ITEMID: 001-91728
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VERETENNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1953 and lives in the town of Novaya Usman, Voronezh Region.
5. On 17 or 20 March 1998 the applicant brought an action against his former employer, a municipal enterprise, claiming his reinstatement in the post and damages. On 3 June 1998 the applicant amended his claims and sought to obtain certain documents from the respondent company.
6. On 8 February 2000 the Chaunskiy District Court of the Chukotka Region dismissed the applicant’s action. On 6 April 2000 the Chukotka Regional Court set aside the judgment and remitted the case for a fresh examination.
7. In May and July 2000 and January 2001 the applicant amended his claims, reiterated his claim for documents from the respondent and asked the court to call witnesses. On 1 February 2001 the District Court granted the applicant’s claims in part. On 24 May 2001 the Regional Court quashed the judgment and remitted the case for a re-trial.
8. In July 2001 and February 2002 the applicant amended his claims. On 22 February 2002 the District Court found for the applicant. The court reinstated him and awarded him 67,960 Russian roubles (RUB) on account of leave payment, RUB 39,766.09 for salary arrears and inflation losses, and RUB 10,000 in respect of non-pecuniary damage. On 16 May 2002 the Regional Court remitted the case for a new examination in the part of leave payment and upheld the remainder of the judgment.
9. On 30 November 2002 the applicant received RUB 39,766.09 as awarded by the court and another payment of RUB 17,397.14.
10. On 9 January 2003 the District Court awarded the applicant RUB 48,247 in leave payment. The judgment was not appealed against and became final on 20 January 2003.
11. On 24 January 2003 the bailiffs’ office opened enforcement proceedings. On 21 March 2003 the District Court instructed the bailiffs’ office to collect RUB 30,849.86 from the respondent company because due to a mistake the applicant had already received RUB 17,397.14.
12. On 5 May 2003 the bailiffs’ office closed the enforcement proceedings. They held that the judgment could not be enforced because the respondent had no property or funds; on 2 July 2002 the enterprise had been restructured so that its assets had been transferred to the municipality.
13. The judgment of 9 January 2003 was enforced in full on 14 April 2006.
14. The Civil Code defines State and municipal unitary enterprises as a special form of legal entities that do not exercise the right of ownership in respect of the property allocated to them by the property owner (Article 113 § 1). The State or municipal authority retains ownership of the property but the enterprise may exercise in respect of that property the right of economic control or operative management (Article 113 § 2).
15. The manager of a unitary enterprise is appointed by, and reports to, the owner (Article 113 § 4). The owner has the right to restructure or liquidate the enterprise. The owner’s consent is required for any transaction that may lead to encumbrance or alienation of the property.
16. The owner of an enterprise having the right of economic control is not liable for the enterprise’s debts unless the owner has caused insolvency of the enterprise or violated the procedure for its liquidation (Article 114 § 7). Such enterprise may be declared insolvent in accordance with the insolvency procedure applicable to private companies.
17. The owner of an enterprise having the right of operative management is liable for the enterprise’s debts in case of insufficiency of their funds (Article 115). Such enterprise may not be declared insolvent (Article 65).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-99748
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: IONESCU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: 1. The applicant, Mr Adrian Mihai Ionescu, is a Romanian national, who was born in 1974 and lives in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In an action before the Bucharest District Court, the applicant claimed 90 euros (EUR) in damages from an international road transport company (“the company”), alleging that it had failed to perform its contractual obligations.
4. He claimed that in respect of a return journey between Bucharest and Madrid, which had cost him EUR 190, the company had failed to observe the safety and comfort requirements set out in its advertising material, namely the provision of fully reclining seats, a change of coach in Luxembourg and the availability of six drivers.
5. On 6 January 2004 he requested the production of the relevant transport documents held by the defendant company.
6. In a judgment of 7 January 2004 the court dismissed his action. After examining the clauses of the contract of carriage, it found that none of the conditions referred to by the applicant were mentioned. The court did not rule on the request for the production of certain items of evidence.
7. In an appeal on points of law received in the court's registry on 22 January 2004, the applicant challenged that judgment. In his grounds of appeal, filed in the registry on the same day, he alleged that the impugned judgment was based on contradictory grounds, that it was the result of an erroneous application of the law and that it infringed the law. The applicant added that the court had failed to rule on certain defences that were crucial for the outcome of the dispute and that it had misinterpreted the subject-matter of the proceedings.
8. He developed his arguments relying on provisions of the Civil Code and on the interpretation of the contractual clauses.
9. The case was referred to the High Court of Cassation and Justice (“the High Court”). Under the Code of Civil Procedure as then in force, the appeal was subject to a two-stage examination: first, the High Court would adjudicate in private on its admissibility and, if it was declared admissible, the merits of the impugned judgment would then be examined in a public hearing.
10. On 26 February 2004 the applicant submitted “pleadings concerning the admissibility of the appeal” in which he argued that it should be declared admissible because the substantive and procedural conditions were satisfied.
11. In a final judgment delivered in private on 2 April 2004 in the absence of the parties, who had not been summoned to appear, the High Court declared the appeal null and void, under Article 302-1 § 3 of the Code of Civil Procedure as then in force, on the ground that it had not stated the reasons why the District Court's decision was alleged to be unlawful.
12. On 3 August 2004 the applicant applied to have that judgment set aside, alleging that it was the result of a manifest error on the part of the High Court, because he had set out his grounds of appeal in the document filed on 22 January 2004. In addition, he complained about the lack of publicity of the proceedings before the High Court.
13. In a judgment of 26 January 2005 the High Court rejected his application on the ground that no appeal lay against the judgment of 2 April 2004.
14. The Code of Civil Procedure (as amended by the Government's Emergency Order no. 58 of 25 June 2003), as worded at the material time, contained the following provisions:
“Appeals on points of law shall be heard by the High Court of Cassation and Justice, unless otherwise provided by law.”
“Statements of appeal on points of law shall, if they are not to be declared null and void, ... indicate the grounds of illegality raised and contain the corresponding reasoning ...”
“The setting-aside or quashing of a judgment may be sought only in the following cases and for the following reasons:
1. if the bench was composed in breach of the statutory provisions;
2. if the judgment was delivered by judges other than those who heard the case on the merits;
3. if the judgment was rendered in disregard of the jurisdiction of another court;
4. if the court exceeded its jurisdiction;
5. if the judgment was rendered contrary to rules of procedure of which a breach carries the sanction of nullity ...;
6. if the judgment was rendered ultra petita;
7. if the judgment did not give reasons or if it was based on reasoning that was contradictory or unrelated to the subject-matter of the proceedings;
8. if, on account of misinterpretation, the court modified the subject-matter of the proceedings whereas that subject-matter had been clear and undisputed;
9. if the judgment was not based on the law, if it infringed the law, or if it was the result of an erroneous application of the law;
10. if the court failed to rule on certain defences or certain documents in the file that were crucial for the outcome of the dispute.”
“An appeal on points of law against a judgment which is not subject to an ordinary appeal shall not be limited to the situations provided for in Article 304, as the appellate court shall be entitled to examine all the aspects of the case.”
“The president of the court which receives the appeal on points of law shall appoint a bench of three judges to rule on its admissibility ...
If the judges are unanimous in finding that the admissibility conditions are not satisfied, or if they find that the grounds of appeal and the accompanying arguments do not correspond to those set out in Article 304, they shall declare the appeal null and void or, if appropriate, reject it in a reasoned decision without summoning the parties, that decision not being subject to appeal.”
15. Law no. 195 of 25 May 2004, further amending the Code of Civil Procedure, repealed the provisions of Emergency Order no. 58/2003 concerning the exclusive jurisdiction of the High Court of Cassation and Justice to hear appeals on points of law, together with the provisions concerning the preliminary examination of their admissibility. Appeals on points of law are now examined by the courts that are immediately above those that gave the judgments at first instance or on appeal, without any preliminary examination of admissibility, and in accordance with the ordinary procedure provided for by the Code of Civil Procedure.


ITEMID: 001-58241
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF McLEOD v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine P1-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Simon Brown
TEXT: 6. The applicant, Ms Sally McLeod, was born in 1952 and lives in Middlesex.
7. In April 1986 the applicant and her husband separated and in July 1988 they were divorced. At about that time, the applicant’s elderly mother went to live with her in the former matrimonial home, which Ms McLeod had bought with her ex-husband in 1984.
8. Following the couple’s separation, proceedings were instigated before the Uxbridge County Court concerning the former matrimonial home and its contents. These proceedings were described by Mr Justice Tuckey in the High Court’s judgment of 12 November 1992 as substantial and acrimonious (see paragraph 18 below).
9. On 1 July 1988 the Uxbridge County Court ordered that the former matrimonial home be transferred to the applicant on payment of 30,000 pounds sterling (GBP). Although this amount was paid by the applicant on or about 26 July 1989, the house was not transferred into her sole ownership until after the events in question. Nevertheless, in its judgment of 27 November 1992, the Brentford County Court found that on payment of the GBP 30,000 “the beneficial ownership of the property vested in her as sole owner” (see paragraph 19 below).
10. On 30 June 1989 the Uxbridge County Court ordered the division of the furniture and other moveable property to be found in the former matrimonial home in accordance with a list identified in the order. However, delivery was not effected and on 23 August 1989 the County Court ordered Ms McLeod to make arrangements for the delivery of her ex-husband’s property within fourteen days. The order was backed by a penal notice.
11. On 8 September 1989 the applicant delivered property to her ex-husband which, save for one or two items, was not that described in the order. As a result, on 28 September 1989 the Uxbridge County Court made an order committing her to prison for twenty-one days. However, this order was suspended for seven days to allow her to deliver the property identified on the list to Mr McLeod on or before 6 October 1989. Immediately after the hearing the latter, through his counsel, offered to collect the property to save the applicant the trouble of delivering it. He suggested 4 p.m. on 3 October 1989.
12. Believing that the applicant had agreed to his suggestion, at 4 p.m. on 3 October 1989 Mr McLeod, accompanied by his brother and sister and a solicitor’s clerk, went to the former matrimonial home to collect his property. Fearing that there would be a breach of the peace (see paragraphs 24 to 27 below) because of Ms McLeod’s previous unwillingness to comply with orders of the court, Mr McLeod’s solicitors made arrangements for two police officers to be present while the property was being removed. When the police officers arrived, they were informed that Mr McLeod was there to collect his property pursuant to an agreement concluded between him and the applicant, and were given a copy of the list but not of the court order. According to one of the police officers, the solicitor’s clerk offered to return to his office to get a copy of the order, but the police officer did not require that this be done.
13. One of the police officers knocked at the door of the house. It was answered by the applicant’s mother who told him that her daughter was not at home, and that she was unaware of any arrangement concluded between the latter and Mr McLeod. In an affidavit sworn on 21 November 1990, the applicant’s mother claimed that the police officer had told her to open the door because they were from the court and had a court order to execute. The applicant’s mother opened the door and stepped aside, allowing Mr McLeod and his party access to the property. Subsequent court proceedings held that the entry of Mr McLeod, his siblings, and the solicitor’s clerk amounted to a trespass (see paragraph 19 below).
14. Upon entering the house, Mr McLeod and his siblings began removing his property. Although the police officers accompanied them into the house, according to the applicant’s mother’s affidavit the officers spent most of the time on the front driveway. They did not participate in the removal or disturbance of the property, although one of them checked that only the items on the list were removed.
15. When the applicant returned home at 5.30 p.m., she became angry and objected to the removal of the property. At that stage, one load had been driven away and a second load was in the van, which had been rented by her ex-husband. One of the police officers intervened and insisted that she allow Mr McLeod to leave with the property. She was permitted to inspect the contents of the van but the officer insisted that she should not unload items from it because he feared that, if she did so, there was likely to be a breach of the peace. He explained to Ms McLeod that any continuing dispute concerning the property should be resolved later by her and her ex-husband’s respective solicitors. Just after midnight the applicant’s mother, who had recently suffered a stroke, was taken to hospital suffering from high blood pressure.
16. The applicant instituted criminal proceedings against those involved in the incident, which were unsuccessful. Together with her mother, she then instituted three sets of civil proceedings for trespass, one against her ex-husband and his siblings, one against the solicitor’s clerk and a third against the two police officers.
17. On 26 January 1992 the applicant’s mother died.
18. On 12 November 1992 Mr Justice Tuckey in the High Court dismissed the action against the police officers on the grounds that they had not trespassed on the applicant’s land or goods. Although the judge considered that the applicant had not agreed to her ex-husband removing his property from the former matrimonial home on 3 October 1989, he found that the latter genuinely believed that an agreement had been concluded. Furthermore, he considered that the officers had had reasonable grounds for apprehending that a breach of the peace might take place and were therefore entitled, pursuant to the common law as preserved by statute, to enter on and remain at the property without the consent of the owner:
“The [applicant] contends that the police did not have reasonable grounds for apprehending that there might be a breach of the peace and therefore they were trespassers on the property. I reject this contention. They had been told to go to the house on the information of a solicitor that there might be trouble. The history of the matter makes it clear in my judgment that the solicitor’s fears were well-founded. If [the applicant] had been there when her ex-husband’s party arrived, I have no doubt that the police constables’ role as peace-keepers would have been required.”
Regarding the applicant’s claims for trespass to goods, the judge found that the police officers had not actively participated in the removal or the disturbance of the applicant’s property. Although one of the police officers had checked that only the items on the list figuring in the court’s order were removed, “he did not encourage or participate in the removal of those things that apparently were on the list or in the way in which things in or on those items were to be dealt with”.
19. On 27 November 1992 the Brentford County Court pronounced on the applicant’s two remaining civil actions against her ex-husband, his brother and sister and his solicitors. It considered that there had not been any agreement between Ms and Mr McLeod for him to collect his property on 3 October 1989 and that the applicant’s mother had not given permission to Mr McLeod and his party to enter the house. The court concluded that, as a result, they had trespassed on Ms McLeod’s land and property. She and her mother’s estate were awarded GBP 1,950 with interest by way of compensation.
20. On 1 December 1992 the applicant appealed against the decision of Mr Justice Tuckey on the ground that the police officers should have made enquiries before entering her house, that there had been no breach of the peace or threat of a breach of the peace and that the police had been negligent in failing to give adequate protection to her mother.
21. The Court of Appeal dismissed the appeal on 3 February 1994 (McLeod v. Commissioner of Police of the Metropolis [1994] 4 All England Law Reports 553). In his judgment Lord Justice Neill held:
“The real issue in the case, as I see it, is whether the officers had any excuse in law for entering [the former matrimonial home]. It is common ground that some excuse is required because it does not appear that there was any consent to the entry by [the applicant] or her mother. The judge found that they took no active part in removing any property and, as I have said, all [one of the police officers] did was to check a list of what was being taken. But it is clear that they both entered the property and it may be that one of them knocked on the door.
There are two questions which need to be decided. First, in what circumstances, if any, can police officers enter into a private house to prevent a breach of the peace? Secondly, if a right to enter a private house does exist in certain circumstances, did those circumstances exist here?”
Noting that the common-law powers of the police to enter private premises were preserved by section 17(6) of the Police and Criminal Evidence Act 1984 (“the 1984 Act”), the judge considered that the principal authority under common law was the decision of the Divisional Court in Thomas v. Sawkins ([1935] King’s Bench Reports 249). Lord Justice Neill continued:
“That was a case where police officers went to a hall where a public meeting which had been extensively advertised was about to take place; the police sergeant in charge of the party was refused admission to the hall but insisted on entering and remaining there during the meeting. The question arose as to whether the police were entitled to take that course.
Lord Hewart, who delivered the first judgment in the case, said this at page 254:
‘I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises.’
At page 255 Avory J said, in relation to entering premises in connection with an affray:
‘... I cannot doubt that he has a right to break in to prevent an affray which he has reasonable cause to suspect may take place on private premises.’
He considered, therefore, that the police officers were justified in what they were doing. Lawrence J at page 257 put the matter as follows:
‘If a constable in the execution of his duty to preserve the peace is entitled to commit an assault, it appears to me that he is equally entitled to commit a trespass.’”
Lord Justice Neill further considered that another precedent of relevance for the applicant’s case was McGowan v. Chief Police Constable of Kingston Upon Hull (reported in The Times on 21 October 1967):
“In that case police officers had gone into a house where a child was being held in a man’s arms. The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress. But a question arose as to whether the mistress had authority to give an invitation to the police officers to come in. The Lord Chief Justice when giving his judgment said:
‘Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.’”
Lord Justice Neill then recalled that the judgment in Thomas v. Sawkins had been subjected to criticism in that it had appeared to infringe the basic principle that the law would not intervene until an offence had actually been committed. He also noted that it had been suggested that the precedent established in Thomas v. Sawkins should be limited to public meetings, and continued:
“Having the benefit of argument, I am satisfied that Parliament in section 17(6) [of the 1984 Act] has now recognised that there is a power to enter premises to prevent a breach of the peace as a form of preventive justice. I can see no satisfactory basis for restricting that power to particular classes of premises such as those where public meetings are held. If the police reasonably believe that a breach of the peace is likely to take place on private premises, they have power to enter those premises to prevent it. The apprehension must of course be genuine and it must relate to the near future.”
Mindful of the practical difficulties of using the power correctly and sensibly in domestic situations, Lord Justice Neill commented that:
“… when exercising his power to prevent a breach of the peace a police officer should act with great care and discretion; this will be particularly important where the exercise of his power involves entering on private property contrary to the wishes of the owners or occupiers. The officer must satisfy himself that there is a real and imminent risk of a breach of the peace, because if the matter has to be tested in court thereafter there may be scrutiny not only of his belief at the time but also of the grounds for his belief.”
Relying on the facts as established by the High Court, Lord Justice Neill considered that the police officers entered the applicant’s house to prevent a breach of the peace and were reasonable in concluding that there was a danger of such a breach. The other judges, Lords Justices Hoffman and Waite agreed. Leave to appeal to the House of Lords was refused.
22. On 1 March 1994 the applicant applied to the House of Lords for leave to appeal against the Court of Appeal’s decision of 3 February 1994. On 18 May 1994 the House of Lords refused the application.
23. Section 17 of the 1984 Act sets out the primary circumstances in which a police constable may enter and search premises. According to section 17(1)(e), a police officer may enter any premises for the purposes of saving life or limb or preventing serious damage to property. Whilst section 17(5) abolishes all common-law rules under which a police officer previously had power to enter premises without warrant, section 17(6) provides:
“Nothing in subsection (5) affects any power of entry to deal with or prevent a breach of the peace.”
24. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416) remarked in January 1981:
“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426)
He continued:
“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)
25. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows:
“There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471)
26. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:
“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)
27. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155) Lord Justice Simon Brown stated:
“… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163)
28. The common-law power of the police to enter private property to prevent a breach of the peace, as preserved by section 17(6) of the 1984 Act, was defined by Lord Chief Justice Hewart in Thomas v. Sawkins cited above:
“I think that there is quite sufficient ground for the proposition that it is part of the preventive power, and, therefore, part of the preventive duty, of the police, in cases where there are such reasonable grounds of apprehension as the justices have found here, to enter and remain on private premises. It goes without saying that the powers and duties of the police are directed, not to the interests of the police, but to the protection and welfare of the public. (p. 254)
… I am not at all prepared to accept the doctrine that it is only where [a breach of the peace] has been, or is being, committed, that the police are entitled to enter and remain on private premises. On the contrary, it seems to me that a police officer has ex virtute officii full right so to act when he has reasonable ground for believing that [a breach of the peace] is imminent or is likely to be committed.” (p. 255)
29. The continued existence of the common-law power of entry to prevent a breach of the peace and its applicability to circumstances of a domestic quarrel was recognised in McGowan v. Chief Constable of Kingston Upon Hull ([1968] Criminal Law Reports 34), where the Lord Chief Justice said:
“Regardless of the invitation, there was sufficient [ground] to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.”
VIOLATED_ARTICLES: 8


ITEMID: 001-5153
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SZELOCH v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1967. He is currently serving a prison sentence.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
In 1992 the Zielona Góra District Prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter and sexual assault against children. On 7 September 1992 the applicant was arrested and detained on remand on 9 September 1992.
On 7 May 1993 the Zielona Góra Regional Court prolonged the applicant’s detention until 30 June 1993.
On 29 June 1993 the court prolonged the applicant's detention on remand until 15 August 1993 on the grounds that there was a reasonable suspicion, supported by the evidence gathered so far in the proceedings, that he had committed a serious crime. Moreover, the applicant should undergo further psychiatric examination. The court observed that there were no grounds on which to consider that the continued detention would entail for the applicant particular hardship, within the meaning of Article 218 of the Code of Criminal Procedure.
On 30 July 1993 the applicant’s psychiatric examination was completed. On 4 August 1993 the court prolonged the applicant’s detention until 7 September 1993.
On 6 September 1993 the Supreme Court prolonged the applicant’s detention until 31 December 1993. On 13 October 1993 experts from the Pruszków Psychiatry and Neurology Institute submitted their report. On 21 October 1993 the Prosecutor appointed an extended team of experts with a task of establishing whether the applicant was suffering from a physical and mental disorder or disability at the time of the commission of the crime with which he had been charged.
On 29 December 1993 the Supreme Court prolonged the applicant’s detention until 31 January 1994.
On 31 January 1994 the bill of indictment against the applicant was lodged with the Zielona Góra Regional Court. The applicant was indicted for homicide.
The first hearing before the Regional Court was held on 28 March 1994. The court heard the submissions of the applicant and examined witnesses J.D. and J.Ch. On 29 March 1994 the court heard evidence from expert J.D. and examined witnesses A.M., M.S., E.S., J.S., D.S., and W.S.. At the hearing of 30 March 1994 the court examined witnesses G.K., I.K., A.Ł., D.B., J.S., R.S., P.J., R.B., A.W., P.G. and E.K. Other witnesses summoned for that hearing, J.N., J.K., Z.B. and J.B., failed to attend. The next hearing was listed for 11 April 1994.
On 11 April 1994 the court examined the witnesses J.Z., K.S., J.N., D.A., J.K., D.W., K.W. and G.S. Witnesses G.M., R.D., A.P., Z.B. and J.G. failed to attend the hearing.
At the next hearing, on 4 May 1994, the court heard evidence from witnessess G.M. and K.J. Witnesses J.G., R.D., S.P., A.P. and Z.P. failed to comply with the summonses. The court imposed a fine of 1.000.000 PLZ upon the witnesses R.D., A.P. and S.P. who had been duly summoned.
On 27 May 1994 the court examined as witnesses R.D., A.J., R.K. and S.P. Witnesses A.P., Z.B., J.G., T.J. and D.M. were absent.
At the next hearing on 9 August 1994 the court heard evidence from T.J., R. C., J.B. and A.R. Witnesses A.P., Z.B., J.G. and D.M. failed to attend the hearing.
On 24 August 1994 the court examined A.P. as a witness. Witnesses D.M., J.G. and Z.B. did not attend the hearing.
On 2 September 1994 the court inspected the scene of crime.
At the hearing held on 28 September 1994 the court examined a witness M.M. and the expert witness H.G. An expert Z.S. did not comply with the summons as he suffered from a chronic illness. The experts from the Pruszków Psychiatric Institute informed the court that they would be able to attend the hearing only on 11 and 25 October or 17 November 1994 because they had other hearings before other courts. The court fixed a date for the next hearing for 25 October 1994.
On 25 October 1994 the court examined experts from Pruszków Institute - L.C., J.W. and T.G. The expert Z.S. did not appear again. The court adjourned the hearing until 14 December 1994.
On 6 December 1994 the applicant requested the Zielona Góra Regional Court to quash the detention order in view of his state of health which had seriously deteriorated as a result of his detention. He also submitted that he suffered from hypertension.
On 14 December 1994, during a hearing before the Zielona Góra Regional Court, the court examined a witness W.T. and an expert H.B. Certain discrepancies arose between the oral testimony of psychiatrists heard by the court and the submissions of the same experts in their written expert report concerning the applicant’s mental health. In view thereof, and at the applicant’s defendant’s request, the court decided that the applicant’s further psychiatric observation in the Psychiatric Department of Kraków University was necessary in order to establish whether he could be held criminally responsible.
Subsequently the applicant underwent a psychiatric observation.
On 23 December 1994 the Zielona Góra Regional Court dismissed the applicant’s request for release of 6 December 1994, finding that the evidence in the case-file sufficiently supported the suspicion against him. The court further had regard to the seriousness of the charges against the applicant. The court took into account the medical certificate according to which the applicant could receive appropriate medical treatment in the prison.
On 11 April 1995 the applicant lodged a further request for release with the Zielona Góra Regional Court, emphasising that he had been detained since September 1992. It was further stressed that, given that the investigations had been completed, there were no grounds on which to accept that his release would jeopardise the further taking of evidence. It was finally stated that there were no grounds for the applicant’s continuing detention.
The Zielona Góra District Court dismissed the request on 19 April 1995, considering that the evidence gathered in the investigations sufficiently supported the suspicion that the applicant had committed a serious crime. The court further noted that there were no grounds on which to accept that the circumstances referred to in Article 218 of the Code of Criminal Procedure obtained in the applicant’s case.
The applicant underwent psychiatric examinations from 29 May, 3 June and on 21 June 1995.
On 27 October 1995 the applicant again requested the Zielona Góra Regional Court to quash the detention order, arguing that he had been detained for three years and that the investigations had been completed. Therefore, the applicant’s release would not jeopardise the proper course of the proceedings. It was further emphasised that the detention on remand was a preventive measure, which should not serve any punitive purposes. The length of the applicant’s detention on remand was such as to confer a punitive character on it.
The request was dismissed by the Zielona Góra Regional Court on 2 November 1995 on grounds identical with those relied on by the same court in its decision of 19 April 1995.
On 15 November 1995 the applicant lodged an appeal with the Poznań Court of Appeal against this decision. He argued that three years of detention on remand were incompatible with the notion of justice, the more so as the court was not under a legal obligation to maintain his detention. He requested the appellate court to consider the imposition of more lenient preventive measures. He further submitted that, as a result of the excessive length of his detention, it had ceased to serve the purposes of a preventive measure and had acquired a punitive character.
On 11 December 1995 and 5 January 1996 the applicant complained to the Minister of Justice about the length of the criminal proceedings in his case. He submitted that regardless of the findings made by the court in the proceedings on the merits of the criminal case against him, which had already lasted three years, he still enjoyed the presumption of innocence and should not be regarded as being guilty before a final judicial decision was given in this respect.
In a letter of 2 January 1996 the President of the Zielona Góra Regional Court, in reply to the applicant’s complaint of 11 December 1995, forwarded to him by the Minister of Justice, stated that the case was complex, in particular since the court had to admit fresh evidence, including the expert opinion requested by the applicant. This opinion was being prepared. The court had several times urged the experts to expedite their work, but to no avail. The proceedings would progress as soon as the expert report was submitted.
In his reply of 5 January 1996, the applicant stressed that the President of the Regional Court had failed to address his complaints about the excessive length of proceedings and, in particular, to explain reasons for which, since the last hearing held on 14 December 1994, there had been no progress in the case. He stated that since that date the court had been unable to do anything to speed up the preparation of the expert opinion. He submitted that his appeal against the Regional Court’s refusal to release him had not been transferred by that court to the Poznań Court of Appeal.
On 27 January 1996 the applicant' s father complained to the President of the Poznań Court of Appeal about the length of proceedings in the applicant’s case.
In a letter of 30 January 1996 the President of the Zielona Góra Regional Court informed the applicant that the court had many times requested the experts to submit their report to the court, but to no avail. Under applicable laws, the court had no means at its disposal to oblige the experts to speed up their work, if the experts had provided justification of the delay in the submission of their report. The court had recently been informed that the report and the case-file would be returned to the court in February.
On 29 February 1996 the applicant complained to the Minister of Justice about the excessive length of proceedings in his case. He submitted in particular that the Regional Court had failed to date to transmit his appeal against the decision of 2 November 1995 to the Court of Appeal.
On 3 March 1996 the applicant complained to the Supreme Court about the excessive length of the criminal proceedings against him.
On 13 March 1996 the Poznań Court of Appeal upheld the decision of 2 November 1995. The Court held that the lower court, albeit it had been laconic in its reasoning, was right in considering that the applicant’s detention should not be lifted, in particular in the light of the evidence gathered in the case which pointed to his guilt. The court further stated that in the assessment of the applicant’s detention one fundamental argument should be kept in mind, namely that one of the purposes of the preventive measures was to keep in isolation dangerous offenders charged with serious crimes. The court further considered that the psychiatric expert opinion, which was being prepared, was necessary for the determination of the applicant’s criminal responsibility and that it was in the applicant’s interest that such a report be submitted to the court examining the merits of the case. The court further acknowledged that their significant length should be regarded as a shortcoming of the proceedings and that the court should undertake certain measures in order to expedite the experts’ work. However, the fact that the experts were slow in the preparation of their report could not in itself justify the applicant’s release. The court further considered that the circumstances referred to in Article 218 of the Code of Criminal Procedure did not obtain in the case.
In a letter of 29 March 1996 the President of the Poznań Court of Appeal informed the applicant, in reply to his complaint of 27 January 1996, that he had found no grounds on which to take any measures, within the framework of his administrative supervision over the lower courts, in order to accelerate the proceedings. He further stated that the applicant’s appeal against the decision of 2 November 1995 had been forwarded by the Regional Court to the Court of Appeal on 29 February 1996.
On 1 April 1996 the court received three opinions, numbering 167 pages, prepared by the Kraków University Psychiatry Department. On 6 May 1996 these opinions were sent to the Pruszków Psychiatry Institute for comments.
On 10 May 1996 the applicant lodged a request for release with the Zielona Góra Regional Court.
On 5 June 1996 the request was dismissed by the court. The Zielona Góra Regional Court found that the evidence gathered in the case sufficiently supported the suspicion that the applicant had committed a dangerous offence and that the circumstances referred to in Article 218 of the Code of Criminal Procedure did not obtain. The court further considered that, in the light of a recent medical certificate, the applicant, contrary to his submissions, could be treated in the prison hospital.
On 16 June 1996 the applicant lodged an appeal against this decision, emphasising that his detention had lasted almost four years and that, consequently, it had ceased to serve any preventive purpose and should be regarded as serving a sentence. It was further submitted that there was no indication that, if released, the applicant would try to suppress evidence or otherwise jeopardise the proper course of the proceedings. The applicant finally referred to an expert opinion according to which he had suffered from brain damage and that there was a suspicion of certain progressive illness.
On 16 July 1996, upon the applicant appeal, the Poznań Court of Appeal upheld the decision of 5 June 1996. The court noted that the applicant was accused of a serious crime and that the evidence, the full assessment of which would be made by the court examining the case on the merits, and in particular the evidence of four witnesses, R.D., A. P., G. M. and E. S., pointed out to his guilt. The court further observed that the proceedings remained pending exclusively as a result of the fact that the applicant had to undergo psychiatric examinations, which were necessary for the case to progress and which were in the applicant’s interest. The court finally noted that the applicant suffered from hypertension which could be treated by the prison medical services.
On 2 August 1996 the Pruszków Institute submitted their comments on the expert opinions of the Kraków University to the court.
On 7 August 1996 the Zielona Góra Regional Court lodged a request with the Supreme Court under Article 222 § 4 of the Code of Criminal Procedure, submitting that the applicant should be maintained in detention on remand until 31 December 1996. The court submitted that all the evidence relevant to the case had been taken, the only exception being that relating to the applicant’s mental state tempore criminis. The court had at its disposal two contradictory psychiatric expert opinions in this respect, and, consequently, it requested that a third one be prepared to elucidate the discrepancies between the contradictory assessments of the applicant’s mental state. Despite their declaration, the experts had failed to submit the report to the court by July 1996. Therefore the applicant’s detention should be maintained.
On 19 August 1996 the applicant requested the Supreme Court to dismiss the motion of the Zielona Góra Regional Court.
On 24 September 1996 the Supreme Court refused to entertain the request of the Regional Court. The Court referred to Article 10 (a) of the Interim Law of 1 December 1995 and considered that in the light of this provision the Regional Court was not obliged to submit the request for the prolongation of the applicant’s detention if the period of the detention so prolonged would end before 1 January 1997.
On 24 October 1996 the applicant requested again to be released, arguing in particular that he had already been detained for four years. He submitted that his excessively long detention did not have any basis in applicable laws. He further referred to his health, which had been deteriorating as the medical care provided by the prison medical services was inadequate.
The hearing fixed for 19 November 1996 was adjourned as the experts of the Kraków University informed the court that they would be unable to attend it.
By a decision of 21 November 1996 the applicant’s request of 24 October 1996 was dismissed by the Zielona Góra Regional Court. The court considered that the need to maintain the detention still persisted since there was a reasonable suspicion that the applicant had committed a serious crime which carried a risk of a long-term imprisonment. The court also stated that in the applicant’s case the circumstances referred to in Article 218 of the Code of Criminal Procedure did not obtain.
At the hearing on 10 December 1996 the Court examined experts L.C., J.W., T.G., D.H., E.M., J.H., J.G., Ju.G. and J.D. On 13 December 1996 the parties presented their final conclusions.
On 16 December 1996 the Regional Court in Zielona Góra convicted the applicant of manslaughter, acquitted him of other charges and sentenced him to fourteen years of imprisonment.
On 19 March 1997 the Regional Court dismissed the applicant’s request for release.
On 30 June 1997 the applicant and on 2 July 1997 the Prosecutor lodged their appeals with the Poznań Court of Appeal.
On 20 August 1997 the Court of Appeal dismissed the applicant’s appeal against the decision of 19 March 1997.
On 28 October 1997 the Poznań Court of Appeal upheld the judgment of 16 December 1996.
On 29 December 1997 the applicant lodged a cassation appeal with the Supreme Court. In reply, on 18 February 1998 the Poznań Public Prosecutor of Appeal requested the Supreme Court to dismiss this appeal.
On 30 July 1998 the Poznań Court of Appeal refused to stay the enforcement of the sentence.

On 6 December 1999 the Supreme Court dismissed the applicant’s cassation appeal, considering that it was manifestly ill-founded.
B. Relevant domestic law
a) Evolution of Polish criminal law in the relevant period
Polish criminal legislation was amended several times during the relevant period. The Code of Criminal Procedure enacted in 1973 (“old” Code) was replaced by a new Code of Criminal Procedure, adopted by Parliament (Sejm) on 6 June 1997, which entered into force on 1 September 1998.
The “old” Code was significantly amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes. This Law entered into force on 1 January 1996. However, the entry into force of the provisions concerning imposition of detention on remand was postponed until 4 August 1996. In pursuance with these provisions, detention on remand was imposed by a judge (whereas before it was imposed by a prosecutor - see section (b) below).
The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (commonly referred to as “the Interim Law of 1 December 1995”) entered into force on 1 January 1996.
b) Preventive measures
The Polish Code of Criminal Procedure (“old”), applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.
After the bill of indictment was transmitted to the court, relevant orders were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.
c) Grounds for detention on remand
Article 217 of the “old” Code of Criminal Procedure, as applicable at the relevant time, provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his/her identity could not be established. Further, detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings. Finally, alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society (“wysokie społeczne niebezpieczeństwo czynu”), or that he had been acting in conditions of relapse into crime (“recydywa”) within the meaning of the Criminal Code.
The notion of “danger to society” as set out in the Criminal Code related to the assessment of the seriousness of criminal offences and, if the "danger to society" represented by a given offence was serious, this was also an aggravating circumstance which the court had to take into consideration when determining a sentence.
Pursuant to Article 218 of the “old” Code of Criminal Procedure, if there were no special considerations to the contrary, detention on remand should not be imposed or should be lifted, if it involved danger to life or limb or entailed particular hardship for a suspect or his family.
After the Interim Law of 1 December 1995 entered into force on 1 January 1996, the grounds for imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding, or that a suspect would go into hiding, in particular when his identity could not be established or he had no permanent domicile. Secondly, detention could be imposed if there was a reasonable risk that he would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means.
d) Proceedings to examine the lawfulness of detention on remand
At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release. Under Article 221 § 2 of the “old” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor (see above). Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention on a prosecutor's request. Lastly, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
e) Statutory time-limits for detention on remand
Until 4 August 1996 the law did not fix any time-limits concerning detention on remand in judicial proceedings. During the investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given upon a request of the Prosecutor General
Article 222 of the Code of Criminal Procedure, as applicable from 4 August 1996, insofar as relevant, provided:
"3. The whole period of detention on remand until the date on which the first-instance court gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the merits of the case, ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits set out in § 3.”
However, as already mentioned (see above (a) “Evolution of Polish criminal law in the relevant period”) under Section 10 (a) of the Interim Law of 1 December 1995 different rules applied in respect of persons whose detention on remand started prior to 4 August 1996. This section provided:
“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Section 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be maintained in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Section 222 § 4 of the Code of Criminal Procedure.
2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be quashed not later than 1 January 1997.”
A ”request” within the meaning of Section 222 § 4 of the Code of Criminal Procedure took the form of a “decision” (postanowienie) by the court concerned.
Under all the relevant provisions of the Code of Criminal Procedure read together, a detainee was entitled to appeal against any decision prolonging his detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings. However, no appeal lay in law either against a decision containing a request under Section 222 § 4, or against a decision of the Supreme Court granting such a request.


ITEMID: 001-88159
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOPIJ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi
TEXT: The applicant, Mr Janusz Kopij, is a Polish national who was born in 1953 and lives in Malbork. He was represented before the Court by Mr M. Romanowski, a lawyer practising in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 May 2002 the applicant was arrested by the police.
On 23 May 2002 the Gdańsk District Court decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had committed an armed robbery as a member of an organised criminal gang.
On 13 August and 14 November 2002 the Gdańsk Regional Court (Sąd Okręgowy) further extended his detention relying in particular on the risk that a heavy sentence would be imposed, which made it probable that the applicant would interfere with the course of the investigation. Moreover, the complexity of the proceedings justified keeping the applicant in detention.
Subsequently, the applicant’s pre-trial detention was extended, inter alia, on 19 December 2002 and 11 March 2003. The Regional Court reiterated the original grounds given for his detention and held that keeping the applicant in custody was necessary for securing the obtaining of evidence.
On 7 May 2003 the Gdańsk Court of Appeal (Sąd Apelacyjny), upon an application from the Gdańsk Regional Prosecutor (Prokurator Okręgowy), further extended the applicant’s pretrial detention. In addition to reiterating the grounds relied on previously, the court considered that the complexity of the case and the large number of coaccused justified the fear that, if released, the applicant would interfere with the course of the proper conduct of the proceedings.
On 16 June 2003 the applicant and 14 other co-accused were indicted before the Gdańsk Regional Court. The applicant was accused of having participated in an organised criminal gang, having committed two armed robberies and having been in possession of an illegal firearm.
On 26 June and 18 December 2003 the Gdańsk Regional Court extended the applicant’s pretrial detention. It considered that the severity of the possible sentence justified the fear that, if released, the applicant would attempt to influence witnesses or abscond.
Afterwards, as the length of the applicant’s detention had reached the statutory timelimit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Gdańsk Court of Appeal (Sąd Apelacyjny) asking for the applicant’s detention to be extended beyond that term. On 12 May, 22 September and 28 December 2004 the Gdańsk Court of Appeal allowed the applications and extended his pretrial detention. The court reiterated the grounds given previously.
On 14 June and 22 November 2005 the applicant’s detention was further extended. The court observed that the period of detention had not been excessive given the complexity of the case and the need to secure the proper course of the final stages of the trial.
On 27 February 2006 the applicant’s detention was further extended.
The applicant’s numerous applications for release and appeals against the decisions prolonging his detention were to no avail.
On 30 May 2006 the Gdańsk Regional Court gave a judgment convicting the applicant as charged. The applicant was sentenced to ten years’ imprisonment.
On 26 April 2007 the applicant lodged an appeal with the Gdańsk Court of Appeal. The proceedings are pending and the applicant remains in detention.
Between 15 April 2004 and 17 January 2007 the applicant served a sentence of imprisonment ordered in another set of criminal proceedings.
The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


ITEMID: 001-90990
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: DOSOUDIL AND CHYTRACKOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Mr Martin Dosoudil and Ms Jindra Chytráčková, are Czech nationals who were born in 1940 and 1941 respectively and live in Prague. They were represented before the Court by Mr J. Ondroušek, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
i. By a judgment of 20 December 1994, the Benešov u Prahy District Court (Okresní soud) decided that a restitution agreement concluded between a state enterprise H. and the applicants on 18 September 1992 was null and void. On 14 November 1995 the Prague Regional Court (Krajský soud) upheld this judgment.
ii. On 24 March 1992 the applicants brought restitution proceedings against that state enterprise.
By a judgment of 7 September 2001 the District Court ordered the state enterprise to conclude a restitution agreement with the first applicant. In respect of the second applicant the court found that she had introduced her restitution action outside the statutory time-limit; her claims were therefore dismissed.
On 15 January 2003 the Prague Regional Court upheld the first-instance court's judgment.
On 29 May 2003 the first applicant filed a constitutional appeal complaining about delays in the restitution proceedings. He further alleged a violation of his property rights.
On 23 October 2003 the Constitutional Court (Ústavní soud) dismissed the first applicant's constitutional appeal.
On 29 June 2004 the Supreme Court (Nejvyšší soud) rejected an appeal on points of law (dovolání) by the state enterprise H. against the Prague Regional Court's judgment of 15 January 2003.
iii. On 10 July 2003 the first applicant brought an action for eviction of a private company H.I. Ltd. from the property he had recovered as a result of the restitution proceedings. According to the information in the case file, the eviction proceedings were terminated on 8 June 2005 when the parties agreed to a friendly settlement.
iv. On 1 August 2003 the first applicant brought an action in the Benešov District Court against H.I. Ltd. seeking payment of rent arrears for the period during the eviction proceedings. This action seems to be still pending.
v. In a letter of 3 July 2006 the applicants informed the Court that they intended to seek non-pecuniary damages for the length of the restitution proceedings by means of an application to the Ministry of Justice. The outcome of the proceedings is unclear from the case file.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are set out in the Court's decision in the case of Vokurka v. the Czech Republic ((dec.) no. 40552/02, §§ 11, 25-33, 16 October 2007).


ITEMID: 001-96147
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VASILCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1940 and lives in Chornobayivka.
6. On 16 August 1999 the applicant was dismissed from his job at the Dzherelo enterprise (Чорнобаївське сільське комунальне господарство «Джерело»), a subsidiary of the municipal entity Oblsilkomungosp (Херсонське обласне виробничо-кооперативне об'єднання сільського комунального господарства «Облсількомунгосп»).
7. In August 1999 the applicant challenged his dismissal and sought compensation before the Dniprovsky District Court of Kherson.
8. On 22 August 2001 the court allowed the applicant's reinstatement claim and ordered Oblsilkomungosp to pay him 4,800 Ukrainian hryvnias (UAH).
9. On 3 September 2001 the State Bailiffs' Service instituted enforcement proceedings.
10. On 6 November 2001 the Kherson Regional Court of Appeal upheld that judgment.
11. On 7 December 2001 the Dzherelo enterprise was formally reorganised into a private company, D.
12. On several occasions the enforcement proceedings were discontinued for various reasons and reopened following complaints by the applicant that these decisions were unfair. It is unclear from the parties' submissions whether the debt under the judgment was paid.
13. In October 2005 the debtor entity was fined for failure to enforce the judgment of 22 August 2001. Additionally, the State Bailiffs' Service requested the local prosecutor to institute criminal proceedings against the managers of Oblsilkomungosp, which request was subsequently rejected.
14. On 7 October 2005 a decision was taken to initiate liquidation of Oblsilkomungosp.
15. On 17 October 2005 the Bailiffs' Service returned the enforcement writ to the applicant unenforced.
16. On 3 July 2006 the Kherson Regional Commercial Court instituted insolvency proceedings against Oblsilkomungosp and on 17 July 2006 declared the company insolvent.
17. On 4 March 2008 the Commercial Court further approved the liquidation balance sheet and declared Oblsilkomungosp liquidated, following which declaration on 19 March 2008 the company was deleted from the State Company Register.
18. On 5 April 2002 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against Oblsilkomungosp, seeking compensation on account of its prolonged failure to reinstate him.
19. On 4 February 2005 the court, finding that the judgment of 22 August 2001 in the part concerning reinstatement had still not been enforced, awarded the applicant UAH 8,081.70.
20. On 24 May 2005 the Kherson Regional Court of Appeal increased this sum to UAH 17,206.
21. On an unspecified date the State Bailiffs' Service instituted enforcement proceedings. On 23 December 2005 the State Bailiffs' Service terminated the enforcement proceedings as the debtor had been liquidated.
22. The judgment of 4 February 2005, as amended by the judgment of 24 May 2005, remains largely unenforced.
23. In September 2005 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against Oblsilkomungosp, seeking compensation for its failure to reinstate him after 5 February 2005.
24. On 14 June 2006 the court, finding that the judgment of 22 August 2001 in the part concerning reinstatement had still not been enforced, allowed his claim and awarded the applicant UAH 9,495.75. The court also found that the applicant had resigned on 14 June 2006 as a result of his employer's liquidation and ordered the liquidation commission to prepare documents for the applicant's pension.
25. On 2 November 2006 the Kherson Regional Court of Appeal quashed that judgment in the part concerning the applicant's resignation and the liquidation commission's obligation to prepare documents for the applicant's pension and gave a new judgment dismissing these claims. The court further upheld the remainder of the judgment.
26. The judgment at issue remains unenforced.
27. In October 2005 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against the local department of justice and two local departments of the State Bailiffs' Service, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001.
28. In a judgment of 23 December 2005 the court ordered the defendants jointly to pay the applicant the total amount of UAH 6,000.
29. On 8 June 2006 the Kherson Regional Court of Appeal quashed that judgment in the part concerning the obligation of the local department of justice to pay the applicant compensation and rendered a new one dismissing this claim and reducing thereby the amount awarded to UAH 4,000.
30. On an unspecified date the State Bailiffs' Service instituted enforcement proceedings.
31. On 23 November 2006 it returned the writs of enforcement to the applicant owing to the debtors' lack of funds.
32. On 14 December 2006 the Dniprovskiy District Court of Kherson amended its previous judgment, awarding the applicant an additional amount of UAH 40 in court fees.
33. The judgment of 23 December 2005 as amended, remains unenforced.
34. In February 2002 the applicant instituted proceedings in the Dniprovsky District Court of Kherson against Y. and G., the manager and his deputy, of Oblsilkomungosp, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001. In a final decision of 9 December 2003 the Supreme Court of Ukraine dismissed his claim. Later, the applicant requested the courts to review the impugned judgment under the extraordinary procedure, but in vain.
35. The applicant also requested a local prosecutor to institute criminal proceedings against the above-mentioned persons. However, on 7 October 2002 the prosecutor found no prima facie case for instituting the proceedings as requested. The applicant appealed against that decision but in a final decision of 20 April 2004 the Supreme Court of Ukraine dismissed his appeal. Subsequently, the applicant requested the courts to review the impugned decision under the extraordinary procedure, but to no avail.
36. The applicant further claimed compensation from the local prosecutor's office for its failure to enforce the judgment of 22 August 2001. On 20 December 2002 the Suvorovskiy District Court of Kherson found against the applicant. On 27 March 2003 the Kherson Regional Court of Appeal upheld that judgment.
37. In November 2002 the applicant instituted proceedings in the Komsomolskiy District Court of Kherson against Oblsilkomungosp and the local State Administration, seeking to have the reorganisation of Dzherelo declared void. On 5 August 2004 the court dismissed his claim. On 10 November 2004 the Kherson Regional Court of Appeal upheld that judgment. Subsequently, the applicant requested the courts to review the impugned judgment under the extraordinary procedure, but to no avail.
38. In January 2003 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against Oblsilkomungosp, seeking the annulment of the reinstatement orders of 17 September 2001 and 24 April 2002. On 6 August 2003 the court dismissed his claim. On 3 December 2003 the Kherson Regional Court of Appeal upheld that judgment. Later, the applicant unsuccessfully requested the courts on several occasions to review the impugned judgment under the extraordinary procedure.
39. On an unspecified date the applicant instituted proceedings in the Suvorovskiy District Court of Kherson against the local department of justice, seeking compensation for non-pecuniary damage incurred as a result of the lengthy non-enforcement of the judgment of 22 August 2001. In a judgment of 15 May 2003 his claim was dismissed. The applicant did not appeal against that judgment.
40. On an unspecified date the applicant instituted proceedings in the Supreme Court of Ukraine against the State of Ukraine and its President. On 13 October 2006 the court dismissed his claim, stating that it should have been lodged with a relevant district court.
41. In December 2007 the applicant instituted proceedings in the Dniprovskiy District Court of Kherson against Oblsilkomungosp and other persons, seeking, inter alia, to have the judgment of 22 August 2001 reviewed under the extraordinary procedure. It appears that the proceedings are still pending before that court.
42. The relevant domestic law is summarised in the judgment of Vasylyev v. Ukraine, (no. 10232/02, §§ 19-22, 13 July 2006).
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-76313
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GRENKO v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1979 and lives in Braslovče.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 22 July 1996 the applicant was injured in a car accident caused by a third person. The perpetrator’s liability was insured with the insurance company T. (“T”).
8. On 19 April 1999 the applicant instituted indemnity proceedings in the Celje District Court (Okrožno sodišče v Celju), claiming damages in the amount of 25,256,340 tolars (SIT). He requested to be exempted from payment of the court fees.
9. On 31 August 1999, 3 January and 14 November 2000 and on 19 January 2001 the applicant filed pleadings and/or submitted fresh evidence and/or requested that a date be set for a hearing.
10. On 5 February 2001 the hearing was held and the applicant’s proposal for the appointment of a traffic expert was upheld.
11. On 21 March, 21 May and 18 September 2001 the applicant requested that a date be set for a hearing.
12. On 9 May 2002 the applicant filed pleadings and submitted new evidence.
13. On 6 June 2002 the court requested the Žalec Local Court to consult a case-file in criminal proceedings. On 28 June 2002 the latter replied that the criminal proceedings were still pending before the Higher Court. On 2 June 2002 the Celje District Court repeated its request and on 11 September 2002 it received the criminal case-file.
14. On 4 September 2002 the applicant filed pleadings.
15. On 18 October 2002 the applicant requested that a date be set for a hearing.
16. On 10 January 2003 a hearing was held. The court upheld the applicant’s request to appoint two experts lodged on 23 January 2003. On 2 February 2004 they submitted their expert opinions.
17. On 18 February 2004 the applicant filed submissions.
18. On 16 March 2004, following the Court’s dismissal of one expert, a new expert was appointed.
19. On 23 March 2004 the applicant filed pleadings and on 17 May 2004 he requested that a date be set for a hearing.
20. On 9 June 2004 the applicant increased his request.
21. On 22 June and 21 September 2004 hearings were held.
22. On 8 October 2004 the court delivered a judgment, upholding the applicant’s claim in part. The judgment was served on the applicant on 23 November 2004.
23. On 3 December 2004 the applicant lodged an appeal and requested the District Court to correct the judgment.
24. The proceedings are pending.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87886
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF STAROKADOMSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Reminder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1971 and is serving a sentence of imprisonment in the Sverdlovsk Region.
6. On 31 January 1998 the applicant was arrested. On 3 February 1998 the Yaroslavl regional prosecutor authorised his detention. On 14 April 1998 the Frunzenskiy District Court of Yaroslavl confirmed the detention order.
7. On 6 February 1998 the applicant was charged with aggravated murder. On an unspecified date, he was transferred to Moscow.
8. On 1 September 1998 the Preobrazhenskiy District Court of Moscow dismissed the applicant's complaint about an extension of his detention. On 17 September 1998 the Moscow City Court upheld the District Court's decision.
9. In September 2000 the criminal case against the applicant was listed for trial. On 29 September 2000 the Moscow City Court held that the measure of restraint in respect of defendants, including the applicant, had been lawful and should remain unchanged.
10. On 3 July 2002 the City Court extended the applicant's and his co-defendants' detention for three months, that is for the period from 1 July to 1 October 2002. The court relied on the fact that the defendants had been charged with particularly serious criminal offences. The applicant appealed against this decision on 12 July 2002. On 2 April 2003 the Supreme Court of the Russian Federation dismissed his appeal, finding that the trial court had authorised the extension in compliance with the applicable procedure and that the defendants could not be released in view of gravity of the charges against them.
11. On 30 September 2002 the City Court rejected the applicant's application for release, noted the gravity of the charges and, without giving further reasons, extended his detention on remand. The applicant lodged an appeal against that decision on 10 October 2002. On 12 February 2003 the Supreme Court dismissed it in the following terms:
“...the defendants have been charged with particularly serious criminal offences. The court...extended the term of their detention. There were no breaches of the rules of criminal procedure that could entail quashing or amendment of that decision...The defendants' request to be relieved of the preventive measure fails because the defendants have been charged with particularly serious criminal offences.”
12. On 18 December 2002 the City Court authorised a further extension relying solely on the gravity of the charges. According to the Government, the applicant had mistakenly submitted an appeal against this order directly to the Supreme Court. In March 2003 the Supreme Court returned the case file to the City Court for a proper notification of the parties and preparation of the case file. The file was submitted to the Supreme Court on 24 July 2003. The appeal was examined on 16 October 2003 (see below).
13. On 24 March, 30 June and 30 September 2003 the City Court extended the applicant's detention with reference to the gravity of the charges. The applicant and his co-defendants appealed on unspecified dates.
14. According to the Government, the remand file regarding the order of 30 September 2003 reached the Supreme Court on 26 March 2004; it examined the appeal against it on 22 April 2004 (see below).
15. On 16 October 2003 the Supreme Court considered the appeals against the extension orders of 18 December 2002, 24 March and 30 June 2003. Neither the applicant nor his counsel was present. The Supreme Court found that there had been no procedural violations which warranted an amendment or quashing of the contested orders, and that the defendants could not be released due to the gravity of the charges.
16. On 30 December 2003 the City Court extended the defendants' detention, noting that the defendants had been charged with particularly serious criminal offences and that, they might abscond or obstruct justice.
17. On 30 March 2004 the City Court extended the defendants' detention on remand until 1 July 2004, indicating that:
“...[the defendants] have been charged with several counts of serious and particularly serious criminal offences committed by an organised gang in conspiracy with unidentified persons, against whom separate criminal proceedings are pending, and with another person, against whom criminal proceedings were disjoined because his whereabouts are not known; if released, [they] may abscond or obstruct justice”.
The applicant's appeal against that decision was submitted to the City Court in April 2004. The file was received by the Supreme Court on 28 June 2004. A hearing was scheduled for 14 July 2004 but was adjourned for a decision on the composition of the bench. The appeal was examined on 22 July 2004 (see below).
18. On 22 April 2004 the Supreme Court upheld the order of 30 September 2003 on the same grounds as before. The court also refused the applicant's request for leave to appear at the appeal hearing because it was to be conducted without a prosecutor and because the applicant's arguments had been set out in sufficient detail in his notice of appeal.
19. On 1 July 2004 the City Court extended the defendants' detention until 1 October 2004, reproducing verbatim the reasoning of its decision of 30 March 2004.
20. On 22 July 2004 the Supreme Court upheld the order of 30 March 2004 and endorsed the City Court's reasoning.
21. On 27 October 2004 the City Court convicted the applicant as charged and sentenced him to ten and half years' imprisonment. On 10 November 2004 the judgment was pronounced in public. On 15 November 2005 the Supreme Court upheld the judgment.
22. From May 1998 to December 2005 the applicant was detained in Moscow remand centre no. 77/1, also known as “Matrosskaya Tishina”.
23. The applicant provided the following description of his conditions of detention:
From May 2001 to September 2004 he had been kept in cell no. 274 measuring sixteen square metres. That cell had never housed fewer than ten prisoners and occasionally as many as eighteen. The applicant had never had a bed he could call his own and slept in shifts with other prisoners on bunk beds. The bunk beds had been short and the space between them did not allow a detainee to remain in a seated position. The remaining floor-space had been occupied by a long table.
Windows had not been glazed but instead covered with thick bars and slanted plates welded to a metal screen approximately 2 cm apart. Those arrangements had impeded access to natural light and air. In winter, prisoners had stuffed blankets and mattresses in the window frame to keep the warmth inside. The walls, the ceiling and the floor were blackened by smoke, musty and badly damaged. Lights remained on day and night. The cell was infested with bugs, lice, fleas and cockroaches. The air had been stale and full of smoke. The cell had no ventilation whatsoever; ventilation conduits had been cemented in or stuffed with rubbish. Running water was cold and rusty, unfit for drinking. The lavatory pan had been approximately 30 cm in height; it had not been separated from the living area. Showers had been allowed once a month. No items of hygiene such as soap or toilet paper had been provided. There had been no replacements of bedding and no facilities for washing clothes.
From 9 September 2004 the applicant had been kept in cell no. 243, measuring twelve or thirteen square metres and with four berths. The cell had accommodated four to six inmates. The window frame had been partly glazed and partly covered with wooden boards. Showers had been allowed two to three times per month. The other conditions of detention had been similar to those in cell no. 274. In support of his submissions concerning cell no. 243, the applicant had produced written statements from his former cellmates.
The applicant denied that he had ever been held in cell no. 260. Rather, from 22 November to 2 December 2002 he had been held in a punishment cell in which his warm clothing had been taken away in exchange for dirty and torn overalls and trousers. From 6 a.m. to 10 p.m. a wooden bench had been lifted and chained to the wall and there had been no seating place, save for a tiny concrete post. There had been no heating. He had had no access to the shower. His books and legal documents had been taken away.
None of the cells had been renovated or cleaned during the relevant periods of time.
During the trial the applicant had not been allowed a daily one-hour outdoor walk; he had had no other out-of-cell activity. The courtyard was extremely dirty; it had no benches or shelter from inclement weather.
24. The Government submitted the following description of the applicant's conditions of detention:
The report of 1 February 2005 issued by the remand centre, and produced by the Government, records that the applicant was detained in a number of different cells, as follows:
From May 1998 to 31 May 2001 the applicant was held in cells nos. 311, 109, 410 and 267.
From 31 May 2001 to 22 November 2002, and from 5 May 2003 to 11 September 2004 the applicant was held in cell no. 274. It measured 16.3 square metres and was designed for eight persons. It housed five prisoners during the second period mentioned. A report of 1 February 2005 issued by the remand centre, and produced by the Government, states that the logbooks for the period preceding 2001 had been destroyed as the retention period had expired.
From 22 November 2002 to 5 May 2003 the applicant was held in cell no. 260. It had eighteen sleeping places and accommodated eight prisoners in the period from 22 February 2002 to 5 May 2003.
From 11 September 2004 to 23 December 2005 the applicant was held in cell no. 243. It measured 10.8 square metres and was designed for four persons. It housed two persons during the relevant period of time. According to a report of 21 February 2006 issued by remand centre no. 77/1, the applicant had been detained in that cell from 11 April 2004 to 23 December 2005 with three other inmates.
According to the above-mentioned report of 1 February 2005, the logbooks indicating the number of detainees held in the same cell(s) with the applicant between 1998 and 2001 had been destroyed on an unspecified date. It appears from the report of 21 February 2006 that the logbooks for 1998-2003 were destroyed in August 2004.
The windows in the cells gave access to natural light sufficient to read or write by. According to another report of 1 February 2005 issued by remand centre no. 77/1, the window frames “were glazed for the winter period”. The intensity of artificial lighting was reduced at night.
In early 2005 sanitary inspectors visited the remand centre. According to their report dated 2 February 2005, some of the above-mentioned cells had been renovated between 1998 and 2004. At the moment of the inspection, all cells had a sink and a toilet pan; in most of the cells a concrete partition separated the lavatory from the living area; the cells were naturally ventilated through ventlights and a system of exhaust ventilation; the cells had central heating; all prisoners had bedding and could take a shower once a week.
Punishment cells were equipped with a folding bed, seating, a table, a sink, a lavatory and a system of ventilation and lighting.
Detainees were allowed a daily one-hour walk. The remand centre had three courtyards measuring forty, forty-two and fifty-six square metres for the detainees' outdoor activity.
25. The applicant submitted that between 2000 and 2004 he had been transported between Moscow City Court and the remand centre on no less than one hundred and ninety-five days. He gave the following description of the days when he had been taken to the courthouse:
On each occasion he had been taken out of the cell at 5 or 6 a.m. and had not been given breakfast. No other food or drink had been made available because, in accordance with the established administrative practice, on the days of court hearings he had been excluded from the food distribution list. Once out of their cells, detainees had been brought to the assembly section of the remand centre. Over a hundred detainees had been divided between collective and “individual” cells: forty to fifty persons in a collective cell or up to nine persons in an “individual” cell of one square metre. Cells had been extremely dirty and had no benches, windows or ventilation. Detainees had been refused access to a toilet during their presence at the assembly section and had to relieve themselves in a bucket. The air had been stale and full of smoke. Detainees had waited for their departure until 9.30 or 10 a.m.
Prison vans had transported forty to fifty persons so that they had to sit on each other's laps. In the absence of appropriate seating and fixtures for each detainee, they had been exposed to a considerable risk in the case of a traffic accident. Ventilation and heating had not functioned in the van. At around 7 or 8 p.m. or later prisoners were called back to prison vans and taken to remand centres. After several hours of travel, the applicant was then brought back to his cell in the remand centre at around midnight or later.
At the Moscow City Court prisoners had been put in thirty “convoy cells” measuring 1 or 1.5 square metres each. The applicant had been placed in such a cell with two or three other persons. The walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on them. There had been no bench, no ventilation, no heating and no access to natural light. He had not had unlimited access to a toilet. The applicant stayed in the cell until 7 or 8 p.m. or later.
26. The Government submitted that the applicant had been transported from the remand centre to the Moscow City Court between 2001 and 2003. In 2004 he had not been transported because the proceedings had been held in the remand centre.
The applicant had been taken out of his cell at around 6 a.m. and had been provided with a hot meal. He had then been brought to the assembly section of the remand centre where all detainees awaiting departure for court hearings had been gathered. The assembly section had eight cells measuring between 12.7 and 17.9 square metres each. Each cell had a bench, toilet facilities, windows and artificial lights. According to a report of 21 February 2006 issued by the remand centre, there had been no overcrowding in those cells in 2002 and 2003.
The applicant had been provided with a meal after his return to the remand centre. He had also been given a dry ration for the remainder of the day and had been allowed to bring food purchased in the prison shop or received from his relatives. The Government submitted that the catering logs had been destroyed because the retention period had expired.
The applicant was transported in vans GAZ-3307(3309) and ZIL-4331. The detainees' section of the GAZ van measured 3.8 m (length) by 2.35 m (width) by 1.6 m (height). Such a van had one individual compartment and two compartments for twelve persons each. The detainees' section of the ZIL van measured 4.7 m by 2.4 m by 1.64 m and had two individual compartments and two compartments for seventeen persons each. Both types of vans also had three or four seats for convoy officers.
Vans were equipped with fixed benches so that each detainee was provided with individual seating. Van walls had insulating lining. Van heaters and lights were powered by the van engine so that the heating and lighting systems were operational when the engine was running. Vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow.
Relying on statements from three convoy officers, the Government affirmed that the maximum passenger capacity of the vans had never been exceeded.
The Government submitted that the transportation logbooks for 2001 and 2002 had been destroyed because the retention period had expired.
In 2003 the applicant was transported to the courthouse fifty-eight times, mostly by the GAZ-3307 and ZIL vans. It appears from the logbook for 2003 that the applicant was transported in the GAZ van together with twelve to twenty-three detainees and several convoy officers; in the ZIL van, on many occasions, with no less than twenty and up to thirty-two detainees and several convoy officers. The reports produced by the Government and an excerpt from the logbook for 2003 show that the vans normally left the remand centre between 9 and 10.40 a.m. and returned before 6.30 p.m. On several occasions they returned to the remand centre after 9 p.m. and the average travel time on the way back amounted to three hours. Reports of 2 February 2005 and 27 February 2006 issued by the Moscow Department of the Interior show that the itinerary included stops at district courts and other remand centres; the transfer normally ended before 10 p.m. but there were sometimes late court hearings or traffic jams. According to the Department's report of 2 March 2006, the applicant had a direct transfer between the remand centre and the City Court.
Prior to their renovation in 2003 and 2004, the convoy premises of the Moscow City Court had consisted of three blocks of cells, each comprising seventeen cells and a toilet. The applicant had access to a toilet before or after each hearing or at any other time upon request. Cells measured 1.9 m by 1 m. Each cell had a bench and was equipped with ventilation, lighting and central heating. In winter the average temperature was 18 to 20o C. The applicant had been held separately from other defendants. A report of 2 March 2006 issued by the Moscow convoy regiment states that the design capacity of the cells had not been exceeded and detainees had been provided with hot water at the premises of Moscow courts.
27. In 2003 the applicant complained about unsatisfactory conditions of transport, hunger and overcrowded prison vans.
28. On 26 November 2003 the Moscow Department of Execution of Sentences reported on the results of an inquiry as follows:
“On leaving for the court each prisoner receives a dry ration in his own hands and against his signature... On that day the prisoner is excluded from the food distribution list. The composition of the dry ration takes account of the sanitary and nutritional requirements and... includes pre-cooked first and second courses which do not require cooking and can be consumed as breakfast, lunch or dinner...
The matter of providing [prisoners] with hot water was discussed with the President of the Moscow City Court...
Prisoners are taken out of cells after 6 a.m. – in particular, for transport to courts – and brought back to cells before 10 p.m... The Department of Execution of Sentences controls the [resolution of] problems relating to the existing breaches by the convoy regiment (late return from the courts, overcrowded prison vans, use of unauthorised routes). On many occasions in 2002 the established breaches of the procedure for transport of prisoners were brought to the attention of the command of the convoy regiment – mostly because of late return from the courts. Such incidents also took place in the first three months [of 2003]; in that connection on 4 March 2003 a notice about the late return (after 10 p.m.) of prisoners from the courts in January and February 2003, was sent to the convoy regiment. Recently there have been no incidents of return of prisoners after 10 p.m.
The assembly premises are indeed overcrowded if there are many defendants going to the courts – up to 150 persons, whereas the assembly premises are designed... to accommodate 75 to 80 persons.”
29. On 10 December 2003 the Moscow city prosecutor forwarded the applicant's complaint to the commander of the convoy regiment of the Moscow police.
30. On 17 December 2003 the Moscow convoy regiment established that, contrary to the applicant's allegations, in 2003 the design capacity of prison vans had never been exceeded; the applicant had been transported in a ZIL van together with fifteen to thirty-five detainees. Detainees received dry rations in the remand centre but they could not use them because the convoy premises at the courthouse had no facilities for heating or eating food and because no kitchenware had been available. The officers concluded that the applicant's complaint had been “made up so as to have his conditions of detention improved and to provoke the convoy officers to act unlawfully”.
31. For a summary of the applicable national legislation relating to detention on remand, see the Court's judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005).
32. On 4 May 2001 the Ministry of Justice adopted the Rules on food supply for convicts and persons detained in remand centres. According to Annex no. 3 to these Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient care institutions or convicted juveniles. Those Rules were amended in 2004 and repealed in 2005.
33. On 4 February 2004 the Ministry of Justice adopted the Rules on supply of dry ration, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
VIOLATED_BULLETPOINTS: 5-1-c