of Moldova.”
21. On 3 March 2003 the applicant was dismissed. The letter of dismissal stated, inter alia, that the letters disclosed by the applicant to the newspaper were secret and that he had failed to consult the heads of other departments of the Prosecutor General’s Office before handing them over, in breach of paragraphs 1.4 and 4.11 of the Internal Regulations of the Press Department (see paragraph 31 below).
22. On 21 March 2003 the applicant brought a civil action against the Prosecutor General’s Office seeking reinstatement. He argued, inter alia, that the letters he had disclosed to the newspaper were not classified as secret in accordance with the law; that he was not obliged to consult the heads of other departments before contacting the press; that he had given the letters to the newspaper at the newspaper’s request; and that his dismissal constituted a breach of his right to freedom of expression.
23. On 16 September 2003 the Chişinău Court of Appeal dismissed the applicant’s action. It stated, inter alia, that the applicant had breached his obligations under paragraph 1.4 of the Internal Regulations of the Press Department by not consulting other departmental heads and under paragraph 4.11 of the Regulations by disclosing secret documents.
24. The applicant appealed. He relied on the same arguments as in his initial court action. He also argued that the disclosure of the letters to the newspaper had not in any way prejudiced his employer.
25. On 26 November 2003 the Supreme Court of Justice dismissed the appeal on the same grounds as the Chişinău Court of Appeal. Referring to the applicant’s submissions concerning freedom of expression, the Supreme Court stated that obtaining information through the abuse of one’s position was not part of freedom of expression (dreptul la exprimare nu presupune dobândirea informaţiei abuziv, folosind atribuţiile de serviciu).
26. Neither the Prosecutor General’s Office nor the Deputy Speaker of Parliament, Mr Mişin, appear to have contested the authenticity of the letters published in the Jurnal de Chişinău or the truthfulness of the information contained in the article of 31 January 2003 or to have taken any further action.
27. Since the Prosecutor General’s Office did not react in the manner the Jurnal de Chişinău had anticipated after the publication of the article on 31 January 2003 (see paragraph 15 above), the latter initiated court proceedings for an order requiring the Prosecutor General’s Office to initiate a criminal investigation into Mr Mişin’s alleged interference in an ongoing criminal investigation. The newspaper argued, inter alia, that, under the Code of Criminal Procedure, newspaper articles and letters published in newspapers could serve as a basis for the institution of criminal proceedings and that the Prosecutor General was under a duty to order an investigation.
28. The newspaper’s action was dismissed by the Râşcani District Court on 25 March 2003 and by the Chişinău Regional Court on 9 April 2003. The courts found, inter alia, that the newspaper did not have legal standing to lodge a complaint and that, in any event, the article of 31 January 2003 was merely a newspaper article expressing a personal point of view, not an official request to initiate a criminal investigation.
29. On 14 March 2003 the Jurnal de Chişinău published a follow-up to its article of 31 January 2003 entitled “Mişin launches crackdown on prosecutors”. The piece described the events that had followed the publication of the first article and stated that Mr Mişin had been infuriated by the article and had ordered the Prosecutor General to identify and punish those responsible for disclosing his note to the press. The Prosecutor General had acquiesced and declared war on subordinates who refused to tolerate political intervention in the workings of the criminal-justice system. The article stated that the actions of the Prosecutor General were in line with the general trend that had been observed in recent years of replacing people with considerable professional experience who were not prepared to comply with the rules instituted by the new government with people from dubious backgrounds. It claimed that sources from the Prosecutor General’s Office had told the newspaper that the Prosecutor General’s Office had received systematic indications from Mr Mişin and the advisers to the President concerning who should be employed or dismissed. In the previous year alone, thirty experienced prosecutors had been dismissed from the Chişinău Prosecutor’s Office.
The article also gave an account of the applicant’s dismissal as a result of pressure from Mr Mişin, and stated that sources at the Prosecutor General’s Office had told the newspaper that the Office had received dozens of letters from Mr Mişin and V.S. (another high-ranking public official) in connection with ongoing criminal investigations.
According to the newspaper’s sources, two prosecutors had been dismissed at the insistence of Mr Mişin because they had discovered incriminating material against him during an investigation into the disappearance of an important businessman, P.D. After their dismissal that criminal investigation had been brought to an end.
30. Article 263 § 1 of the Labour Code provided at the material time that employees of the central public authorities could be dismissed for a serious breach of their professional duties.
31. Paragraphs 1.4 and 4.11 of the Internal Regulations of the Press Department of the Prosecutor General’s Office read as follows:
“1.4 The Press Department shall plan and organise, in conjunction with the editorial offices of newspapers, magazines and radio and television stations and with the heads of other departments of the Prosecutor General’s Office, items for publication in the mass media concerning the activities of the Prosecutor General’s Office.
...
4.11 [The Head of the Press Department] is responsible for the quality of the published materials, the veracity of the information received and supplied, and for preserving confidentiality in accordance with the legislation of the Republic of Moldova.”
32. At the material time neither the Internal Regulations of the Prosecutor’s Office nor Moldovan legislation contained any provision concerning the disclosure by employees of acts of wrongdoing committed at their place of work.
33. The Criminal Code at the material time contained in Article 190 § 1 a provision prohibiting any interference with a criminal investigation. It stated:
“Any interference with a criminal investigation, namely the illegal exercise of influence in any form over the person carrying out the investigation ... shall be punished with imprisonment of up to two years or a fine of up to one hundred times the minimum wage.”
34. Article 90 of the Code of Criminal Procedure provided at the material time that, inter alia, information about offences contained in newspaper articles or notes or letters published in a newspaper could constitute a ground for a prosecutor to commence a criminal investigation.
35. Article 122 of the Code of Criminal Procedure provided that, at the investigation stage, materials from a criminal file could not be disclosed except with the authorisation of the person in charge of the investigation.
36. According to Article 125 of the Constitution, prosecutors are independent.
37. The relevant provisions of the Prosecuting Authorities Act read as follows.
“(1) The Prosecutor’s Office:
– shall exercise its functions independently of the public authorities ... in accordance with the law; ...
(3) ... Prosecutors and investigators are precluded from membership of any political party or other socio-political organisations and shall only be accountable before the law ...”
“(1) The Prosecutor General shall:
(i) be appointed by Parliament on a proposal by the Speaker of Parliament for a term of office of five years; and
(ii) have a senior deputy and ordinary deputies, who shall be appointed by Parliament on the basis of his or her proposals ...”
38. The Petitions Act requires civil servants or government bodies to reply to written requests within thirty days. If they lack competence, they must forward the request to the competent body within three days.
39. The relevant provisions of the Status of Members of Parliament Act of 7 April 1994 provide:
“Members of parliament shall have the right to contact any State body, non-governmental organisation or official about problems pertaining to the activity of a member of parliament and to participate in their examination.”
“Members of parliament, in their capacity as representatives of the supreme legislative authority, shall have the right to demand the immediate cessation of any unlawful conduct. In case of necessity they may request official bodies or persons to intervene to bring an end to the unlawful conduct ...”
40. The relevant part of the 2004 report of the International Commission of Jurists (ICJ) on the rule of law in Moldova stated:
“... The mission to Moldova carried out by the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists (ICJ/CIJL) has concluded that, despite efforts by the post-independence Moldovan government to reform its system of justice, the rule of law suffers serious shortcomings that must be addressed. The ICJ/CIJL found that the breakdown in the separation of powers has again resulted in a judiciary that is largely submissive to the dictates of the government. The practice of ‘telephone justice’ has returned. The executive is able to substantially influence judicial appointments through the Supreme Council of Magistracy that lacks independence. Beyond allegations of corruption, the Moldovan judiciary has substantially regressed in the last three years, resulting in court decisions that can pervert the course of justice when the interests of the government are at stake ...”
41. The 2003 Freedom House report on Moldova stated, inter alia, that:
“... In 2002, the principle of the rule of law was under challenge in Moldova ... Also affecting the fragile balance of power among the legislative, executive, and judicial branches of government in 2002 were a series of judicial nominations based on loyalty to the ruling party, the dismissal of the ombudsman, and attempts to limit the independence of the Constitutional Court.
...
In April [2002], the Moldovan Association of Judges (MAJ) signalled that the government had started a process of ‘mass cleansing’ in the judicial sector. Seven judges lost their jobs ...
The situation worsened when President Voronin refused to prolong the mandates of fifty-seven other judges ...”
42. The 2003 report by Open Society Justice Initiative and Freedom House Moldova stated, inter alia, the following:
“... there has been instituted the practice of ‘taking under control’ certain files, presenting interest to the Communist leaders or to state authorities. This practice implies the following: the High Council of the Magistracy (HCM) or the Supreme Court (both institutions are chaired by the same person) receives instructions from the President’s office, from government or Parliament, referring to the concerned case and required solution (such instructions also exist in oral form). Following these instructions, the Supreme Court or HCM addresses directly to the chairman of the court, where the particular case is being considered with the order to ‘take under personal control’ the examination of one or other particular file. The so-called ‘taking under control’ in fact represents direct instructions on solutions for specific cases.”
43. The relevant provision of the Termination of Employment Convention no. 58 of the International Labour Organisation, which was ratified by Moldova on 14 February 1997, reads:
“The following, inter alia, shall not constitute valid reasons for termination:
...
(c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
...”
44. The relevant provision of the United Nations Convention against Corruption, which was adopted by the General Assembly by resolution no. 58/4 of 31 October 2003 and which has been in force since 14 December 2005, reads:
“Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with [the] Convention.”
At the date on which this judgment was adopted, the Convention had been signed by 140 countries and ratified or acceded to by 77 countries, not including the Republic of Moldova.
45. The relevant provision of the Council of Europe’s Criminal Law Convention on Corruption of 27 January 1999 reads:
“Preamble
The member States of the Council of Europe and the other States signatory hereto,
...
Emphasising that corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society;
...
Have agreed as follows:
...
Each Party shall adopt such measures as may be necessary to provide effective and appropriate protection for:
(a) those who report the criminal offences established in accordance with Articles 2 to 14 or otherwise cooperate with the investigating or prosecuting authorities;
(b) witnesses who give testimony concerning these offences.”
The Explanatory Report to this convention states as follows with regard to Article 22:
“111. ... the word ‘witnesses’ refers to persons who possess information relevant to criminal proceedings concerning corruption offences as contained in Articles 2-14 of the Convention and includes whistle-blowers.”
This convention was signed by Moldova on 24 June 1999 and came into force in respect of Moldova on 1 May 2004.
46. The relevant provision of the Council of Europe’s Civil Law Convention on Corruption of 4 November 1999 reads:
“Preamble
The member States of the Council of Europe, the other States and the European Community, signatories hereto,
...
Emphasising that corruption represents a major threat to the rule of law, democracy and human rights, fairness and social justice, hinders economic development and endangers the proper and fair functioning of market economies;
Recognising the adverse financial consequences of corruption to individuals, companies and States, as well as international institutions;
...
Have agreed as follows:
...
Each Party shall provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities.”
The Explanatory Report to this convention states with regard to Article 9:
“66. This Article deals with the need for each Party to take the necessary measures to protect employees, who report in good faith and on the basis of reasonable grounds their suspicions on corrupt practices or behaviours, from being victimised in any way.
67. As regards the necessary measures to protect employees provided for by Article 9 of the Convention, the legislation of Parties could, for instance, provide that employers be required to pay compensation to employees who are victims of unjustified sanctions.
68. In practice corruption cases are difficult to detect and investigate and employees or colleagues (whether public or private) of the persons involved are often the first persons who find out or suspect that something is wrong.
69. The ‘appropriate protection against any unjustified sanction’ implies that, on the basis of [the] Convention, any sanction against employees based on the ground that they had reported an act of corruption to persons or authorities responsible for receiving such reports, will not be justified. Reporting should not be considered as a breach of the duty of confidentiality. Examples of unjustified sanctions may be a dismissal or demotion of these persons or otherwise acting in a way which limits progress in their career.
70.
71. Therefore the appropriate protection which Parties are required to take should encourage employees to report their suspicions to the responsible person or authority. Indeed, in many cases, persons who have information of corruption activities do not report them mainly because of fear of the possible negative consequences.
72. As far as employees are concerned, this protection provided covers only the cases where they have reasonable ground to report their suspicion and report them in good faith. In other words, it applies only to genuine cases and not to malicious ones.”
This convention was signed by Moldova on 4 November 1999 and came into force in respect of Moldova on 1 July 2004.
47. The relevant provisions of the Recommendation on Codes of Conduct for Public Officials adopted by the Committee of Ministers of the Council of Europe on 11 May 2000 (Rec(2000)10) read:
“Having due regard for the right of access to official information, the public official has a duty to treat appropriately, with all necessary confidentiality, all information and documents acquired by him or her in the course of, or as a result of, his or her employment.”
“...
5. The public official should report to the competent authorities any evidence, allegation or suspicion of unlawful or criminal activity relating to the public service coming to his or her knowledge in the course of, or arising from, his or her employment. The investigation of the reported facts shall be carried out by the competent authorities.
6. The public administration should ensure that no prejudice is caused to a public official who reports any of the above on reasonable grounds and in good faith.”
VIOLATED_ARTICLES: 10


ITEMID: 001-70369
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF JARZYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage -  financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1972 and lives in Rumia, Poland. The application was lodged on his behalf by his mother, Mrs Teresa Jarzyńska, who submitted a duly signed written authorisation from the applicant.
5. On 1 June 1999 the Gdańsk District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed several counts of armed robbery. It considered that there was a risk that the applicant would attempt to induce witnesses to give false testimony or to obstruct the proceedings by other unlawful means. It also relied on the severity of the anticipated penalty.
6. In the course of the investigation, the applicant's detention was prolonged on the following dates: 19 August 1999, 24 November 1999, 24 May 2000, 13 December 2000 and 7 March 2001.
7. In its decision of 13 December 2000 the Gdańsk Court of Appeal (Sąd Apelacyjny) considered that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody.
8. On 10 May 2001 the Gdańsk Regional Prosecutor terminated the investigation. On 15 May 2001 the applicant was indicted on 45 charges, including, inter alia, several counts of armed robbery before the Gdańsk Regional Court (Sąd Okręgowy). The bill of indictment listed 120 charges brought against 19 accused, who were all detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them.
9. The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution was still continuing.
10. During the trial, the applicant's detention was prolonged several times by the Gdańsk Court of Appeal. The relevant decisions were given on 23 May 2001 (extending the applicant's detention until 31 October 2001), on 24 October 2001 (ordering his continued detention until 31 March 2002), on 13 March 2002 (prolonging his detention until 30 September 2002), on 11 September 2002 (extending that period until 31 December 2002), on 18 December 2002 (ordering his continued detention until 30 June 2003), on 25 June 2003 (prolonging that period until 31 December 2003), on 17 December 2003 (extending his detention until 30 June 2004), on 23 June 2004 (ordering his continued detention until 31 December 2004), on 15 December 2004 (prolonging his detention until 31 March 2005) and on 30 March 2005 (extending that period until 30 June 2005). As at the latter date, 8 of the 19 accused were still detained on remand and the trial court had heard most of the prosecution witnesses.
11. In its decision of 11 September 2002, the Court of Appeal considered that the applicant's detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings.
12. In its decision of 18 December 2002, the Court of Appeal added that the case was “particularly complex” within the meaning of Article 263 § 4 of the Code of Criminal Procedure.
13. In its decision of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence.
14. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately from other defendants.
15. During the trial the applicant filed numerous but unsuccessful applications for release on health grounds and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis. He also relied on his family's situation.
16. It appears that the applicant is still in detention pending trial.
17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju).
18. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.”
19. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
20. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
21. Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
22. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
23. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
24. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-72354
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TUREK v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed;Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1944 and lives in Prešov.
9. The applicant worked in the State administration of the school system. He occupied a leading post that fell within the purview of section 1 of Act No. 451/1991 Coll. (“the Lustration Act”) which defined some supplementary requirements for holding certain posts in public administration.
10. In January 1992 the applicant’s employer requested, pursuant to section 6 of the Lustration Act, that the Ministry of the Interior of the Czech and Slovak Federal Republic (“the Federal Ministry”) issue a clearance (lustračné osvedčenie) concerning the applicant under section 9 of the Lustration Act (see below).
11. On 19 March 1992 the Federal Ministry issued a negative security clearance. It stated that it was based on section 9 (1) of the Lustration Act and certified that the applicant “[was] registered as a person referred to in section 2 (1) (b) of the Lustration Act”. This provision defined six categories of collaborators of the [former] State Security Agency (Štátna bezpečnosť, “StB”) who, if registered as such in the StB’s files in the period from 25 February 1948 to 17 November 1989, were disqualified from holding certain posts in public administration. The document was served on the applicant on 26 March 1992.
12. The applicant resigned from his post. In 1994 he left his employer completely, having felt compelled to do so. Since then the applicant has been commuting to work in a location remote from his place of residence.
13. The information about who was registered in the StB files in the categories referred to in section 2 (1) (b) of the Lustration Act has been made public in newspapers and, unofficially as well as officially, on the internet.
14. On 25 May 1992 the applicant lodged an action against the Federal Ministry for protection of his good name and reputation under Article 11 et seq. of the Civil Code with the Prague (the Czech Republic) City Court (Městský soud). He claimed that his registration as a collaborator of the StB was wrongful and unjustified. He requested that the Federal Ministry issue a new clearance to the effect that he was not registered as a person referred to in section 2 (1) (b) of the Lustration Act.
15. The City Court subsequently sent a copy of the action to the defendant, invited the applicant to pay the court fee and listed a hearing for 6 August 1992.
16. On 23 July 1992 the applicant filed a request under Article 12 §§ 2 and 3 of the Code of Civil Procedure for a transfer of his action to the Košice Regional Court (Krajský súd). On 29 July 1992 he demanded that the hearing scheduled for 6 August 1992 be cancelled in view of his request for transfer of the action.
17. On 7 August 1992, after the applicant had paid the court fee, the City Court sent a copy of the request of 23 July 1992 to the defendant for comments. On 23 September 1992 the latter objected to the transfer.
18. On 24 September 1992 the City Court submitted the case file to the Supreme Court (Najvyšší súd) of the Czech and Slovak Federal Republic for a determination as to which court was to entertain the action at first instance.
19. On 4 November 1992 the Supreme Court ruled that the action fell to be determined by the Regional Court. The case file was sent to it on 13 November 1992.
20. On 16 November 1992 the Regional Court requested the defendant’s observations in reply. In a letter of 25 November 1992 the defendant replied that it had already filed its observations with the City Court. On 10 December 1992 the City Court transferred those observations to the Regional Court.
21. On 18 February 1993 the Regional Court invited the applicant to specify which public body possessed the powers conferred by the Lustration Act in the area of security screening after the dissolution of the Czech and Slovak Federal Republic on 1 January 1993. On 26 February 1993 the applicant responded that the body currently responsible for security screening in Slovakia was the Ministry of the Interior of the Slovak Republic (“the Slovak Ministry”). It was thus understood that the action was directed against the said Ministry.
22. On 9 March and 8 April 1993 the Regional Court invited the applicant to submit within ten days second copies of the action and of the submissions of 26 February 1993.
23. On 21 April 1993 the Regional Court invited the Slovak Ministry to present its observations in reply to the action. In its response of 6 May 1993 the Ministry primarily contested its standing to be sued in the case, arguing that it had not assumed the authority of the Federal Ministry under the Lustration Act. Relying on Resolution no. 276 of the Government of Slovakia of 20 April 1993 (“Resolution no. 276”), the defendant asserted that the body which had taken over those powers under the Lustration Act was the Slovak Intelligence Service (Slovenská informačná služba – “the SIS”). The Ministry also maintained that under the said resolution the Prime Minister of Slovakia was entrusted with the task of preparing jointly with the Minister of Justice of Slovakia a petition to the Slovak Constitutional Court (Ústavný súd) for a review of the constitutionality of the Lustration Act.
24. On 4 October 1993 the applicant amended his submissions of 26 February 1993 on the ground that the Federal Ministry’s powers under the Lustration Act had devolved to the SIS, against which the action was accordingly directed.
25. On 21 October 1993 the Regional Court invited the SIS to present its observations in reply. The defendant submitted the observations on 16 November 1993 and on 9 December 1993 the Regional Court sent their copy to the applicant.
26. On 9 May 1994 the Regional Court held a hearing at which the applicant modified the subjectmatter of the action in that he sought a judicial ruling declaring that his registration as a person referred to in section 2 (1) (b) of the Lustration Act was wrongful. The applicant further informed the court that he wished to call ex-StB agents P., K. and M. as witnesses. He submitted the addresses of P. and K. and stated that he would submit the address of M. later. The defendant consented to the modification of the action and maintained that the relevant ex-StB documents were held in the archives of the Federal Ministry. The hearing was adjourned with a view to obtaining these documents.
27. On 10 June 1994 the Regional Court sent a letter to the Federal Ministry inviting it to submit copies of the relevant ex-StB documents. The letter was returned unanswered as “undelivered”.
28. On 12 September 1994, on the basis of a treaty of 29 October 1992 between the Slovak Republic and the Czech Republic on mutual legal assistance (“the mutual legal assistance treaty of 1992”), the Regional Court sent a letter rogatory to the City Court requesting that it obtain from the Ministry of the Interior of the Czech Republic (“the Czech Ministry”) copies of all ex-StB documents in its possession concerning the applicant.
29. On 27 September 1994 the City Court advised the Regional Court that the request had been submitted to the Czech Ministry, which would reply directly to the Regional Court.
30. In a letter of 3 October 1994 the Czech Ministry informed the Regional Court that all ex-StB documents concerning Slovakia had been transmitted to the Slovak Ministry and that, accordingly, the documents concerning the applicant had to be searched for there.
31. On 12 October 1994 the Regional Court requested that the Slovak Ministry submit within 15 days copies of all ex-StB documents concerning the applicant.
32. The request of 12 October 1994 was answered on 2 November 1994 by the SIS to the effect that, apart from a database in which the applicant was listed as an ex-StB agent, there were no ex-StB materials concerning him in its possession. The defendant relied on a treaty between the governments of the Slovak Republic and the Czech Republic on joint usage of information and archives generated by ministries of the interior in the area of internal order and security which had been signed on 29 October 1992 and promulgated in the Collection of Laws under No. 201/1993 (“the treaty of 1992”). The SIS submitted that under this treaty the relevant documents were with the Czech Ministry. The SIS again contested its standing to be sued in the case, arguing that the powers in the area of security screening which had been conferred on it under Resolution no. 276 were limited to 9 months. As this period had already expired, there was presently no official body entrusted with these powers in Slovakia.
33. On 21 December 1994 the Regional Court reiterated its request to the Czech Ministry for copies of ex-StB documents concerning the applicant. On the same day it also addressed a request to the Office of the Government of the Slovak Republic for information as to which authority was currently vested with the powers under the Lustration Act as regards security screening. As no answer had been received, the Regional Court repeated the requests in May 1995.
34. On 22 May 1995 the Office of the Government informed the Regional Court that the question of legal succession in respect of the powers under the Act was not currently addressed in the existing legislation. However, by analogy, the powers of the Federal Ministry had been assumed by the Slovak Ministry.
35. In a letter of 24 May 1995 the Czech Ministry informed the Regional Court that there were no documents concerning the applicant in its archives. Considering the relevant part of the letter of the SIS of 2 November 1994 to be confused, it relied on the Protocol to the treaty of 1992 and maintained that the documents searched for were stored in Slovakia.
36. On 9 August 1995 the Regional Court ordered that the SIS deliver within 20 days copies of all ex-StB documents concerning the applicant which were in its possession. The SIS complied on 24 August 1995 and proposed that the proceedings be discontinued on the grounds of its lack of standing to be sued. The SIS also pointed out that the documents submitted were top secret and that the applicable confidentiality rules had to be observed.
37. Another hearing was held on 11 December 1995. The applicant extended the action by directing it also against the Government of the Slovak Republic, as a collective constitutional body with distinct legal personality. The hearing was adjourned in order for the applicant to resubmit the extended action in writing. He did so on 13 December 1995.
38. On 15 December 1995 the SIS filed its observations in reply to the extended action.
39. At an unspecified later point the Vice-President of the Regional Court exercised his power under section 2 § 2 of the State Administration of Justice Act of 1992 and assigned the case to another Chamber of that court on the ground that the original Chamber had an excessive workload.
40. On 9 September 1996 the Regional Court allowed the extension of the action against the Government of Slovakia. On the same day it invited the applicant to disclose the address of witness M.
41. In a written submission of 19 September 1996 the Office of the Government asserted that the Government was not the legal successor of the Federal Ministry and possessed no powers under the Lustration Act. It was thus not the correct defendant to the action.
42. On 28 October 1996 the applicant informed the Regional Court that he had no information as to the address of M. and requested that the court itself make an inquiry as to the address.
43. The hearing called for 15 January 1997 had to be adjourned as the representatives of the applicant and the Government did not appear.
44. On 21 April 1997 the Regional Court held another hearing. It made a formal ruling allowing the modification of the subject matter of the action, as sought by the applicant on 9 May 1994. The Regional Court then heard the parties and examined the StB file concerning the applicant.
45. On 21 May 1997 the SIS informed the Regional Court of M.’s address.
46. On 2 July 1997 the applicant submitted a pleading in which he commented on the documentary evidence submitted by the defendant.
47. By letters of 9 September, 20 November and 10 December 1997 the Regional Court requested that the Slovak Ministry discharge witnesses P., K. and M. from the obligation of confidentiality in respect of the subject matter of the proceedings. The Ministry agreed on 29 June 1998.
48. On 13 August 1998 the Regional Court held another hearing at which witnesses P., K. and M. failed to appear. Witness K. apologised for his absence and submitted in writing that he had “no recollection of the applicant and no knowledge that the StB would have ever had any file in respect of him”.
The applicant admitted having met K. and M. several times before and after his journeys abroad when they had, respectively, instructed him on how to behave abroad and asked for information about his stay. Their discussions were of a general nature and included the situation at the applicant’s workplace. The applicant also admitted having obtained and provided to K. a list of students who had been preparing for studies abroad, information he considered public in any case. He had never had the impression that he was considered a collaborator and had never been asked to keep his contacts with K. and M. secret.
The hearing was adjourned until 24 August 1998 with a view to calling the witnesses again.
49. At the hearing of 24 August 1998 the Regional Court heard M. and K. Witness M. confirmed that he had been in charge of recruiting the applicant as a collaborator. However, if there had ever been any act of formal undertaking to cooperate (viazací akt) on the part of the applicant, M. had not been present at it. He had received the impression that the applicant had not been interested in meeting him. Their conversation had concerned ordinary affairs and the applicant had not submitted any documents. The reports mentioned in the StB file had been drawn up by M. on the basis of his conversation with the applicant. According to M., the applicant had never given any information that was capable of harming any specific person. There had been norms as to how many new agents were to be recruited. As a result, new “recruitments” had frequently been only formal, with the new “agents” conceivably having no knowledge of them.
Witness K. claimed to know the applicant only by face. He did not remember having ever met him and denied having ever received any information or documents from him. The applicant’s StB file was partially created by K. In the given period the situation in the StB had been such that, in order to meet their statistical objectives, it was possible for officers to run a file in respect of an “agent” by filing information from their own sources and declaring them as having been obtained from that “agent”.
The witness P. did not appear and the court observed that it had been impossible to deliver the summons to him. In response to the court’s request, the parties stated that they intended to adduce no further evidence apart from hearing P. and examining the relevant Internal Guideline of the Federal Ministry of 1972 (“the 1972 guideline”) concerning secret collaboration.
50. On 10 September 1998 the Regional Court ordered that the summons for the forthcoming hearing be served on P. by the police. No service was however actually effected.
51. At a hearing held on 24 September 1998 the SIS submitted the 1972 guideline. As this document was classified, the applicant had no access to it. Apart from proposing to hear P. the parties adduced no other evidence.
52. The Regional Court listed a hearing for 24 February 1999 and ordered that the summons be served on P. by the police. At this hearing P. finally appeared and gave evidence. He acknowledged that he had been the chief district police officer during the relevant period and that he remembered the applicant. However, he could not recollect clearly the details of their collaboration. P. pointed out that the StB’s organisation had been very strict and considered that, if something had been recorded, it must have been true. In contradiction to M., P. considered that it was not possible that the applicant had not known that he was acting for the StB as an “agent”.
The applicant submitted that the majority of his foreign travel had taken place before 1984, when he was allegedly acquired as an agent. The contention that he had agreed to collaborate in return for the StB’s support in connection with travel was therefore unfounded.
53. On 19 May 1999, following another hearing held on the same day, the Regional Court dismissed the action.
54. First of all, the Regional Court found that the Government of the Slovak Republic had no standing to be sued in the proceedings and that the correct entity to defend the action was the SIS. The Regional Court considered that the crucial criterion for establishing standing was which entity de facto possessed the ex-StB archives.
On the basis of the StB file pertaining to the applicant, the Regional Court established that the applicant had been listed since 1983 as a “candidate for secret collaboration” and as an “agent” of the StB since 1984. For tactical reasons it had been decided not to have the applicant sign a formal undertaking to collaborate. This was permitted under the 1972 guideline. The applicant’s StB file contained only an index indicating which reports and documents he had provided. There was a note that the reports and documents themselves had been officially destroyed in late 1989 when, according to the file, cooperation with the applicant had been terminated.
The Regional Court also noted that the applicant had on thirteen occasions travelled abroad to western Europe at the relevant time and that it was then usual for a person to be interviewed by the StB prior to and after such travel. The applicant himself acknowledged having met the StB in connection with his travels. He also admitted having been in contact with K., M. and P. and having unwillingly met with them. However he categorically denied ever having given them any intelligence information.
The other witness evidence was contradictory. The Regional Court based its finding on the testimony of P., holding it to be credible and consistent with the case file, and did not accept the testimony of K., observing that it contradicted the applicant’s own submissions. In the light of all the information in its possession, including what was known of the applicant’s intellectual capacity, the Regional Court found that he must have known that he had been meeting StB agents and that their contact had actually amounted to formal collaboration. In so far as the applicant had disputed such a conclusion and asserted that his registration in the StB files had been unjustified, he had failed to prove his case; in particular, he had failed to show that the registration was contrary to the applicable rules.
55. On 6 July 1999 the applicant lodged an appeal with the Supreme Court. He challenged the credibility of witness P., objected that he had had no access to the 1972 guideline, which was a crucial piece of evidence, and argued that the Regional Court had erred in its factual assessment of the case.
56. On 4 August 1999 the SIS filed its observations in reply to the appeal. On 24 August 1999 the Regional Court transmitted the case file to the Supreme Court for a decision on the appeal.
57. On 26 October 1999, following a hearing held on the same day, the Supreme Court upheld the Regional Court’s judgment.
It found that the Regional Court had adequately established the facts of the case and found no logical or other errors in the Regional Court’s assessment of the evidence.
The Supreme Court held that the fact that the applicant was registered in the StB files as a person referred to in section 2 (1) (b) of the Lustration Act did not by any means constitute evidence that he had been a conscious collaborator of the StB.
In line with established judicial practice, the Supreme Court pointed out that the procedure concerning the issuance of a security clearance under the Act could not amount to a violation of an individual’s good name and reputation. Only unjustified registration in the StB files would amount to such a violation.
The Supreme Court considered that it was crucial for the applicant to prove that his registration had been contrary to the rules applicable at the material time and concurred with the Regional Court’s conclusion that the applicant had failed to do so. No appeal lay against this decision.
58. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
59. Pursuant to Article 6, as applicable at the relevant time, courts were to work together with the parties to ensure that contentious facts were established reliably and that the parties’ rights were protected speedily and effectively.
60. Under Article 100 § 1, once proceedings commence, the court is to act without further procedural motions so that the matter is examined and determined as expeditiously as possible.
61. Under Article 114 § 1, a hearing is to be prepared by the President of the Chamber so that the matter can be decided, usually (spravidla) in a single session.
62. Article 120 § 1 provides that the parties to the proceedings are to adduce evidence in support of their assertions. The court may also take and examine (vykonať) evidence which has not been adduced [by the parties]. The court decides on the facts as established on the basis of the evidence taken and examined.
63. The mechanism of legal protection of personal integrity under Article 11 et seq. of the Civil Code has primarily found its practical application in defamation proceedings. Certain judicial decisions (see the judgments of the Supreme Court file nos. 1Co 23/94 and 5Cdo 39/2000) and academic views (see J. Švestka, Ochrana osobnosti, Linde Praha, a.s., 1996, p. 138 and J: Drgonec; Tlačové právo na Slovensku, Archa, 1995, p. 148) seem to suggest that, in actions of that type, the burden of proving that an interference with the plaintiff’s good name and reputation was justified lies with the defendant.
64. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular of their life and health, civil and human dignity, privacy, name and personal characteristics.
65. Under Article 13 § 1, natural persons have the right to request that unjustified infringement of their personality rights be ended and that the consequences of such infringement be eliminated. They also have the right to appropriate just satisfaction.
66. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.
67. The Act laid down supplementary requirements for the holding of certain important posts and functions in State organs and institutions which were filled by election, designation or appointment. The Act prevented persons mentioned in section 2 (1) under letters (a) through (h) from exercising the functions enumerated in section 1.
68. Under section 2 (1) (b), the functions covered by the Act could be exercised only by persons who were not registered in the [former] StB files in the period between 25 February 1948 and 11 November 1989 as “resident”, “agent”, “holder of a conferred flat”, “holder of a conspiratorial flat”, “informer” or “ideological collaborator of the StB”.
69. Under section 2 (1) (c), the functions covered by the Act could only be exercised by persons who had not been conscious collaborators of the StB in the above period. On 26 November 1992 the Constitutional Court of the Czech and Slovak Federal Republic (Ústavný súd Českej a Slovenskej Federatívnej Republiky) found that this condition was in contradiction with the Charter of Fundamental Rights and Freedoms (Listina základných práv a slobôd) and with the International Covenant on Economic, Social and Cultural Rights. Accordingly, this condition was repealed as from 15 December 1992.
70. The fact that a person met the requirements of section 2 of the Act was to be proven by means of a security clearance issued by the Ministry of the Interior under section 9 of the Act. Under paragraph 1 of that section the security clearance was to be delivered into the hands of the person concerned alone.
71. Under section 14 (1), if a person does not meet the requirements of section 2 of the Act, the employer is to terminate that person’s employment by notice within 15 days unless the employment terminates earlier by agreement or otherwise or the person concerned is transferred to another post outside the scope of section 1 of the Act.
72. Under section 18 (2), such termination of employment can be challenged before the courts within two months from the date on which the employment purportedly ended.
73. Section 19 provides that any disclosure of the clearance or of the information contained in it is prohibited, save with the consent of the person concerned.
74. The temporal application of the Act is governed by its section 23, under which the Act ceased to have effect in Slovakia on 31 December 1996.
75. It has been established by judicial doctrine and the relevant case law that persons who consider themselves adversely affected by their registration in the former StB files can seek redress before civil courts by means of an action for protection of their personal integrity under Article 11 et seq. of the Civil Code.
76. Since 29 September 2002 the keeping of files generated by the StB in respect of its collaborators, purported or real, has been regulated by the Act on the Disclosure of Documents regarding the Activity of State Security Authorities in the period 1939-1989 and on Founding the National Memory Institute (the National Memory Act) (Zákon o sprístupnení dokumentov o činnosti bezpečnostných zložiek štátu 1939 - 1989 a o založení Ústavu pamäti národa).
77. The Act regulates (a) the establishment of the National Memory Institute; (b) the recording, collecting, disclosing, publishing, managing and use of documents created by defined security forces in the period from 18 April 1939 to 31 December 1989 in respect of crimes committed against persons of Slovakian nationality or citizenship; (c) the manner of detecting and prosecuting such crimes; (d) the protection of the personal data of persecuted persons; and (e) activity in the area of public education.
78. “9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.
...
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-66747
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DURASIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1951 and lives in Łódź, Poland.
5. On 4 November 1993 the applicant lodged with the Łódź Regional Court (Sąd Wojewódzki) a civil action against the State Treasury – the Zgierz Hospital. She claimed compensation and a monthly pension for damage she had sustained as a result of a medical treatment at the Zgierz Hospital.
6. On 5 November 1993 the court exempted the applicant from the courtfees.
7. On 20 March 1995 the trial court held the first hearing.
8. Subsequently, hearings were held on 12 June and 13 November 1995.
9. On 27 November 1995 the Łódź Regional Court gave judgment. It dismissed the applicant's action. The trial court found no fault on the part of the doctors concerned and accordingly dismissed the liability of the State Treasury for the damage.
10. The applicant appealed against this judgment.
11. On 28 February 1996 the Lodz Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case to the Regional Court.
12. The trial court held the first hearing on 2 October 1996.
13. At the subsequent hearings which were held on 29 August and 12 November 1997 the trial court ordered an expert opinion and heard an expert witness.
14. At the hearing held on 23 January 1998 the defendant asked the court to prepare another expert opinion.
15. Between 24 January 1998 and 18 January 1999 no hearings were held.
16. Subsequently, the Łódź Regional Court held six hearings and on 22 July 1999 it gave judgment. The trial court again dismissed the action.
17. The applicant appealed against the judgment.
18. The Łódź Court of Appeal held five hearings and on 9 October 2001 it gave judgment. The appellate court partly allowed the appeal and awarded the applicant PLN 4,000 in compensation. The court found, inter alia, that the doctors had failed to act diligently; consequently, the State Treasury was liable for the damage sustained by the applicant.
19. On 29 January 2002 the applicant lodged a cassation appeal with the Supreme Court.
20. On 29 October 2002 the Supreme Court (Sąd Najwyższy) rejected her cassation appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5854
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: CORETTI v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant, Mario Coretti, is an Italian national, born in Germany in 1968. When lodging his application he was living in Ravensburg (Germany). He is represented before the Court by Mr A. Koschorreck, a lawyer practisig in Stockach (Germany).
The members of the applicant’s family, i.e. his parents and five brothers and sisters, are living in Germany. The applicant has lived together with a German national for several years and a child was born out of wedlock in 1996.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 October 1997 the Tübingen Regional Government (Regierungspräsiduum) ordered the applicant’s expulsion. It noted the applicant’s repeated criminal convictions since 1986, in particular his conviction of drug trafficking in 1997 when he had been sentenced to three years and nine months’ imprisonment. The Regional Government found that this serious criminal conduct reached the level of severity justifying the expulsion of a foreigner born Germany and in possession of a residence permit. In this context, the Regional Government considered his personal and family situation, in particular that he was the father of a German child, born two days before he had been taken into detention in October 1996, but also the fact that he had twice been warned about the consequences of criminal conduct. Referring to Article 8 of the Convention, the Regional Government argued that the applicant, on account of his age, would manage his integration in Italy. Moreover, the public interest in his expulsion, given the seriousness of his criminal conduct, outweighed his own and his child’s and friend’s family interests. The Regional Government ordered that the applicant be expelled after having served his prison sentence.
The applicant appealed against this expulsion order and the decision dismissing his administrative appeal to the competent administrative courts. At the same time he applied for an interim measure to stop his expulsion.
On 6 August 1998 the Sigmaringen Administrative Court (Verwaltungsgericht) refused his request for an interim measure. His appeal (Beschwerde) was dismissed by the Baden Wurttemberg Administrative Appeals Court (Verwaltungsgerichtshof) on 12 October 1998.
On 23 November 1998 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s complaint. It found that the refusal of an interim measure did not violate his basic rights and that the proceedings on the merits (Hauptsacheverfahren) were still pending.
The applicant was expelled to Italy in March 1999.
The applicant’s appeals in the main proceedings remained unsuccessful.


ITEMID: 001-72704
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CENBAUER v. CROATIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Peer Lorenzen;Sverre Erik Jebens
TEXT: 9. The applicant was born in 1971 and lives in Viljevo, Croatia.
10. On 15 December 1993 the applicant was found guilty of several criminal offences, including murder, and sentenced to twelve years' imprisonment. He started serving his prison sentence on 4 January 1995 at Lepoglava State Prison (Kazneni zavod Lepoglava – “LSP”).
11. LSP is a building comprising five wings: A, B, C, D and E. All the wings have now been renovated. B wing was the last to be renovated, its renovation being completed in December 2003.
12. The applicant remained at LSP until 27 September 1995, when he was transferred to another prison. He was admitted to LSP for a second time on 30 December 1998.
13. On 4 October 1999 the applicant was transferred to Glina Penitentiary where he remained until 5 April 2000. Then he was transferred to Požega Penitentiary. During his stay in that institution, the applicant was granted various privileges, including the right to short periods of leave. After committing criminal offences (burglary and theft) while on leave, the applicant was again transferred to LSP on 21 September 2000. On 3 January 2001 he was placed in B wing.
14. On 8 April 2003 the applicant was transferred to a cell in the renovated part of B wing.
15. On 22 August 2003 the applicant was released as he had served his time in prison.
16. The applicant gave the following account of the detention conditions in B wing of LSP.
17. The cell he was placed in was small and there were neither sanitary facilities nor running water. There was no heating and the cell walls were damp and mouldy. The cell was dirty and the bed sheets were not changed for very long periods of time. In order to urinate at night and at other times when he was confined to his cell, the applicant had to use a four-litre plastic container in the shape of a bottle, because the guards refused to unlock his cell and let him use the toilet. Toiletries and other personal hygiene products were provided only every four to five months. The food served to the inmates was of insufficient quantity and poor quality; the inmates were served only carbohydrates, without any vegetables and hardly any meat. In general, the prison was overcrowded. The prison buildings, built about two hundred years ago, were in a very poor state of repair. As the prison guards did not wear badges with their number or name, the inmates did not know their identities. The prisoners were made to line up as many as ten times a day, even when it rained. They also had to take outdoor exercise daily in slippers, even when it rained or snowed.
18. The Government provided the following account of the applicant's detention conditions at LSP.
19. The applicant's cell was a double-occupancy cell. Most of the time the applicant shared it with another inmate and only for a period of about two months was he alone in the cell. The cell was 3.5 m long, 1.6 m wide (5.6 m2) and 3.05 m high. It had a 0.8 x 0.8 m (0.64 m2) window and one artificial light. There was no toilet in the cell although the applicant had permanent access to communal sanitary facilities and could use a shower. Inmates were provided with toothpaste, soap, shaving cream, disposable razors, shampoo and toilet paper on a monthly basis. The food served to the inmates was of the prescribed calorific value and in general the inmates had no complaints in that respect. The inmates were lined up several times a day before meals. The inmates who worked were also lined up when going to and coming from work and before and after their break. Inmates were lined up outdoors when the weather permitted and they were dressed appropriately. In bad weather inmates were lined up inside the prison building. The inmates were afforded a large outdoor exercise area and were able to attend film shows on Sundays.
20. The Government submitted that the renovation of B wing had been completed on 5 December 2003. It had been freshly painted and every cell had been provided with a toilet and washbasin. The cells now have parquet flooring, new furniture and radiators, new electric sockets and new ceiling lights. There are now four showers used by 35 to 40 inmates.
21. The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to LSP were as follows (extract from the report to the Croatian government on the visit to Croatia carried out by the CPT from 20 to 30 September 1998, CPT/Inf. (2001) 4):
“a. Material Conditions
...
58. ... the two unrenovated wings, B and E, accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5.5 to some 6.5 m2. The CPT must emphasise that cells of such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a plastic container in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors). It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries.
The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable. Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority.
Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state.
59. Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings ...
The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ...
...
b. Regime
61. According to section 19 of the Law on Execution of Sentences, sentenced prisoners must be provided, to the extent possible given an establishment's facilities and resources, with various types of work appropriate to their abilities and skills. ...
62. Of the 660 prisoners in the closed and semi-open sections at Lepoglava State Prison, approximately 300 were engaged in various types of work activities, including woodworking and furniture production (employing 150 inmates), metalwork (20), arts and crafts, as well as a variety of posts involving the day-to-day operations of the prison (laundry, cooking, gardening, etc.). ...
63. Nevertheless, the fact remains that at the time of the visit, the majority of the prisoners in the establishment's closed unit – 324 out of 532 – were not working. 110 prisoners were on a waiting list for work. Further, 83 prisoners had been categorised as permanent non-workers, either through choice or disability, though many such prisoners interviewed by the delegation advanced that they did in fact wish to work.
The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners – including some who already worked – were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two-thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise.
64. ... For the majority of prisoners in the establishment's closed unit, there was no positive regime in place which might encourage them to address their offending behaviour.
The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.”
22. On 1 July 2002 a delegation of the Court visited LSP in connection with the Benzan case (see Benzan v. Croatia (friendly settlement), no. 62912/00, 8 November 2002). Its findings in respect of the general conditions at LSP were as follows:
“Meeting with the governor of LSP
The prison governor informed the delegation that the only unrenovated wing is B wing. He further informed the delegation that the prison held 683 inmates. He admitted that the prison was overcrowded, especially B wing.
Tour of LSP
B wing
We found cell 17 situated next to the communal bathroom. It measured 5.6 m2. There were no in-cell sanitary facilities. There were two non-working electrical sockets. There was a dim light on the ceiling. The window on the wall opposite the door measured 0.64 m2. There was one wooden chair and a metal locker. There was one set of bunk beds. The mattresses were dirty and bloodstained. The cell smelled strongly of moisture. The cement walls were damp to the touch.
Shower, toilet and laundry area
There were three toilets and two showers for 60 inmates. There was no heating in the toilet. In the shower there was one radiator. There was no toilet paper. Next to the showers there was a laundry area equipped with long basins for inmates to wash their clothes. The laundry area was accessible for one hour per day.
The indoor entertainment and recreation area
Next we visited a TV-room where we found one television, about 20 chairs and 7 tables. It served 60 inmates.
There was also a social room with 6 tables, each with 4 chairs, serving 44 inmates. We saw chess-boxes on the tables. Inside, there was one stove with two electric hotplates and one sink.
On each floor we saw table tennis equipment, each serving 44 inmates.
Renovated wing
Here we visited a cell which measured 11 m2. There were two sets of bunk beds. There was a separate bathroom with toilet and sink, but with no shower or bathtub. However, there were communal showers on the same floor. There was one electric socket, three lights on the ceiling, two metal lockers, two wooden chairs, one table and one shelf on the wall. There were two windows (0.64 m2). The room was freshly painted and had parquet floor. It was very clean.
Outdoor recreation area
We saw a large walking area, with benches and trees and an asphalt playground of large proportions.
The canteen
The canteen where the inmates eat is a huge room, separated from the other prison areas. It can accommodate 200 persons at a time. The inmates eat in shifts. Food is cooked on the premises and there is also a bakery.
Working area
The working area comprises several large workshops for wood-processing, production of chess boards, picture-framing, a bookbinding shop and book press and an art studio including a visual arts section.
The bookbinding shop where the applicant works has large windows, a desk and a chair.
The interviews
The applicant
The applicant informed the delegation that he had been placed in cell no. 17 in B wing sometime in May 2000 and had stayed there until August or September 2001. He reported that at the time of his arrival there had been no glass on the window, but that it had been repaired in a few days. The paint on the walls had been peeling off and the cell had been very damp. Sometime in 2001 the walls had been repainted in the entire wing. He further reported that although there had been a radiator in the cell, there had been no heating until the end of winter 2001, when the radiators had been repaired, but that even after that the heating had been insufficient. The applicant stressed that the toilets in B wing had been renovated to a certain degree and that they had been in a much worse state of repair. He said that there had been mould on the walls which was covered over with paint.
The applicant's daily routine is as follows:
7 a.m. – wake up
8-9 a.m. – breakfast and walk
10.30-11.30 a.m. – locked in cell
11.30 a.m. – lunch
12.30-1.30 p.m. – walk
3-5 p.m. – locked in cell
5.30 p.m. – dinner
from 7 p.m. – locked in cell
9 p.m. – lights off
The applicant complained that the inmates were always pressed for time for lunch and dinner because there were too many people, divided into several shifts. He also said that the food was of low quality, badly prepared, badly cooked and that the only edible food was bread. He said that most of the time he was hungry. The inmates are dressed in jeans and shirts that are replaced every two years. They are also provided with shoes, underwear and a jacket.
The applicant complained that the bed sheets were dirty, greasy and too short. The blankets were old, dirty and had not been washed for seven years. The mattress in his cell was old, rotting, bloodstained and soiled. The applicant also stated that medical assistance was only available once weekly on Mondays and that consultations with physicians were superficial, lasting one minute.
The prison governor
The prison governor admitted that there were two deaths from cardiac arrest this year and that a number of inmates suffered from hepatitis, though they were not placed in any special unit. He admitted further that in the whole area there was a water shortage because of the problems with water pressure. However, the bathrooms were open from 9.30 to 11.30 a.m. and from 4 to 5.30 p.m. As to the medical staff, he said that one physician, a specialist in general medicine, and a dentist, were employed full-time. There was at least one nurse on the premises at all times. Once a week physicians of different specialisation visited the prison (a lung specialist, a surgeon, an internist and an ophthalmologist).
He also reported that about 50% of inmates currently worked in the prison.”
23. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows:
“No one shall be subjected to any form of ill-treatment ...”
24. The Enforcement of Prison Terms Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text)) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:
“(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“(1) The accommodation of the inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.
(2) Inmates shall as a general rule be accommodated in separate rooms ...
(3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 m² and 10 m³ of space in the room.
(4) Every room ... must have daylight and artificial light ...
(5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.
(6) Inmates shall have drinking water at their disposal at all times.”
“(1) The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.”
“(3) Inmates shall be served at least three meals daily with a calorific value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.”
VIOLATED_ARTICLES: 3


ITEMID: 001-112476
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF SLYADNYEVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicant was born in 1946 and lives in Komsomolske.
5. On 16 February 2001 the applicant and six other persons, all members of the collective enterprise Z., lodged a claim with the Zmiyiv Town Court (“the Zmiyiv Court”) against this enterprise and its director seeking the annulment of decisions on the Z.’s re-organisation. The applicant had worked in this enterprise for about thirty years.
6. On 2 November 2001 the Zmiyiv Court decided to leave the claim without examination.
7. On 11 January 2002 the Kharkiv Regional Court of Appeal quashed that ruling and remitted the case to the first-instance court for an examination on merits.
8. Meanwhile the enterprise Z. was liquidated, and the liquidator became a party to the proceedings.
9. As a result, on 22 October 2004 the Zmiyiv Court restarted its examination of the case.
10. On 7 February 2007 it found against the claimants.
11. In the course of the proceedings the Zmiyiv Court adjourned hearings on twelve occasions in allowing requests of the claimants, who needed additional time for amending their claims, or given their failure to appear. There were also thirteen adjournments requested by the defendant enterprise or caused by the absence of its representative. On one or two occasions hearings were adjourned because the judge was busy or following procedural measures ordered by the court.
12. On 14 March 2007 the Kharkiv Regional Court of Appeal found that the case fell under the jurisdiction of commercial courts and sent it for examination to the Kharkiv Commercial Court of Appeal, which on 5 July 2007 upheld the judgment of the Zmiyiv Court.
13. On 26 December 2007 the Higher Commercial Court found that the dispute was to be examined by the courts of general jurisdiction, quashed the ruling of 5 July 2007 and remitted the case back to the Kharkiv Regional Court of Appeal.
14. On 1 April 2008 the Kharkiv Regional Court of Appeal discontinued the proceedings in part concerning the claims against the enterprise Z., as it had been liquidated by that time, and rejected the remainder of the claims as unsubstantiated.
15. On 17 October 2008 the Supreme Court upheld that ruling.
16. On 18 December 2002 the applicant, as well as the other claimants (see paragraph 5 above), lodged an additional claim against the enterprise Z. for recovery of a share.
17. The claimants supplemented and specified their initial claims on a number of occasions.
18. On 13 December 2005 the Zmiyiv Court stayed the examination of the case pending the outcome in the first set of proceedings.
19. On 8 February 2006 the Kharkiv Regional Court of Appeal quashed the above ruling, and the first-instance court resumed the proceedings.
20. On 9 June 2006 the Zmiyiv Court allowed the applicant’s request for an expert assessment of the value of a share in the enterprise Z., which it entrusted to the Kharkiv Research Institute for Forensic Expert Examinations.
21. In January 2007 the aforementioned expert institution informed the court that it did not have the required expertise capacities. The proceedings were then resumed, without the evaluation in question having been undertaken.
22. On 19 February 2007 the Zmiyiv Court found against the claimants.
23. On 30 July 2007 by the Kharkiv Commercial Court of Appeal upheld that judgment.
24. On 26 December 2007 the Higher Commercial Court found that the case was to be examined by courts of general jurisdiction, quashed the ruling of 30 July 2007 and sent the case for examination to the Kharkiv Regional Court of Appeal.
25. On 28 May 2008 the Kharkiv Regional Court of Appeal discontinued the proceedings in the part concerning the claims against the enterprise Z. due to its liquidation and upheld the judgment of 19 February 2007 in the remaining part.
26. On 12 December 2008 the Supreme Court upheld that ruling.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1