ITEMID: 001-112086
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF K.M.C. v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1973 and lives in Pécel.
6. The applicant was a civil servant working in the service of an administrative inspectorate. Applying Act no. LVIII of 2010 on the Legal Status of Government Officials (see below), her employer dismissed her from service on 27 September 2010 without giving any reasons for that dismissal.
7. The applicant did not challenge this measure in court, considering that in the absence of reasons for her dismissal, she could not sue her former employer with any prospect of success. The statutory time-limit in this respect expired on 26 October 2010.
8. On 18 February 2011 the Constitutional Court annulled as unconstitutional the impugned section 8(1) of Act no. LVIII of 2010, as of 31 May 2011 (see paragraph 16 below).
9. On 6 May 2011 the Constitutional Court gave a decision (see paragraph 17 below) concerning the non-applicability of laws, declared unconstitutional, in cases still pending before an ordinary court.
10. Act no. XX of 1949 (the Constitution in force at the material time) provided as follows:
“(1) In the Republic of Hungary, everyone shall be equal before the law and entitled to have any charges brought against him as well as his civil rights and obligations determined in a fair and public trial by an independent and impartial court established by law.”
“(6) All Hungarian citizens shall have the right to hold a public office in accordance with their suitability, qualifications and professional knowledge.”
11. Section 8(1) of Act no. LVIII of 2010 on the Legal Status of Government Officials, as in force between 6 July 2010 and 31 May 2011, provided that a civil servant could be dismissed from service, with a notice period of two months, without the employer giving any specific reasons for the dismissal.
12. Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities provides as follows:
“Provisions resulting in a situation where one person or group is treated less favourably than another is, has been or would be treated in a comparable situation on account of their real or presumed
a) sex, b) racial origin, c) colour, d) nationality, e) belonging to a national or ethnic minority, f) mother tongue, g) disability, h) state of health, i) religious or ideological conviction, j) political or other opinion, k) family status, l) motherhood (pregnancy) or fatherhood, m) sexual orientation, n) sexual identity, o) age, p) social origin, q) financial status, r) the part-time nature of an employment or other work relationship, s) membership in an interest representation organisation, t) other status, attribute or characteristic (hereinafter collectively: characteristics)
shall amount to direct negative discrimination.”
“(1) In proceedings instituted on account of a violation of the equal treatment requirement, the injured party or the party entitled to assert public interest claims shall substantiate that:
a) the injured person or group has suffered a disadvantage, or – in case of asserting public interest claims – an imminent danger thereof exists, and
b) the injured party or group did at the time when the violation of law was committed – actually or according to the presumption of the violator – possess a characteristic specified in Article 8.
(2) If the case described in subsection (1) has been substantiated, the other party shall bear the burden of proving that:
a) the circumstances substantiated by the injured party or the party entitled to assert public interest claims did not exist, or
b) the party complied with the equal treatment requirement, or in respect of the given relationship he was not obliged to comply with the equal treatment requirement.”
“(1) The following shall not amount to violation of the equal treatment requirement:
a) proportionate discrimination justified by the nature or characteristic of the work and based on all the relevant and lawful conditions that are to be taken into consideration for the employment,
b) discrimination on the ground of religious or other ideological conviction or national and ethnic origin directly flowing from the spirit basically determining the nature of the organisation, justified in view of the content or nature of the occupational activity at issue, and amounting to genuine occupational requirement.”
13. Act no. XXII of 1992 on the Labour Code provides:
“(2) The exercise of a right shall, in particular, be construed improper if it is intended for or leads to the impairment of the rightful interests of other persons, the limitation of other persons’ potential for interest assertion, their harassment, or the suppression of the expression of their opinion.”
“(2) With the exceptions specified in subsection (6), employers shall be under a duty to give reasons for a dismissal. The reasons given shall clearly indicate the cause of dismissal. In case of dispute the genuineness and adequacy of the reasons given for the dismissal shall be proved by the employer.
(6) The employer shall be under no duty to give reasons for the ordinary dismissal of an employee if the employee is to be considered a pensioner within the meaning of section 87/A (1) a)-g).”
“(1) Employers shall not terminate an employment by ordinary dismissal during the periods specified below:
a) incapacity for work due to illness ...,
b) for the period of sick leave granted for caring for a sick child,
c) unpaid leave taken for nursing or caring for a close relative (section 139),
d) during a treatment related to a human reproduction procedure specified under a separate Act, during pregnancy, for three months after giving birth, and maternity leave [subsection (1) of section 138],
e) during unpaid leave taken for the purpose of nursing or caring for children [subsection (5) of section 138], until the child reaches the age of three, during the period of eligibility for child-care allowance, irrespective of taking any unpaid leave,
f) during regular or reserve army service, from the date of receiving the enlistment orders or the notice for the performance of civil service,
g) the entire period of incapacity for work of persons receiving rehabilitation benefits under a separate Act of Parliament.”
14. Act no. XXXII of 1989 on the Constitutional Court (as in force at the material time) provided:
“(1) Observing the unconstitutionality of a law applicable in a case before him ... the judge shall ... submit a motion to the Constitutional Court.
(2) Anyone alleging that a law applicable in his case pending before a court is unconstitutional may file a request initiating the judge’s action specified under subsection (1).”
“(1) Anyone who suffered a violation of law on account of the application of an unconstitutional law and has exhausted all other available legal remedies or no other legal remedy is provided for him may, on account of the violation of his rights enshrined in the Constitution, file a constitutional complaint with the Constitutional Court.
(2) The constitutional complaint shall be filed in writing within sixty days from the service of the final decision.”
15. Act no. III of 1952 on the Code of Civil Procedure provides as follows:
“According to the decision of the Supreme Court, a final judgment shall be subject to reopening if a constitutional complaint is sustained by the Constitutional Court with retroactive exclusion, in the given case, of the applicability of the law declared unconstitutional.”
16. Constitutional Court decision no. 8/2011. (II.18.) AB contains the following passages:
“IV. 1. ... Within the confines of the Constitution, the legislator enjoys great freedom in regulating public service relationships. ... In 1992 in the public sector – where the legal positions of both the employers and the employees are determined by their dependence on the State budget – public-law regulations, basically corresponding to the characteristics of the closed public service system, were introduced. The legal status of the individuals who perform work in the service of the State was – according to the specific features of the activities performed – governed by the legislature in separate Acts of Parliament. ... The basic feature of the closed public service system is that the content of the public service relationship and the rights and duties of the subjects of the legal relationship are governed not by the parties’ agreement but by statutes, by law. ... The content of the public service relationship is regulated under the law, regard being had to the fact that public servants carry out the tasks of the State, and, in performing their tasks, they exercise public powers, consequently – compared to other employees – additional statutory requirements must be imposed on them. The activity of public servants must serve the interest of the public, it must be professional, impartial, devoid of influence and bias, therefore public servants must meet up-to-date and high-standard professional requirements, must bear particular responsibility for their work and are subject to strict conflict-of-interest rules; however, the incomes earned in the public service remain below the wages that can be obtained in the private sector, since the source of public servants’ remuneration is the State budget. The starting point for the closed public service system ... is that « additional requirements – compliance with which may and must be demanded from persons engaged in public service – may only be imposed in return for additional entitlements ». Such additional entitlements include the career system regulated and the salary guaranteed in an Act of Parliament, the predictable and safe ‘public service life career’ system and the additional allowances. A basic characteristic of the closed public service system is the stability of public service relationship, namely that a public servant may be removed from office only where the conditions specified in an Act of Parliament are met. While until the 1980s the public service systems of various States were characterised by the gradual extension of the closed public service system, since then a strongly critical approach to the closed systems has become more and more dominant. As a consequence, in almost all European States, public service reform processes have been launched in order to enhance the efficiency, performance and standards of the public administration. The direction of the reforms is to loosen the rigidity of the closed system, and to bring it closer to the regulation of private sector labour relations. The method generally applied for the loosening of the rigidity of the closed system is the loosening of the previously strictly interpreted concept of ‘non-dismissibility’ and the widening of the grounds of dismissal.
The Hungarian Act on the Legal Status of Public Servants (“Ktv.”) has never been based on the principle of ‘non-dismissibility’, as it has widely recognised the possibility of dismissing public servants from office and the grounds and conditions of dismissal have even been widened in the period having elapsed since 1992. ...
2. ... The Act on the Legal Status of Government Officials (“Ktjt.”) – with its rules on the termination of government official legal relationship – introduced essential changes in the system of public service as it had been created under the Ktv. and terminated the relative stability of the public service relationship guaranteed under the Ktv. ... The Ktv. rules on the termination of the legal relationship by dismissal from office not being applicable ... the government officials’ legal relationship may be terminated by release from office by the employer without giving reasons. ...
3. ... In the context of labour relations as regulated under the Labour Code (“Mt.”) ... the Constitutional Court [...] evaluated the duty of giving reasons – interpreted as a restriction on the employer’s right freely to dismiss an employee – as a privilege providing additional protection for employees, to which protection no person had a constitutional right. The employer’s right freely to dismiss an employee can only be interpreted in the context of employment relationships based on contract, not in the context of civil service relationship based on the Ktjt. In public service relationships the right of dismissal from office is based not on the freedoms of contract but an Act of Parliament; in case of dismissal from office by the employer the duty to give reasons cannot be regarded as a “preference rule”; on the contrary, it is a guarantee flowing from the nature of the legal relationship. ... In public service relationships, the statutory regulations concerning the grounds of dismissal from office constitute an issue of constitutionality, it being a guarantee corresponding to the specific features of public service relationships. [These] regulations and, consequently, the obligation to give reasons for dismissal has ... been regarded by the Constitutional Court ... as a guarantee having constitutional significance ...
4. ... The special features of public-servant and government-official legal relationships ... are determined by the fact that ... officials hold public offices, perform State duties, adopt and prepare State decisions ... therefore those relationships are basically public-law relationships by their nature.
Article 70(6) regulates the right to hold a public office as citizens’ fundamental right. The protection of the right to hold a public office shall primarily mean that the State cannot make employment to public offices dependent on conditions which exclude, without constitutional reasons, Hungarian citizens from the possibility of acquiring a public office or make it impossible for a citizen or a group of citizens to hold a public office. ... The constitutional protection flowing from the right to hold a public office does not mean that the holder of a public office cannot be dismissed from office. ... Within the confines of the Constitution, the legislature enjoys a wide margin of freedom in regulating the grounds for release from office; this freedom, however ... shall not extend to granting free and unrestricted power to the person exercising the employer’s rights to dismiss an incumbent from office. Free decisional power granted without any statutory limitation to the person exercising the employer’s rights ... restricts, according to the Constitutional Court, in an unconstitutional manner the right to hold a public office, provided for by Article 70(6) of the Constitution. [It is required] that the substantive-law framework of the employer’s decision be determined in an Act of Parliament. ...
5. ... As to government officials’ dismissal from office, the absence of grounds for dismissal and the lack of any statutory rules concerning the employer’s obligation to give reasons endangers the ‘party-neutrality’, the independence from political influence, the impartiality and, therefore, the lawfulness of decisions of the public administration. Officials working in the organisation of public administration perform their tasks in a strictly hierarchical organisation. [If] government officials are not granted protection from dismissal from office, the person exercising the employer’s rights may, at any time and without giving reasons, discontinue their employment, [and] they cannot be expected openly to stand up for their professional and legal position, if they risk losing their jobs. ...
6. ... The general judicial legal protection enshrined in Article 57(1) of the Constitution is also guaranteed by Article 6 § 1 of the European Convention on Human Rights. In its recent case-law, the European Court of Human Rights – which has gradually extended the applicability of Article 6 § 1 to labour disputes concerning the service of civil servants (Frydlender v. France [GC], no. 30979/96, ECHR 2000VII; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007II; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009) – considers the right to effective judicial review as part of the right to a fair trial included in the right to access to a court. For the European Court of Human Rights, the judicial legal protection is not effective if there is a procedural or substantive obstacle to a genuine judicial examination of the parties’ claims on the merits (Delcourt v. Belgium, 17 January 1970, Series A no. 11; Barberà, Messegué and Jabardo v. Spain, 6 December 1988, Series A no. 146). ...
The Constitutional Court holds that by failing to regulate the statutory conditions of dismissal from office by the employer and by allowing for the possibility of not giving reasons for the decision, the legislature disproportionately restricted the right of government officials to judicial legal protection, guaranteed under Article 57(1) of the Constitution. In the absence of an obligation to give reasons and of any rules providing guidance for the determination of the lawfulness of a dismissal, the scope of cases (nullity of and barrier to dismissal, violation of equal treatment, misuse of rights) in which a government official may turn to court with any prospect of success and in which the court can decide on the merits of a dismissal has become significantly reduced. Under the Ktjt., in public service-related legal disputes the unlawfulness of a dismissal by the employer must be proved by the government official. An exception to this rule is made in cases when the legal dispute is based on a violation of the equal treatment requirement; in such proceedings – under section 19 of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities – the injured party needs only to substantiate the violation, and it is for the employer to prove that he complied with the equal treatment requirement. Public servants may also turn to court for improper use of rights, violating section 4 of Mt.
... As it can be concluded from the reasoning of the Act, section 8 (1) of the Ktjt. allows – in the interest of simpler realisation of government endeavours – for the possibility of the termination by the employer of government officials’ legal relationship without any legal limits.
... The Constitutional Court holds that this vulnerable position of government officials, their being treated as “means” for resolving State tasks, is contrary to human dignity.”
17. Constitutional Court decision no. 35/2011. (V.6.) AB contains the following passages:
“1. The Constitutional Court holds that it is a constitutional requirement that legal disputes put before a judge be determined on the basis of constitutional laws. If a judge perceives the unconstitutionality of a law applicable in the case pending before the court, he shall ... be obliged to initiate proceedings before the Constitutional Court, under section 38(1) of Act no. XXXII of 1989 on the Constitutional Court (“Abtv.”).
2. In the ‘concrete norm control’ proceedings instituted upon a judge’s initiative, the Constitutional Court may pronounce a general prohibition of the application of the law found unconstitutional in all civil actions with identical factual basis, to be determined under the same law. If only specific, rather than general, prohibition of application has been ordered by the Constitutional Court, the latter shall – upon a further initiative of the judge – conduct the proceedings motioned by the judge solely in respect of the prohibition of application of the law. The legal consequences of the Constitutional Court ruling on the general or specific prohibition of application shall be drawn by the judge in charge who shall deliver a decision in the action in compliance with the ruling.
3.1. An essential objective of the Constitution-protecting tasks of the Constitutional Court is to prevent the prevalence of unconstitutional norms in the legal system. The judge authorised to determine individual legal disputes ... is bound to adopt a decision on the basis of the constitutional interpretation of the applicable law. However, in case of unconstitutionality irresolvable by the interpretation of the law, the judge – lacking the power to set aside the law – shall necessarily cooperate with the Constitutional Court, on the basis of his statutory obligation. To put it another way, in case of unconstitutionality irresolvable by the interpretation of the law, the litigant’s right to a lawful judge shall only prevail in the course of the Constitutional Court proceedings. ... The judge turning to the Constitutional Court shall, on the basis of his obligation flowing from Article 50(1) of the Constitution, act in order to protect the individual rights of the parties concerned in the legal dispute, but he can only comply with this constitutional obligation upon the Constitutional Court’s decision on the merits of the case. ...
3.5. Thus, the purpose of the institution of the judge’s initiative is partly to enforce the litigant’s fundamental right to a lawful judge, and – beyond the abstract protection of constitutionality – partly to prevent that any individual legal dispute be determined ... on the basis of an unconstitutional law.
Thus, when in a given litigation the judge – complying with his constitutional obligation – initiates an examination of the constitutionality of the applicable law, the scope of the unconstitutionality found by the Constitutional Court shall, as a rule, extend to all pending litigations having the same factual and legal basis as the one giving rise to the Constitutional Court proceedings. The legal consequences of the unconstitutionality found and of the general prohibition of application imposed as a result of the examination of the constitutionality in the ‘concrete norm control’ proceedings shall be drawn by the judges sitting in those pending legal actions which do not form part of the Constitutional Court proceedings but have arisen from an identical factual basis and have to be determined under the same law. ....”
18. The European Union Charter of Fundamental Rights provides as follows:
“Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.”
According to the Explanations relating to the Charter of Fundamental Rights [2007/C 303/02)], Article 30 draws on Article 24 of the revised European Social Charter.
19. The revised European Social Charter provides as follows:
“With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise:
a. the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service;
b. the right of workers whose employment is terminated without a valid reason to adequate compensation or other appropriate relief.
To this end the Parties undertake to ensure that a worker who considers that his employment has been terminated without a valid reason shall have the right to appeal to an impartial body.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79042
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF YOUNG v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-c
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1965 and lives in London. In or around late 1999 the applicant breached an earlier probation order (concerning a charge of deception) and was sentenced to six months’ imprisonment. It was her first time in prison.
7. Her term of imprisonment began in November 1999. She was accorded an unconditional release date of 23 January 2000.
8. The applicant suffered from cerebral palsy, a disorder of the central nervous system which can inhibit voluntary muscle control. She used a wheelchair and could only walk a few steps with assistance. She did not have voluntary control of her bladder meaning that on occasion she either could not urinate for several hours or she urinated uncontrollably and required medication to restrain this. The condition did not affect her intelligence but rather her ability to process information so that she required explanations in plain language and sufficient time for full comprehension.
9. A short medical report from a general practitioner dated 15 August 2000 noted that the applicant was a patient of the relevant practice and that her condition could have affected her ability to produce a urine sample on demand as voluntary control of the nervous system is always affected by cerebral palsy. While he suggested obtaining a neurologist’s report on these matters, the applicant stated that she could not afford to obtain one.
10. The prison psychotherapist’s report of 31 January 2000 noted that the applicant had been referred in December 1999 given her distress and difficulties in coping with her imprisonment. It noted as follows:
“Largely confined to a wheelchair, [the applicant] manifests obvious physical symptoms of cerebral palsy as well as somewhat less obvious mental ones. [The applicant] possesses an excellent vocabulary and a reasonably well-developed capacity to think logically that places her well in the highest range of mental functioning for those who have the condition from which she suffers. Thus it seems that she often strikes those who meet her as an individual with a normal range of mental functioning but a difficult personality.
In fact, [the applicant] experiences problems dealing with any sort of symbolism in language: she is openly vocal about her distaste for what she calls slang. Any explanation given to her needs to be couched in concrete terms devoid of metaphor or simile. Often it may be advisable or necessary to write down an explanation so that she may study it at her leisure in order to take it in fully and remember it. When this procedure is followed, she proves well able to make use of information or advice.
From [the applicant’s] standpoint, these features of her mental functioning often make it difficult for her to think things through completely and thus to envision what the consequences of her actions may be. From the view point of those who deal with her, it often may seem that she is being difficult or uncooperative when it is in reality the case that she simply has not fully grasped the nuances of the subject at hand.
[The applicant’s] life circumstances seem to have been troubled and unhappy. She has felt it necessary to fight ferociously to consolidate and maintain her independence. Thus the stay in <prison> appears to have been a sobering experience for her. It seems rather graphically to have brought home to her the consequences of some of her own actions – actions for which she previously had been unable to envisage consequences.
It is difficult for [the applicant] to trust anyone completely, as she feels herself to have been badly let down by key figures in her life (including her mother, foster carers et al). Yet, in a relationship which [the applicant] experiences as one of confidence and caring, she is able to show herself as a warm, even endearing individual.”
11. The applicant was detained in the medical wing of the prison since the normal prison cells were not wheelchair accessible.
12. At about 11.20am on 6 January 2000 a female prison officer asked the applicant to leave her education classes. They were then met by two other female prison officers. One of them asked the applicant if she had heard about MDT. The applicant replied that she had not and she was informed that it was mandatory drug testing. One of the officers requested the applicant to provide a urine sample immediately. The applicant alleged that she said that she would not be able to produce a sample: the Government did not accept this.
13. She was taken to the MDT unit, given a container and asked to provide a specimen. While the applicant claimed that she said again that she could not provide a urine sample, the Government maintained that she simply refused to provide a sample. She claimed that she began to explain why she could not provide a sample but that her explanation was brushed aside. She was offered a cup of water, which she declined. She maintained that this was because she knew that the water would not assist because the problem was not whether her bladder was full or not but whether she had the motor control to provide a specimen on demand and because she was concerned as to whether the water was fresh.
14. The applicant was taken to her cell by the officers and she was told that she could provide her sample there. A female officer remained in the cell with her and the applicant felt distressed by this. She claimed that, at about midday, she reiterated that she could not urinate. She submitted that the prison officer appeared irritated and informed her that she was going to put that down as a refusal which could result in additional days’ detention. The Government claimed that she refused once again to provide a sample.
15. She claimed that the officers who dealt with her were brusque and business-like. None of the officers asked her about her condition or whether she would need assistance in providing the urine sample and she was not offered the possibility of speaking confidentially with a medical officer or a structured manner of providing the sample over several hours. She admitted, however, that she did not explain to them that she could not urinate as a result of her disability. She alleged that she did inform the officers that she was menstruating (the Government disputed this) but, in any event, she accepted that she did not use her menstruation as an excuse for not providing a urine sample.
16. On 7 January 2000, at approximately 7.00-7.30 a.m., a male officer came into the applicant’s cell and read an “official-sounding” paper about “a refusal”. The applicant was asked to sign it but refused to do so. She maintained that this was because she had just woken up and did not understand what was happening. The paperwork was left in her cell. This paperwork appears to have been a notice of report, which informed the applicant that she had been placed on report for the alleged offence of disobeying a lawful order to provide a urine sample.
17. Later that day, she was sent to see the Governor when it was explained to her that she was being “put on report”. There were two officers in the room at the same time. Her account was that, feeling intimidated and not understanding the jargon they were using, she asked if she could have someone with her. The Governor refused, stating that this would only be allowed for someone with severe learning difficulties. The Governor did not ask her if there were any medical reasons why she should be assisted. The Government disputed the applicant’s account of this meeting.
18. The matter was adjourned to the following week, to allow the relevant prison officer to attend to give evidence. In the meantime, the applicant was seen by a medical officer who certified her as fit to take part in the hearing. She did not inform the medical officer either that her disability had prevented her from providing a urine sample, explaining that this was because the medical officer never asked.
19. On 11 January 2000 the applicant appeared again before the Governor. The Government submitted the record of the adjudication hearing which was filled out by the Governor at the hearing. Question 7 on Part 2 of the form enquires: “Do you want any additional help at this hearing? (If yes, explain the possibilities of assistance by a legal friend or legal representative)”. The Governor had ticked the box saying “No”. The applicant claimed that her request for legal representation was refused.
20. The applicant submitted that she was not asked any questions about her disability or whether she had problems urinating. The allegation of a refusal to give a sample was put to her. She claimed that she tried to explain as best she could and that the Governor indicated that most people could provide a sample when asked and he noted that she had refused water. She accepted that she did not inform the Governor during the adjudication hearing that her disability had prevented her from providing a urine sample. The Governor found the charge of disobeying a lawful order to have been proven and sentenced the applicant to 14 additional days’ detention. She was informed that she could appeal.
21. With the assistance of the prison chaplain, she obtained and completed on 12 January 2000 a complaint form. She noted in the form that she had not represented herself as well as she wished and would have benefited from a prepared statement. She indicated that she had bladder problems, exacerbated by the stress of her imprisonment and she disclosed that she had been menstruating. She indicated her willingness to provide a urine sample and requested to be allowed the time for which Rule 46A(7) of the Prison Rules 1964 had provided. In an attached statement, she made it clear that she had not refused to provide the sample but simply could not due to her disability. She indicated that she had recently gone more than 24 hours without urinating. She further requested some assistance in order to comply with the prison rules as they had been drafted with able-bodied persons in mind and did not make allowances for those with disabilities. She expressed extreme distress at having to discuss her bodily functions and requested that the 14 additional days’ be withdrawn.
22. On 14 January 2000 the Governor replied that he had spoken to the prison chaplain, read the applicant’s submissions and discussed the case with the prison service area manager, the latter of whom had read the papers. The area manager agreed that the charge had been proven and that the award of additional days could be reduced to 3 additional days (with no association with other prisoners for 3 nights and 7 days’ stoppages in pay). She was also to provide a urine sample under the MDT arrangements.
23. The applicant sought legal advice. Her legal representatives could not contact her by telephone and were offered a visit after her initial release date. Accordingly, they made written representations by letter dated 19 January 2000 to the Governor and to the prison service area manager outlining the applicant’s condition, how that had prevented her providing the sample and her distress and embarrassment. They sought the withdrawal of the 14 additional days’ award, in default of which proceedings under the Disability Discrimination Act 1995 would be pursued.
24. The applicant was released on 26 January 2000. In his letter of 27 January 2000 to the applicant’s representatives (confirming a telephone conversation of 20 January 2000) the area manager stated that, while information was received by the Governor after the adjudication causing him to vary the sentence, that information did not cause the Governor or the writer to consider that the finding of guilt was flawed or should be quashed. He was further satisfied that the adjudication was conducted in a fair and proper manner. He noted that the applicant had not explained her difficulties to the officers involved in the test process, nor availed herself of the opportunity subsequently to talk through the issues with the Governor. That letter indicated that a medical officer had informed the Governor that she had been fit to appear and had made no comment to the Governor that she was unable to comply with an order to provide a sample.
25. On 11 July 2000 the applicant’s representatives complained to the Home Secretary about the prison adjudication matter. They received an acknowledgement dated 8 August 2000.
26. The Court refers to its outline of the relevant domestic law and practice in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, §§ 31-62).
27. MDT is permitted by section 16A(1) of the Prison Act 1952 (as amended in 1994). Section 16A(2) allows the request for a sample of any other description specified in the authorisation, not being an intimate sample, instead of or in addition to a urine sample.
28. Rule 50 of the Prison Rules 1999 provides as follows:
“(1) This rule applies where an officer, acting under the powers conferred by section 16A of the Prison Act 1952 (power to test prisoners for drugs), requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body.
(2) In this rule “sample” means a sample of urine or any other description of sample specified in the authorisation by the governor for the purposes of section 16A of the Prison Act 1952.
(3) When requiring a prisoner to provide a sample, an officer shall, so far as is reasonably practicable, inform the prisoner:
(a) that he is being required to provide a sample in accordance with section 16A of the Prison Act 1952; and
(b) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him.
(4) An officer shall require a prisoner to provide a fresh sample, free from any adulteration.
(5) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification.
(6) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample.
(7) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample, save that a prisoner may not be kept apart under this paragraph for a period of more than 5 hours.
(8) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing the sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex.”
29. Rule 51(22) of the Prison Rules 1999 provides that it is an offence against prison discipline to disobey a lawful order.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-99216
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHERSTOBITOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1974 and lives in Krasnoyarsk.
6. On 29 January 2002 Ts. and V. were drinking beer at a bus stop, where they saw the applicant and B., a nine-year-old boy. They were under the impression that the applicant was making sexual advances to B. and asked the assistant from a shop nearby to call the police. The shop assistant called the security guards from her company. Two guards, T. and S., arrived and took the applicant and B. to the police station at about 1 a.m. on 30 January 2002.
7. At the police station, the applicant was placed in an “administrative” cell with three other detainees. According to K. and N., police officers on duty at the police station at the time, N. had to remove the applicant from the cell because other detainees verbally and physically attacked him. The applicant did not dispute the account of his placement in the cell provided by K. and N. However, he denied having been beaten by the other detainees. According to him, the police officer removed him from the cell as soon as one of the detainees started making threats to him. The detainee did not have time to hit him.
8. At about 4 a.m. on 30 January 2002 the applicant was taken to a separate room for questioning. According to the applicant, three police officers handcuffed him, verbally insulted him and hit him on the head, legs, back and crotch with rubber truncheons. They kicked and punched him. Then they removed the handcuffs, took off his sweater and a jacket and continued the beatings, questioning him about the boy. At about 6 a.m. they brought a rubber truncheon with a condom put over it. They pulled down the applicant's pants, inserted the truncheon up his anus and put a gas mask over his head. He screamed and they stopped. After that he wrote a confession dictated by the policemen, who held the rubber truncheon in front of him throughout that time. At about 1 p.m. the applicant was taken to the investigator's office. The applicant told the investigator about the beatings. The policemen took him out of the office and punched him again.
9. According to policeman Nik., he took part in the applicant's questioning together with policemen Gr. and P. The applicant had bruises and scratches on his face when they saw him for the first time. It was obvious that he had been beaten up. His clothes were covered with dust and shoe prints were visible on them. Nik. realised that other detainees had beaten the applicant up. The applicant was at first ashamed to tell them what had happened but then confessed. None of the policemen put any psychological or physical pressure on him. Gr. confirmed Nik.'s version of the events. P. later testified that he had no recollection of the applicant's questioning.
10. On the same day at 10 p.m. the applicant was taken to the temporary detention centre, where the officer on duty documented his injuries. Then the applicant was taken to State Hospital no. 7. The doctor examined him and noted numerous bruises, scratches on the face, neck, back and arms, and abrasions on the back and chest. The doctor stated that those injuries were not of a serious nature and had not caused any “health impairment” or “loss of working capacity”.
11. According to the applicant, other persons detained at the temporary detention centre could see bruises and abrasions on his face. He also had scratches on his chin caused by the gas mask. The handcuffs left abrasions on his wrists. There were scratches on the neck and bruises on the chest, buttocks, legs and back. The skin of the anus was damaged and bleeding.
12. According to the materials in the investigation file, none of the persons detained at the temporary detention unit recalled that the applicant had had injuries on his face and body. Nor did they remember that he had told them about the beatings by the policemen.
13. On 1 February 2002 the investigator ordered the applicant's detention pending investigation, noting that he was charged with a serious criminal offence and might abscond.
14. On 8 February 2002 the investigator authorised the applicant's continued detention pending investigation. In particular, she noted as follows:
“Given that [the applicant] might abscond or reoffend, and having regard to the gravity of the charges..., [he] should remain in custody.”
15. On 10 April 2002 the Kirovskiy District Court of Krasnoyarsk dismissed the applicant's request to be released pending investigation and trial. The applicant appealed. He argued, inter alia, that he was not a repeat offender, that he had a permanent place of residence and employment and that he had to provide special care for his elderly parents.
16. On 7 May 2002 the Krasnoyarsk Regional Court upheld the decision of 10 April 2002 on appeal. In particular the court noted:
“[The applicant] is charged with a very serious criminal offence. His remand in custody and indictment have been conducted in accordance with law. The [District] Court's decision to dismiss the [applicant's] application for release was therefore justified.”
17. On 30 April 2002 the prosecutor approved the bill of indictment and on 7 May 2002 the Kirovskiy District Court of Krasnoyarsk received the case file.
18. On 31 May 2002 the court opened the trial. It held four hearings in total. The first two hearings, on 31 July and 8 August 2002, were adjourned following requests submitted by the applicant and his counsel to study the case file and to obtain medical documents and materials concerning the applicant's allegations of ill-treatment from the prosecutor's office.
19. On 26 August 2002 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. On 29 October 2002 the Krasnoyarsk Regional Court quashed the applicant's conviction on appeal, noting that the trial court had failed to establish the exact time of the crime and to consider an application by the applicant for certain evidence to be declared inadmissible. The court further ordered that the applicant should remain in custody.
20. On 25 November 2002 the case file was returned to the District Court. On 17 December 2002 the trial was suspended pending consideration of a request by the prosecutor for supervisory review of the judgment of 29 October 2002.
21. On 31 December 2002 the District Court extended the applicant's detention pending trial until 28 March 2003. In particular, the court noted:
“After having heard [the applicant], his counsel..., who argued that the applicant should be released pending trial given that he was employed, could provide positive references and had two elderly parents who needed his financial support, and the prosecutor, who argued that it was necessary to extend [the applicant's] detention, the court finds that it is necessary to extend [the applicant's] detention until 28 March 2003 since, after [the applicant's] conviction on 26 August 2002 was quashed on appeal, the trial was adjourned pending consideration of the prosecutor's application for supervisory review of the appeal judgment of 29 October 2002. The preventive measure was imposed on the applicant in accordance with the law and was justified.”
22. On 4 January 2003 the Presidium of the Regional Court dismissed the prosecutor's request for supervisory review and returned the case file to the District Court, which opened the trial on 16 January 2003.
23. On 23 January 2003 the Regional Court upheld the decision of 31 December 2002 on appeal. The court noted as follows:
“[The applicant] is charged with a very serious criminal offence. The indictment and the decisions to remand [the applicant] in custody and to subsequently extend his detention were in accordance with the law.”
24. On 26 March 2003 the District Court further extended the applicant's detention until 28 June 2003. In particular, the court noted:
“The preventive measure in the form of detention imposed earlier on the defendant was lawful and justified. At the present time it is still necessary to detain [the applicant] as the circumstances justifying his placement in custody have not ceased to exist.”
25. On 3 April 2003 the Regional Court upheld the decision of 26 March 2003 on appeal.
26. On 23 April 2003, for an unknown reason, the applicant was not transported to the courthouse and his counsel did not appear in court. The District Court adjourned the hearing.
27. On 6 May 2003 the District Court commissioned a new comprehensive forensic medical examination of the victim.
28. On 25 June 2003 the District Court ordered the applicant's release on an undertaking not to leave town. The court noted that the proceedings had been stayed pending two expert examinations, that the investigation had been completed and the victim and all witnesses had been questioned. It further noted that the applicant had a permanent place of residence and employment and could not interfere with the proper administration of justice. On 8 July 2003 the Regional Court upheld the decision of 25 June 2003 on appeal.
29. On 26 August 2003 the District Court granted the prosecutor's request for a forensic psychiatric examination of the victim and stayed the proceedings, which were resumed on 18 December 2003.
30. On 16 June 2004 the District Court found the applicant guilty of sexual assault of a minor and sentenced him to eight years' imprisonment. The applicant was placed in custody on the same day. According to the Government, the trial comprised nineteen hearings. Eight of them were adjourned because of the witnesses' failure to appear in court.
31. On 14 October 2004 the Regional Court upheld the applicant's conviction on appeal.
32. On 21 March 2006 the Presidium of the Regional Court quashed the applicant's conviction by way of supervisory review and remitted the case to the trial court for fresh consideration. The applicant was released on an undertaking not to leave town. In particular, the court indicated as follows:
“The [trial] court failed to comply with the law requiring objective consideration of the case ... [and] found the applicant guilty on the basis of assumptions. The time and place of the crime as established by the court are a supposition (evening of 29 January in a flat at an unidentified address).
The court's findings are not supported by the evidence examined at the trial. It failed to take into account circumstances which could have been decisive for the findings with regard to the applicant's guilt.”
33. Following the receipt of the case file, on 26 April 2006 the District Court scheduled the trial for 10 May 2006. According to the Government, the District Court held at least twenty-seven hearings. Thirteen hearings were adjourned because of the witnesses' failure to appear in court.
34. On 14 June 2007 the District Court adjourned the hearing owing to the illness of the applicant's counsel. On 2 and 23 July 2007 the hearings were adjourned since the prosecutor and the applicant's counsel were on vacation.
35. On 10 December 2007 the District Court acquitted the applicant. As regards the confession written by the applicant on 30 January 2002, the court accepted his explanation that it had been dictated to him by the police officers and dismissed it as inadmissible evidence. The court further noted that the applicant's version of the events in that regard had been corroborated by other evidence examined by the court.
36. According to the Government, on 19 December 2007 the Regional Court upheld the applicant's acquittal on appeal.
37. On 31 January 2002 the applicant was questioned by investigator E. in connection with the criminal case against him. The applicant refused to answer her questions in the absence of a lawyer and informed her that the police officers had beaten and tortured him to make him confess.
38. On 1 February 2002 the applicant met the district prosecutor Ger. The prosecutor allegedly refused to accept the applicant's written statement concerning the ill-treatment and advised him to submit it to the investigator in charge of the criminal case against him. The investigator agreed to take the statement only on 5 February 2002. On 7 February 2002 the applicant reiterated his allegations during questioning in the presence of the lawyer. On 15 February 2002 the investigator registered the applicant's complaint and forwarded it to the prosecutor's office.
39. On 23 April 2002 the Kirovskiy District Prosecutor's Office opened a criminal investigation. On 15 May 2002 the applicant was granted victim status.
40. On an unspecified date the investigator questioned Ts. and V., two women who had facilitated the applicant's arrest. According to them, Ts. had told the applicant that the police would arrest him and he had hit her in the face. She had punched him back and scratched his face. V. could not provide any details with regard to the incident as she had been severely inebriated at the time of the alleged altercation between Ts. and the applicant.
41. On 4 May 2002 the investigator questioned T., a security guard from a private company, who had taken the applicant to the police station. He provided the following account of events:
“I entered the shop and asked the shop assistant why she had called us. [She] said that the women had asked her to do it. I went out of the shop. There were two women and a man in camouflage clothing. He was holding [the applicant]. A nine-year-old boy was standing next to them. The women told us that [the applicant] was selling the boy to the passing-by drivers. We took [the applicant] and the boy into [our] car. We did not use truncheons or physical force against the applicant since [he] was calm. We took [the applicant] and the boy to [the police station]. The applicant was seated on a bench. He was not put in a cell while I was at the police station, where I spent 20-30 minutes...
I don't think that [the applicant] had any abrasions or injuries. [He] was decently dressed and clean.”
42. On 17 May 2002 the investigator questioned N., an officer on duty at the police station on 30 January 2002. N. submitted as follows:
“Then I brought [the applicant] to an administrative cell where there were three men being held. While I was booking another person, the detainees started a fight with [the applicant]. I immediately opened the cell to take [the applicant] out, but [the others] had already hit him several times. I took [the applicant] out of the cell. He had blood over his face. I think his lip was cut. I took him to [the bathroom] where [he] washed his face. After that I did not place him in the cell as the other detainees kept shouting obscenities about him.”
43. On 18 May 2002 the investigator questioned Ya., one of the persons detained with the applicant, who provided the following account of the events:
“In the night of 29 January 2002 I was taken to [the police station]. I was placed in an administrative cell... There were two other men held there. They were in their thirties. Later another man, who was arrested for the sexual assault of a boy, was brought to [the police station]. I heard the policemen talk about it. That man was not placed in the cell. He remained seated on a bench. I remember that the other detainees and myself asked him for a cigarette. He did not give us any although he was smoking. I was let go at about 3 a.m. ... While I was at the police station, that man was not placed in the cell with other detainees. There were no conflicts or altercations between him and others...
I did not see any injuries on his face.”
44. On 20 May 2002 the investigator questioned K., another person held at the police station on 30 January 2002. She submitted as follows:
“When my brother and myself were brought to [the police station], [the applicant] was already there. When other men heard why he had been arrested, they started swearing, but I would not say that they were aggressive. In my presence [the applicant] was not placed in the cell. He either walked around or sat on one of the chairs. Then the policemen took him away. At that time he was wearing clean clothes. He had no injuries on his face.”
45. On 27 November 2002 a forensic expert examined the relevant medical documents concerning the applicant and concluded as follows:
“According to the medical documents concerning the medical aid provided to [the applicant] on 30 January 2002, [he] had numerous bruises of the soft tissue, scratches on the face, neck, back and hands, and abrasions on the back and chest. None of them caused any health impairment or loss of working capacity. It is impossible to determine the origin and the time of the said injuries since the medical documents do not contain any specific details (of their size, shape, colour and nature).”
46. K.'s brother submitted that he had very poor eyesight and had slept all the time after he had been placed in a cell with another man.
47. On an unspecified date the investigator questioned other persons who had been detained at the police station on 30 January 2002. B. confirmed that the applicant had been placed in the cell with other men who had beaten him. She further submitted that, after the applicant's placement in the cell, she had heard loud voices and sounds of a fight. Ro. and Ru. told the investigator that they had been brought to the police station from a sobering-up centre and that they had not been put in a cell. According to the documents submitted by the Government, no attempt was made to question Z., Kov., Dzh., Kon. and Kh., who had also been detained at the police station on 30 January 2002.
48. On an unspecified date the investigator commissioned a graphological forensic examination of the applicant's handwritten confession. The expert report stated as follows:
“[The applicant] wrote the confession on 30 January 2002 under the influence of a temporary natural distraction which could have been external (uncomfortable position) or internal (unusual state caused by extreme emotional disturbance, restraint, irritation, etc.) or both. It is impossible to determine the type of distraction (external or internal) or its source.”
49. In 2002 and 2003 the proceedings were discontinued on seven occasions. Each time the investigator closed the file for lack of corpus delicti and the supervising prosecutor quashed the relevant decision, noting that the investigation had been incomplete and based on insufficient and inconclusive evidence.
On 12 April 2003 the investigator closed the case once more. Her decision was upheld by the District Court on 5 January 2004. On 17 February 2004 the Regional Court quashed the decision of 5 January 2004 and discontinued the proceedings, noting that the thrust of the applicant's complaint was to challenge the validity of the confession he had made on 30 January 2002 and that the lower court had not been in a position to consider it.
50. On 13 January 2006 the Krasnoyarsk Region First Deputy Prosecutor quashed the decision of 12 April 2003 and reopened the case.
51. On an unspecified date the investigator commissioned a forensic examination of the applicant's clothing, which did not reveal any traces of blood on the clothes, including the underwear. As regards the applicant's damaged jacket, the expert submitted as follows:
“The damage to the back of the applicant's jacket is a tear which resulted from overstretching of the loosest part of the fabric, probably when some part of the jacket (the sleeve or the front) was yanked in the course of a fight. It is impossible to determine the source of the damage (whether it could have been a rubber truncheon).”
52. The case was closed again on 17 February 2006. Relying on the medical documents, including the forensic report of 27 November 2002, the medical forensic report that showed that there had been no blood on the applicant's clothes, the statements made by Ts., V., the police officers on duty on the day of the applicant's arrest, the persons detained with the applicant at the police station and the alleged perpetrators, the investigator noted, in particular, as follows:
“The preliminary investigation has demonstrated that all the bodily injuries incurred by [the applicant] were caused by Ts. and V. and subsequently [the detainees] in the administrative cell. However, in an attempt to render inadmissible the evidence obtained against [the applicant], he denies those facts, alleging that the injuries were inflicted by the police officers...”
53. On 15 August 2007 the Deputy Regional Prosecutor quashed the decision of 17 February 2006 and reopened the case owing to the incompleteness of the investigation.
54. On 17 September, 14 December 2007 and 21 January 2008 the investigation was stayed pending various forensic expert examinations. It appears that the investigator commissioned an additional forensic medical examination of the applicant's injuries and an examination of the applicant's handwritten confession.
55. According to the medical forensic examination of 18 September 2007, the applicant had spots on the left part of his body which could have been caused by the impact of a blunt object or objects under any circumstances from at least three to six months before the examination. The expert could not determine the cause and exact time of the injuries owing to the scarcity of information in the relevant medical documentation.
56. According to the expert report concerning the applicant's handwritten confession, the expert was unable to conclude whether the applicant had been in a state of fear or under psychological or physical pressure owing to the insignificant volume of the text submitted for examination.
57. On 26 March 2008 the investigation was resumed and a month later it was closed again. The investigator noted that the applicant's allegations had not been supported by any other evidence gathered. He relied, inter alia, on the testimonies provided by Ts. and V., the police officers on duty at the police station on the day of the applicant's arrest, the alleged perpetrators, including Nik., who claimed that the applicant had confessed voluntarily to the crime, and the persons detained at the police station, and forensic reports. The investigator summed up his conclusion as follows:
“The evidence gathered in the course of the investigation is not sufficiently reliable to show that the applicant was subjected to psychological and physical pressure, including ill-treatment, by the policemen.
It has been established in the course of the investigation that the bodily injuries incurred by [the applicant] resulted from an altercation with Ts. and V. and subsequently from his placement in the administrative cell.
... No proof has been established in the course of the investigation to support [the applicant's] allegations. Accordingly, there are grounds to believe that [the applicant] has intentionally concealed the circumstances in which he was beaten in order to mislead the investigation.”
58. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
59. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a decision by a court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1 and 36).
60. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Article 97 § 1 and Article 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
61. Under the new CCrP, “preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
62. Before 15 June 2001 the old CCrP set no time-limit for detention pending trial. On 15 June 2001 a new Article 239-1 entered into force which established that the period of detention during the trial could not generally exceed six months from the date on which the court received the file. However, if there was evidence to show that the defendant's release might impede the thorough, complete and objective examination of the case, a court could – of its own motion or following a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences. The new CCrP provides that the term of detention during the trial is calculated from the date on which the court received the file up to the date on which the judgment is given. The period of detention during the trial may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
63. In response to a complaint alleging a criminal offence, the investigator is under an obligation to verify the complainant's allegations (Article 144 of the new CCrP).
64. Should there be sufficient grounds to believe that a crime has been committed, the investigator initiates a criminal investigation (Article 145 of the new CCrP).
65. Every person who has been acquitted has a right to rehabilitation, which includes compensation for pecuniary and non-pecuniary damage and reinstatement of his or her employment, pension, housing and other rights (Article 133 of the new CCrP).
66. A person who is acquitted after a criminal prosecution may recover, inter alia, lost earnings, pension and other benefits as well as legal fees and other litigation expenses he or she incurred (Article 135 of the new CCrP).
67. The following provisions of the Russian Civil Code are relevant to the present case:
Article 1070: Responsibility for damage caused by unlawful acts of investigative authorities, prosecuting authorities and courts
“1. Damage caused to a person as a result of unlawful conviction, unlawful criminal prosecution, ... unlawful pre-trial detention ... shall be compensated [by the State] ... in full, irrespective of the fault of the [police], prosecutor's office or the court.”
Article 1100: Grounds for compensation for non-pecuniary damage
“Compensation for non-pecuniary damage shall be afforded irrespective of the fault of the tortfeasor if:
... the damage is caused to a person as a result of his unlawful conviction, unlawful criminal prosecution, [or] unlawful pre-trial detention...”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
6-1