ITEMID: 001-57645
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF MOREIRA DE AZEVEDO v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Just satisfaction reserved
TEXT: 11. Mr Manuel Moreira de Azevedo, who is a Portuguese national and resides at Vila Nova de Famalicão, is a bus driver.
12. On 23 January 1977 one of his brothers-in-law, Mr Bernardo Gonçalves de Sousa, shot him in the head following a family quarrel. The applicant was rushed to the São João de Porto hospital where he remained until 2 February 1977.
13. On the same day the police arrested the suspect and communicated the facts to the Public Prosecutor, who requested the investigating judge of the First-Instance Court of Vila Nova de Famalicão to question him.
14. Since there was insufficient evidence to establish the offence of attempted murder, the investigating judge ordered, on 24 January 1977, the provisional release of Mr Gonçalves de Sousa, subject to the lodging of a security of 10,000 escudos. He also decided to transmit the file to the Public Prosecutor for the inquiry to be continued.
15. On 17 February a court medical officer examined the applicant and asked that the medical report drawn up by the São João de Porto hospital be communicated to him.
16. This report was supplied to him on 21 March and the Public Prosecutor fixed the date of the medical examination for the 28th. On that occasion the court medical officer noted that the injuries resulting from the attack had led to Mr Moreira de Azevedo’s being unfit for work for a period of 90 days. On 28 April he expressed the opinion that the applicant required another 30 days’ sick leave. On 26 May he pronounced the applicant to be recovered, but prescribed other specialist examinations.
17. On 2 June 1977 the applicant stated that he wished to intervene as an assistant (assistente) of the prosecuting authority in the preliminary investigation. The investigating judge allowed his application on 18 June 1977.
18. On 18 October and 7 November the applicant was examined by an ear, nose and throat specialist and an opthalmologist.
19. On the recommendation of the opthalmologist he underwent a neurological examination on 24 October 1978. This was followed on 11 June 1979 by an electroencephalogram and on 23 August by a further medical examination ordered by the Public Prosecutor.
20. On 3 October 1979 the Public Prosecutor decided, at the request of the court medical officer, to arrange for a further neurological examination.
21. As the Oporto Medical Faculty informed him that the applicant could not be examined until 1981, the Public Prosecutor entrusted this task to the court medical officer, who was invited to express an opinion in particular as to whether the assailant had acted with "the intention of causing death".
22. In a report dated 8 May 1980, the medical officer concluded that the applicant had recovered and that the period during which he had been unfit for work was the period already established. He also expressed the opinion that the assailant had indeed intended to kill.
23. In the light of this report, the Public Prosecutor communicated the file to the investigating judge on 21 May 1980, requesting him to open the preliminary investigation.
24. On 26 May 1980 the investigating judge asked the Council of Forensic Medicine (Conselho médico-legal) to examine the various medical reports (Article 200 of the Code of Criminal Procedure), but to no avail.
The file was transferred to the Criminal Investigation Court (tribunal de instrução criminal) of Santo Tirso where it was registered on 1 July 1982.
25. On 8 March 1982 the applicant wrote to the investigating judge of Vila Nova de Famalicão seeking a further examination by the court medical officer and criticising the length of the proceedings.
26. On 6 July 1982 the judge of the Criminal Investigation Court of Santo Tirso sought the opinion of the Public Prosecutor as to whether an amnesty law was applicable.
27. In a letter of 13 October 1982, the applicant complained that his letter of 8 March 1982 (see paragraph 25 above) had not been added to the file; he repeated his request.
28. On 19 October 1982 the judge of the Criminal Investigation Court of Santo Tirso, in his turn, instructed the Council of Forensic Medicine to examine the medical reports and, on 4 November, asked the court medical officer to clarify some points in his report of 8 May 1980.
29. On 19 November 1982 the court medical officer recommended a further neurological examination, which the judge ordered on 23 November.
30. In the meantime, by a letter of 13 November 1982 received at the Criminal Investigation Court on 2 February 1983, the Council of Forensic Medicine had asked the court medical officer to specify the number of days during which the applicant had been unfit for work and also to indicate the after-effects of the attack. On 23 February 1983 the medical officer described the injuries and stated that the applicant had been unfit for work for 120 days and still suffered from disability. He had lost a part of his skull and was deaf in the left ear.
31. On 8 March 1983 Mr Moreira de Azevedo was examined by a neurologist who sent his report to the judge on 5 July.
32. On 21 March 1984 the judge requested the court medical officer to submit his report. He did so on 5 April 1984 and on the same day the document was sent to the Council of Forensic Medicine.
33. On 26 April 1984 that body approved the findings of the court medical officer’s report, adding that the attack had resulted in a disability and a total incapacity.
34. On 14 May 1984 the judge ordered that the applicant and the accused be questioned on 24 May 1984. The applicant was questioned on that date but the accused was unwell and did not appear.
35. On 25 May 1984 the applicant asked for five witnesses to be heard.
36. On 28 May the judge decided that the accused should be questioned on 7 June 1984. However, as the latter had absented himself for an indefinite period, the bailiff was unable to serve this order on him.
37. On 5 June 1984 Mr Moreira de Azevedo submitted a report by the Public Health Department dated 15 April 1981 and drawn up following a medical examination. According to this document he suffered from a 64% incapacity.
38. On 6 June 1984 the judge issued a warrant for the accused’s arrest and, on 14 June, questioned the witnesses named by the applicant.
39. On 1 July 1984 the police officer assigned to the case informed the judge that Mr Gonçalves de Sousa had disappeared.
40. On 5 July 1984 the judge closed the preliminary investigation and forwarded the file to the Public Prosecutor. On 10 July the latter requested the opening of adversarial investigation proceedings and drew up the prosecution submissions (acusação). He sought the accused’s arrest, contending that provisional release was not available to persons charged with attempted murder.
41. On 16 July 1984 the judge declared the adversarial investigation proceedings open and ordered the accused’s arrest, but the latter could still not be traced.
42. On 27 July the judge closed the investigation and forwarded the file to the Public Prosecutor, who drew up the prosecution submissions on 8 October 1984.
43. The accused was committed for trial on 16 November 1984 and on 26 November 1984 was arrested and remanded in custody.
44. On 12 December 1984 the court scheduled the hearing for 5 February 1985.
45. On 21 December the applicant asked for evidence to be taken from two witnesses.
46. On 5 February 1985, at the beginning of the hearing, the applicant’s lawyer submitted an oral request to the First-Instance Court of Vila Nova de Famalicão that the fixing of the amount of any compensation be deferred until the subsequent enforcement proceedings ("liquidação em execução de sentença"), in accordance with Article 34 para. 3 of the Code of Criminal Procedure.
47. On 18 February 1985 the court acquitted the accused on the charge of attempted murder. However, it sentenced him to 14 months’ imprisonment for causing grievous bodily harm and ordered him to pay damages to the applicant in an amount to be fixed in the enforcement proceedings.
48. The applicant and the accused filed appeals.
49. On 30 October 1985 the Oporto Court of Appeal (tribunal de relação) allowed Mr Gonçalves de Sousa’s appeal. At the same time it declared the criminal prosecution out of time (five-year limitation period).
50. Mr Moreira de Azevedo then appealed to the Supreme Court (Supremo Tribunal de Justiça) which, on 7 May 1986, upheld the appeal court’s judgment. The letter of notification was sent to the applicant on the following day. He was deemed to have received it on the third day after its despatch (Article 1 para. 3 of Legislative Decree No. 121/76).
51. In Portugal criminal proceedings are in principle brought by the Public Prosecutor. According to Article 1 of Legislative Decree No. 35007 of 13 October 1945 "criminal proceedings are the responsibility of the authorities; they shall be brought by the Public Prosecutor subject to the restrictions provided for in the following Articles". These restrictions relate to the cases in which the police or administrative authorities or other State organs may bring criminal proceedings, but they apply in general only for petty offences. Legislative Decree No. 605/75 of 3 November 1975 also states, in Article 1 thereof, that "except as provided for by law, criminal proceedings shall be conducted by the Public Prosecutor who shall open the preliminary inquiry or communicate the file to the investigating judge, as the case may be".
52. In certain cases, private persons may participate in the criminal proceedings as assistentes. Article 4 of Legislative Decree No. 35007 provides as follows:
"The following may participate in proceedings as assistentes:
1o Those persons without whose accusation or complaint the Public Prosecutor cannot bring a prosecution;
2o The victims, namely those whose interests the criminal law sought especially to protect by prohibiting the offence;
3o The husband in trials concerning offences of which his wife has been the victim, unless she objects thereto;
4o The spouse, where there is no judicial separation or separation of property, or the surviving spouse or any ascendant, descendant, brother or sister, in cases where the victim is deceased or incapable of managing his or her own affairs;
5o Any person in trials concerning embezzlement, bribery, misappropriation of public funds or corruption.
Para. 1o - The assistentes perform the function of assistants to the Public Prosecutor; their role in the proceedings is subordinate to that of the Public Prosecutor, except in cases provided for by the law.
Para. 2o - However, the assistentes are entitled in particular:
1o to make prosecution submissions independently of those filed by the Public Prosecutor;
2o to intervene directly in the adversarial investigation proceedings by adducing evidence and requesting the judge to take the appropriate measures;
3o to appeal against the order committing the accused for trial, the judgment or the order terminating the proceedings, even if the Public Prosecutor has not done so.
Para. 3o - ... (repealed)
Para. 4o - In cases where the assistentes make prosecution submissions relating to facts different from those which are the subject of the prosecution submissions filed by the Public Prosecutor, they may not appeal against the decision of the court if it accepts the Public Prosecutor’s submissions.
Para. 5o - The assistentes may intervene at any moment in the proceedings up to five days before the trial hearing and shall accept the state of the proceedings as they stand at that stage."
The preamble to the Decree states as follows:
"3. Criminal proceedings shall be brought by the Public Prosecutor in his capacity as a State authority. The right to punish an offender is a right that belongs exclusively to the State and consequently private individuals may, in accordance with the law, assist in bringing a prosecution, but have no personal right to bring one ... ."
Article 70 of the Code of Criminal Procedure provides that the preliminary investigation is to be secret. However, according to paragraph 1 thereof the accused and the assistente may have access to certain documents in the file provided that this does not impede the discovery of the truth.
53. The Code of Criminal Procedure applicable at the material time - new provisions came into force with effect from 1 January 1988 - contained several provisions on the victim’s right to compensation:
"A claim for damages resulting from a punishable offence for which the perpetrators are liable must be brought in the criminal proceedings in process and may be brought in separate proceedings in the civil courts only in the cases provided for by this Code".
"Except in the cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, civil proceedings may be instituted separately in the civil courts where the prosecution has not been brought by the Public Prosecutor within six months of the complaint being laid or where no action has been taken on the complaint for the same period, where the proceedings have been discontinued or where the accused has been acquitted.
Para. 1o In cases in which criminal proceedings may be brought only on the basis of a complaint or an accusation by a private party, the victim may bring civil proceedings, but if he does so, the criminal proceedings shall lapse.
Para. 2o Where criminal proceedings have been instituted, civil proceedings may be brought separately only where no action has been taken in the criminal proceedings for six months or more through no fault of the assistente where the proceedings have been discontinued or where the accused has been acquitted."
"The claim for damages may be lodged in criminal proceedings even by a person who has not intervened as an assistente.
Para. 1o The Public Prosecutor shall seek damages on behalf of the State, where appropriate, and on behalf of bodies serving public interests or the legally incapacitated to whom compensation is payable, if they are not represented by a lawyer in the proceedings.
Para. 2o The statement of claim for damages shall be set out in articles.
Para. 3o The evidence relating to the award of damages shall be adduced within the time-limits applying for the criminal proceedings ..."
"If the accused is convicted, the court shall decide the amount to be paid to the victims in respect of damages, even where no claim has been lodged.
Para. 1o In cases where the law accords civil compensation to other persons the amount shall be determined for each party.
Para. 2o The amount of compensation shall be determined at the discretion of the court which shall take into account the seriousness of the offence, the pecuniary and non-pecuniary damage and the financial and social position of the injured party and of the offender.
Para. 3o The persons entitled to compensation may request, before judgment is pronounced at first instance, that the amounts of compensation be decided in enforcement proceedings. In such circumstances assessment and enforcement shall take place in the civil courts, the criminal judgment serving as the basis for enforcement.
Para. 4o If, in the cases provided for by law, the civil action for damages is pending or has been judged in the civil courts, compensation shall not be determined in the criminal proceedings."
Article 12 of Legislative Decree No. 605/75, cited above, states moreover as follows:
"In cases where the accused is acquitted, the court shall order the accused to pay damages in respect of proven unlawful acts or liability based on risk, if established.
In such cases Article 34 of the Code of Criminal Procedure shall apply, adapted as necessary."
54. In a "ruling" judgment (assento) of 28 January 1976 the Supreme Court held that the civil courts had no competence to award compensation if compensation had already been awarded in the criminal proceedings (Diário da República, Series 1, 11 March 1976).
Although this decision concerned civil and criminal damages for road traffic infringements, it set out the following general considerations:
"Article 29 [of the Code of Criminal Procedure] establishes the principle of the interrelation ... between the criminal and the civil proceedings but with greater emphasis on the priority of the criminal proceedings over the civil proceedings ...
...
... The formulation of prosecution submissions in the criminal proceedings, which are intended to secure the conviction of the accused, can therefore be seen as implying a request for compensation to be awarded to the victim, because according to the law such compensation is a consequence of a conviction.
...
... the amount of compensation is determined by the criminal judgment regardless of whether the victim has filed a civil claim ... ."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112383
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LOLAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Kazbek Mairbekovich Lolayev, is a Russian national, who was born in 1967 and lives in Ivanteyevka, Republic of North Ossetia-Alania. He is represented before the Court by Ms T.I. Baskayeva, a lawyer practising in Vladikavkaz.
2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant and other claimants served in the law-enforcement agencies of the Ministry of the Interior of the Republic of North OssetiaAlania and were entitled to additional remuneration for service in the conditions of emergency and armed conflict. They brought proceedings against the regional office of the Ministry of the Interior seeking recovery of the additional remuneration which included double salary, special rank salary, non-recurrent monetary allowance, and allowances for length of service, food and sanatorium treatment.
5. By a judgment of 11 June 2002 the Leninskiy District Court of Vladikavkaz (“the Leninskiy District Court”) granted the applicant’s claim and awarded him 553,598 Russian roubles (RUB) against the Ministry of the Interior of the Republic of North Ossetia-Alania.
6. That judgment became final on 21 June 2002.
7. On 23 July 2003 by the Pravoberezhniy District Court of the Republic of North Ossetia-Alania (“the Pravoberezhniy District Court”) delivered a judgment on seemingly identical claims for additional remuneration for service in the conditions of emergency and armed conflict and including a non-recurrent monetary allowance, an allowance for sanatorium treatment, double salary, special rank salary, an allowance for length of service and an allowance for hardship of service. As transpires from the text of the judgment, the applicant and approximately two hundred other claimants were represented by a certain Mr V.A. Em who attended the hearing. Mr Em requested the court to order that the debts be paid from the federal funds specifically allocated for compensation of damage inflicted by unlawful acts or omissions of the executive bodies and their officials, instead of the funds allocated to the Ministry of the Interior.
8. Having taken into account the inflation losses, the court allowed the claims. In particular, it awarded the applicant RUB 721,841 payable by the State Treasury.
9. On 2 December 2005 the Pravoberezhniy District Court examined the application of the claimants in the above proceedings for adjustment of the awards due to inflation losses and recovery of those amounts from the regional Ministry of the Interior. In those proceedings the applicant was represented by a certain Mr A.A. Begletsov. The materials of the case contain a power of attorney signed by the applicant on 26 April 2005 in the name of Mr Begletsov entitling him, inter alia, to bring claims and to receive money on his behalf.
10. The court stated, in particular, the following:
“By a judgment of 23 July 2003 in the case no. 3-173 the Pravoberezhniy District court granted the claims of the servicemen of the Ministry of the Interior of the Republic of North Ossetia-Alania and the State Treasury represented by the Ministry of the Interior concerning compensation of damages caused by the failure to pay them allowance for service in the conditions of emergency and armed conflict.
That judgment has been enforced.
...
As evidence of the time (day) of the transfer of the amounts due in accordance with the writs of enforcement, the applicants submitted certified excerpts from their bank accounts which demonstrate the following:
...
The bank account of A.A. Begletsov...was credited by way of bank orders dated 10 and 11 February 2004 with the amounts due to...[the applicant].”
11. The court granted the application for adjustment of the original amount and awarded the applicant RUB 137,149 which on 2 March 2006 was credited to the account of Mr Begletsov per procurationem.
12. By letter of 17 April 2006 the president of the Leninskiy District Court addressed the head of the regional office of the Federal Treasury with the following request:
“[Your department] is in possession of the enforcement documents of the employees of the regional law-enforcement agencies issued pursuant to the judgments of the Leninskiy District Court of Vladikavkaz, concerning payment of compensation for participation in the clearing-up of the aftermath of the Ossetian-Ingush conflict, which were subsequently quashed on account of newly discovered circumstances.
New court judgments have been delivered and enforced in respect of the above individuals. Therefore, you are requested to return to us the enforcement documents according to the enclosed list, without enforcement.”
13. On 15 May 2006 the enforcement documents, including those concerning the applicant, were returned to the Leninskiy District Court.
A letter of 27 October 2010 addressed by the president of the Supreme Court of the Republic of North Ossetia-Alania to the Representative of the Russian Federation at the European Court of Human Rights stated the following:
“...The documents concerning enforcement (non-enforcement) of [the judgment of 11 June 2002] were destroyed together with the relevant case-file following expiration of the time-limit for their preservation...
As the operative part of the judgment of 11 June 2002 did not authorise recovery of the award from the Ministry of the Interior of the Republic of North Ossetia-Alania at the expense of the State Treasury and following impossibility of enforcement of the judgment concerned, K.M. Lolayev and others sued the State Treasury represented by the Ministry of the Interior and [its regional department], seeking recovery of the same payments...
...[B]y a judgment of the Pravoberezhniy District Court of the Republic of North Ossetia-Alania of 23 July 2003 [the above claims] were granted. Having taken into account the amended claims and inflation losses, that judgment recovered in favour of K.M. Lolayev 721,841 roubles.
That judgment was enforced. The documents proving the enforcement were destroyed together with the case-file following expiration of the time-limit for their preservation...
It transpires from the correspondence of the president of the Leninskiy District Court of Vladikavkaz of the Republic of North Ossetia-Alania with the head of the [regional office of the Federal Treasury] that the judgment of 11 June 2002 was quashed on account of newly discovered circumstances following adoption of the judgment of 23 July 2003 by the Pravoberezhniy District Court of the Republic of North Ossetia-Alania...”
14. The Government has not been able to provide any direct evidence or a date of the quashing of the judgment of 11 June 2002.


ITEMID: 001-70865
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KHUDOYOROV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violations of Art. 3;No violation of Art. 5-1 (two periods of detention);Violation of Art. 5-1 (two periods of detention);Violation of Art. 5-3;Violations of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 10. The applicant was born in 1965. On 17 August 1998 he arrived in Russia from Tajikistan. He stayed in Vladimir at his cousin's flat.
11. On 22 January 1999 the applicant was arrested on suspicion of the unlawful purchase and possession of drugs. A search was carried out in the flat where he was staying.
12. On 30 January 1999 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 3 grams of hashish. He pleaded not guilty and indicated that he did not need an interpreter because he had studied in Leningrad.
13. On 12 March and 5 April 1999 the applicant's detention was extended until 11 July 1999.
14. On 4 June 1999 the Leninskiy District Court of Vladimir refused the applicant's request for release on bail. It found that the applicant's detention had been extended in accordance with the law and that no grounds for releasing him could be established. The applicant did not appeal to the Regional Court.
15. On 30 June and 2 September 1999 the applicant's detention was extended until 21 December 1999.
16. On 2 December 1999 the acting Prosecutor General approved the extension of the applicant's detention until 21 June 2000. The applicant appealed to the Leninskiy District Court, which on 28 December 1999 dismissed the appeal, finding that the applicant had been charged with an particularly serious criminal offence and had resided in Vladimir only temporarily, his permanent residence being in Dushanbe, Tajikistan, so that there was good reason to suspect that he would abscond if released. The applicant did not appeal against that decision to the Regional Court.
17. On 21 June 2000 the supervising prosecutor approved the bill of indictment and the case against the applicant and twenty co-defendants was sent to the Vladimir Regional Court for trial.
18. On 23 June and 17 July 2000 the applicant requested the Vladimir Regional Court to review the lawfulness of his detention on remand.
19. On 18 July 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the bill of indictment had not been translated into the Tajik language, even though seven of the defendants were Tajik. The court held that the applicant and his co-defendants should remain in custody.
20. On 24 July 2000 the prosecution appealed against the decision but subsequently withdrew their appeal. On 30 August 2000 the case was returned to the Vladimir Regional Court for examination on the merits.
21. On 23 November 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the rights of some of the defendants had been unlawfully restricted. The prosecution appealed.
22. On 28 February 2001 the Supreme Court of the Russian Federation quashed the decision of 23 November 2000. It found that, after the case had been remitted for an additional investigation on 18 July 2000, the prosecution had not remedied the defects identified by the Regional Court. In particular, the prosecution had not arranged for translation of the bill of indictment or checked that the interpreter had the requisite skills. In view of these procedural defects, the Supreme Court held that all the subsequent judicial decisions had been unlawful and remitted the case to the Regional Court for implementation of the decision of 18 July 2000.
23. On 4 April 2001 the case was remitted to the prosecutor of the Vladimir Region for an additional investigation. On the same day a deputy prosecutor of the Vladimir Region extended the applicant's detention on remand by one month, until 4 May 2001.
24. On 19 April 2001 the prosecutor of the Vladimir Region applied to the Vladimir Regional Court for an order extending the applicant's detention. The applicant lodged objections in which he alleged, inter alia, that the prosecution had thus far failed to perform any additional investigation.
25. On 28 April 2001 the Vladimir Regional Court established that the bill of indictment had been translated into Tajik and that on 18 April 2001 the defendants and their lawyers had begun their examination of the case file. Noting the gravity of the charges against the applicant, his Tajik nationality and absence of a permanent residence in Vladimir, the Regional Court further remanded him in custody until 4 September 2001.
26. On 4 and 17 May 2001 the applicant appealed against the decision of the Vladimir Regional Court.
27. On 8 August 2001 the Supreme Court established that one of the applicant's co-defendants had not been provided with an interpreter into Uzbek and that the applicant and other co-defendants had had no access to the materials examined by the Regional Court. It held as follows:
“The defects of the court hearing described above and the curtailing of the defendants' statutory rights... are substantial violations of the rules of criminal procedure, which could have affected the judge's conclusions; the decision [of 28 April 2001] must therefore be quashed and the materials of the case relating to the extension of the defendants' pre-trial detention must be referred for a new judicial examination. During the new examination of the prosecutor's request, the above defects shall be remedied... and the arguments by the defendants and their counsel, including those concerning the lawfulness of their detention, shall be reviewed... The preventive measure [imposed on, in particular, the applicant] shall remain unchanged”.
By an interim decision of the same date, the Supreme Court refused the applicant leave to appear at the appeal hearing.
28. On 11 September and 30 November 2001 the Vladimir Regional Court adjourned hearings in order to afford the defendants additional time in which to read the case-file.
29. On 27 February 2002 the Vladimir Regional Court upheld a challenge by the applicant against the presiding judge.
30. On 11 and 13 March, 12 April, 17 and 18 June 2002 hearings were adjourned because of the absence of several lawyers, including the applicant's counsel.
31. On 15 August 2002 the Vladimir Regional Court again granted the prosecutor's request (of 19 April 2001) for an extension of the defendants' detention on remand until 4 September 2001. It found that it was necessary for the applicant to remain in custody because he was a national of Tajikistan, was not registered as resident in Vladimir, and had been charged with a serious criminal offence. The court also referred to certain “conclusions” contained in the prosecutor's application to the effect that the applicant might abscond or obstruct justice. The content of these “conclusions” was not disclosed.
32. On 23 September 2002 the applicant lodged an appeal against the decision of the Vladimir Regional Court. He claimed that the contested decision was “unlawful and unconstitutional” and requested leave to appear in person at the appeal hearing.
33. On 23 January 2003 the Supreme Court upheld the decision of 15 August 2002, finding as follows:
“The judge came to a well-justified conclusion that the defendants... could not be [released pending trial]. The judge had regard to the fact that these persons were charged with serious and particularly serious criminal offences, he considered the information on their character and all the circumstances to which the prosecutor had referred in support of his application...
The fact that the above-mentioned decision on the prosecutor's application was [only] made after the defendants had spent that length of time in custody... is not a ground for quashing the decision of 15 August 2002 because the first judicial decision on this matter was quashed in accordance with the law and the prosecutor's application of 19 April 2001 was remitted for a new examination. The subsequent progress of the criminal case is, under these circumstances, of no relevance to a decision on the prosecutor's application.”
By an interim decision of the same date, the Supreme Court refused the applicant's request for leave to appear because the defendants' arguments were clearly set out in their grounds of appeal and their lawyers were present at the hearing while the prosecutor was not.
34. Meanwhile, on 4 September 2001 the additional investigation was completed and the case sent to the Vladimir Regional Court. On or about that date the applicant asked the court to order his release pending the trial.
35. On 9 January 2002 the Vladimir Regional Court fixed the first hearing for 5 February 2002 and held that the applicant should remain in custody pending trial:
“[The court] did not establish any grounds... to amend or revoke the preventive measure imposed on the accused given the gravity of the offence with which the defendants are charged. Furthermore, the fact that the court decision extending the detention on remand of several defendants in order to afford them [time] to examine the case materials was quashed on appeal is of no legal significance. [In its decision of 8 August 2001] the Supreme Court did not revoke the preventive measure, the case was referred to the [trial] court without delay and no other grounds for amending the preventive measure were established.”
36. On 11 February 2002 the applicant lodged an appeal against the decision. He complained, in particular, that his detention was unlawful because it had significantly exceeded the maximum eighteen-month period permitted by law, that the conditions in which he was detained were poor and that he had been ill-treated by police officers, both at the time of his arrest and subsequently. He alleged that his notice of appeal had never been dispatched to the Supreme Court.
37. On 5 February 2002 the hearing was adjourned until 26 February because three defendants had failed to appear. On 15 February 2002 the applicant prepared an appeal against the decision to adjourn the hearing; in the notice of appeal, he also repeated the points he had raised in his appeal of 11 February. He again stated that his notice of appeal had not been sent to the Supreme Court.
38. On 13 March 2002 the Vladimir Regional Court established that the case was not ready for consideration on the merits because of a series of procedural defects: in particular, several defendants had not had sufficient time to study the case file, one defendant had not been provided with interpretation facilities into Uzbek, and the applicant had not been informed in good time of the expert examinations. The court remitted the case for an additional investigation and remanded the defendants in custody “in the light of the gravity and dangerous nature of the offences”.
39. On 11 April 2002 the prosecution appealed against the decision of 13 March and the applicant did likewise on 29 April. The applicant submitted, in particular, that the domestic law did not permit extensions of detention “during the investigation” beyond the maximum period of eighteen months which had expired, in his case, on 4 April 2001.
40. On 28 May 2002 the case-file was forwarded to the Supreme Court for examination of the issue of detention on remand.
41. On 8 August 2002 the Supreme Court refused, in an interim decision, the applicant's request for leave to appear, holding that his position had been clearly and exhaustively stated in the grounds of appeal.
42. On 12 September 2002 it examined the appeals lodged by the prosecutor, the applicant and his co-defendants and found that the defence rights had not been impaired. On this ground it quashed the decision of 13 March 2002 and instructed the Vladimir Regional Court to proceed with the trial. It held that the applicant and his co-defendants should remain in custody because “there were no legal grounds to amend the preventive measure given the gravity and dangerous nature of the offences”.
43. On 7 October 2002 the case-file was returned to the Vladimir Regional Court.
44. On 18 November 2002 the Vladimir Regional Court extended the applicant's detention on remand until 3 December 2002. It found as follows:
“The case was referred to the Vladimir Regional Court on 2 September 2001; on 13 March 2002 it was decided to remit the case for additional investigation. On 12 September 2002 the Supreme Court quashed that decision on appeal by the prosecutor. Thus, the defendants have remained in custody for 8 months and 16 days, starting from the date of the case's referral and excluding the period between [the end of the] examination on the merits and the quashing of the decision [of 13 March 2002] on appeal.
Regard being had to the fact that the defendant is charged with serious and particularly serious criminal offences, in order to secure the examination of the case and the enforcement of the conviction [sic], there are no grounds to [release the applicant]. Under these circumstances, pursuant to Article 255 § 3 of the Russian Code of Criminal Procedure, the defendant's detention on remand is extended for an additional three months”.
45. On 4 December 2002 the Vladimir Regional Court granted a further extension of the applicant's detention for three months, that is to say until 3 March 2003 [the decision mistakenly indicates 2002]. The grounds invoked by the court were identical to those set out in the decision of 18 November 2002.
46. On 22 and 26 November and 5 December 2002 the applicant's lawyers lodged appeals against the decisions of 18 November and 4 December with the Supreme Court. They submitted, in particular, that the six-month period of the applicant's detention which had started from the moment the case was referred for trial, had expired on 2 March 2002 but had been extended only two months and sixteen days later, on 18 November. Therefore, the applicant's detention from 13 March to 12 September 2002 had not been covered by any detention order: the prosecution had not assumed responsibility for the case, whilst the courts considered that the case had been remitted for an additional investigation and held the prosecution accountable for the applicant's detention.
47. On 3 March, 28 May, 28 August and 27 November 2003 and 27 February 2004 the Vladimir Regional Court authorised further extensions of detention in respect of the applicant and 12 co-defendants, on each occasion for a period of three months. The reasons given in the decisions of 3 March, 28 May and 28 August 2003 were identical to those given in the decisions of 18 November and 4 December 2002 (see above). The decisions of 27 November 2003 and 27 February 2004 referred to the gravity of the charges and the existence of “sufficient reasons to believe that the defendants would abscond”.
The applicant submitted appeals against each of these decisions.
48. Between May 2003 and 15 March 2004 the trial proceeded. On 19 April 2004 the parties began their final submissions.
49. On 28 May 2004 the Vladimir Regional Court, by an interim decision, held that the applicant's detention on remand was not to be extended because the prosecution had reduced the charges against him. He appears to have been released from custody the same day.
50. On 21 March 2005 the Supreme Court examined the applicant's and/or his co-defendants' appeals against the decisions of 18 November and 4 December 2002, 3 March, 28 May, 28 August and 27 November 2003 and 27 February 2004 extending their detention on remand.
The Supreme Court quashed the decisions of 18 November and 4 December 2002 and 3 March 2003 on the ground that they had been given by an incomplete formation: a single judge instead of a three-judge panel. As regards the applicant's situation, it further held:
“Since the judge's decision has been quashed because of a breach of the rules of criminal procedure, the court will not examine the arguments in the appeals alleging that the extension of the [applicant's] detention was unlawful on other grounds. The matter will not be remitted for a new examination because [the applicant] has been acquitted.”
The Supreme Court upheld the other decisions, finding that the Regional Court had correctly referred to the gravity of the charges and the existence of sufficient grounds to believe that the defendants would abscond during the trial.
51. On 18 June 2004 the Vladimir Regional Court, by an interim decision, dismissed the charges of participation in an organised criminal enterprise and running an opium den against the applicant after they were withdrawn by the prosecution.
52. By another interim decision of the same date, the court dismissed a charge against the applicant in respect of one incident of drug possession because of a recent change in the Russian criminal law that had decriminalised possession of negligible amounts of drugs.
53. Finally, by a judgment of the same date, the court acquitted the applicant of the remaining drug-trafficking charges because his involvement in the commission of the offences could not be proven. Some of his co-defendants were convicted and sentenced to various terms of imprisonment.
54. On 21 March 2005 the Supreme Court of the Russian Federation upheld, on appeal, the above judgment and decisions of the Vladimir Regional Court.
55. On 10 December 2002 the Constitutional Court examined the applicant's complaint concerning his exclusion from the proceedings before the Supreme Court and confirmed that the applicant should have had the right to appear in person and plead his case before the court if a prosecutor was present.
56. On 15 July 2003 the Constitutional Court issued decision (определение) no. 292-O on the applicant's complaint about the ex post facto extension of his “detention during trial” by the Regional Court's decision of 18 November 2002. It held as follows:
“Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may... upon the expiry of six months after the case was sent to it, extend the defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending the defendant's detention on remand once the previously authorised time-limit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator... to release anyone who is unlawfully held in custody beyond the time-limit established in the Code immediately. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution...”
57. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on the applicant's complaint about the Supreme Court's refusal to permit him to attend the appeal hearings on the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...”
58. From 16 February 2000 to 28 May 2004 the applicant was held in detention facility no. OD-1/T-2 of the Vladimir Region (учреждение ОД1/Т-2 УИН МЮ РФ по Владимирской области), known as “Vladimirskiy Tsentral”. He stayed in various cells in wings nos. 3 and 4, built in 1870 and 1846, respectively.
59. According to a certificate issued on 22 April 2004 by the facility director, and which the Government have produced, the applicant was kept in eight cells described as follows: cell no. 4-14 (12.1 square metres, 6 bunks, average population 4 to 6 inmates), cell no. 4-13 (12.3 sq. m, 6 bunks, 5 to 7 inmates), cell no. 4-9 (23.4 sq. m, 13 bunks, 13 to 20 inmates), cells nos. 3-3, 3-53, 3-54, 3-51 and 3-52 (35 to 36 sq. m, 16 bunks, 12 to 18 inmates).
60. The applicant did not dispute the cell measurements or the number of bunks. He disagreed, however, with the figure given by the Government for the number of inmates. According to him, between February and December 2000 he stayed in cell no. 4-9 that housed 18 to 35 inmates and between December 2000 and May 2004 he was kept in cells measuring approximately 36 sq. m, together with 20 to 40 other detainees. After the new Code of Criminal Procedure came into effect on 1 July 2002, the number of inmates in his cell dropped to between 15 and 25. Given the lack of beds, inmates slept in eight-hour shifts. They waited for their turn sitting on the concrete floor or on a stool if one was available.
In support of his statements the applicant produced written depositions by three former cellmates, Mr Abdurakhmon Kayumov, Mr Sergey Gunin and Mr Yan Kelerman. They stated, in particular, that in 2003-2004 cell no. 3-52 had housed 20 to 30 inmates (Mr Kayumov's deposition) or even 25 to 35 (Mr Gunin's deposition), as had cells nos. 3-51 and 3-53. They also testified that they and the other detainees had slept in turns.
61. The Government, relying on a certificate of 8 April 2004 from the facility director, submitted that the “sanitary and anti-epidemic condition of the facility remained satisfactory, including... in the cells where [the applicant] had been held”. Another certificate of 20 April 2004 showed that “the cells... were equipped with [a lavatory pan] placed no more than 10 cm above the floor and separated by a partition of 1.5 m in height with additional curtains”. Running tap water was available and detainees were permitted to use immersion heaters.
62. The applicant conceded that there had been no outbreaks of contagious diseases or epidemics. Apart from that, the sanitary conditions were wholly unsatisfactory. Prisoners infected with tuberculosis, hepatitis, scabies and the human immunodeficiency virus (HIV) were occasionally held in his cell. The cells were infested by lice, bed-bugs, flies, mosquitoes, cockroaches, rats and mice, but the facility administration did not provide any repellents or insecticides. Detainees were not given any toiletries, such as soap, toothbrush, toothpaste or toilet paper, apart from 100 grams of caustic soda once a week and two plastic bottles of bleach (1.5 litres each) every two or three months. Cells had no ventilation systems. In winter they were cold and in summer it was hot, stuffy and excessively damp inside.
63. The applicant challenged the Government's description of the toilet facilities as factually untrue. The cast-iron pan was raised on a pedestal about 50-80 cm high and separated from the living area from one side with a one-metre-high partition. The person using the toilet was in full view of other inmates. No curtains were provided; occasionally the inmates hung a sheet but wardens tore it down and disciplined those responsible. What is more, the lavatory pan had no seat or cover: inmates stuck an empty plastic bottle in the hole in order to prevent smells from spreading. The dining table was fixed to the floor just a few metres from the pan. His description was corroborated by written depositions by former cellmates, Mr Kayumov, Mr Gunin, Mr Kelerman and Mr Sergey Kalenik, and four colour photos showing the lavatory pan and the dining table from various angles.
64. The Government asserted that “the applicant was fed in accordance with the established legal norms”. It appears from an undated certificate signed by the facility director that his daily diet consisted of 100 g of meat, 100 g of fish, 100 g of groats, 20 g of pasta, 20 g of salt, 1 g of tea [sic], 0.5 kg of potatoes, 0.25 kg of vegetables, 0.55 kg of bread.
65. The applicant submitted that the food was of an extremely low quality. Many a meal only contained so-called balanda, a soup-like mix of millet, barley and pasta without any fat. Meat was replaced with a soya substitute. No fresh vegetables were given, occasionally the evening meal included cooked beetroot, sauerkraut or pickled cucumbers. Salt and tea were never distributed. Written depositions by four of the applicant's former cellmates confirmed these submissions.
66. The parties agreed that the applicant had been entitled to a daily walk of about one hour. The applicant indicated, however, that he was not able to go outdoors on days when there were court hearings.
67. The Government did not describe the outdoor conditions. The applicant, and four former cellmates in written depositions, portrayed the following picture of the exercise yards: The yards were closed premises measuring 12, 26 or 40 sq. m. The opening to the sky was covered with a metal roof with a one-metre gap between the roof and the top of the walls. In summer it was extremely hot and stifling inside as the sun heated the roof. The walls were coated with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls. The entire cell population was brought to the yard at once; occasionally it was impossible to move around, let alone to exercise, because of the sheer number of prisoners.
68. According to the applicant, metal blinds that prevented natural light getting into the cells were only removed on 28 December 2002 after a delegation that included a representative of the Council of Europe had paid a visit to Vladimir detention facilities. The Government did not contest that information.
69. The applicant's relatives were not permitted to see him throughout the pre-trial investigation. After the trial began, he was allowed four short visits by his wife, children, sister and brother. At these meetings the applicant and his parents were prohibited from talking in any language other than Russian. The applicant was likewise prohibited from corresponding with his relatives other than in Russian: the facility administration refused to dispatch or hand over letters written in Tajik.
70. The Government explained that these restrictions had been due to the lack of a staff interpreter from Tajik in the facility.
71. The applicant was transported from the remand centre to the Vladimir Regional Court for hearings on 205 occasions; of these hearings, 185 concerned the charges against him and 20 applications for extensions of detention. The applicant offered the following description of these days, which was corroborated by written depositions from four former cellmates.
72. On the day of the hearing he was woken up at 4 or 5 a.m. At about 8 a.m. he was taken from his cell to the so-called “assembly cell”, together with other detainees who had a hearing on that day. Each “assembly cell” measured 9.2 to 9.9 sq. m and housed 10 to 20 prisoners. “Assembly cells” had no ventilation system and the air was soon heavy with smoke. At about 9 or 9.30 a.m. the applicant was taken to a van.
73. The prison van had one collective compartment designed for four prisoners and six individual compartments of one sq. m. It was designed to carry ten prisoners. However, it transported between 15 and 20 and on one occasion 27 detainees. The applicant was put in an individual compartment together with another prisoner. Owing to the lack of space, one of them would sit on the bench and the other on his lap. The route to the Vladimir Regional Court took one hour and the van called at other facilities on its way.
74. The applicant did not normally arrive back at the prison until 6 or 8 p.m. During the day he received no food or outdoor exercise and was liable to miss out on the shower he was allowed periodically.
75. The Government submitted that the applicant had been transported in special prison vans that met the standard requirements. The route from facility no. OD-1/T-2 to the Vladimir Regional Court was eight kilometres long and took thirty minutes.
76. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist 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”).
77. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89 of the old CCrP, Article 98 of the new CCrP).
78. The Russian Constitution of 12 December 1993 establishes 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 detention on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
79. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or re-offend (Article 89 of the old CCrP). 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 91 of the old CCrP, Article 99 of the new CCrP).
80. Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
81. The Codes distinguished between two types of detention on remand: the first being “pending the investigation”, that is while a competent agency – the police or a prosecutor's office – investigated the case, and the second “before the court” (or “during the trial”), that is while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
82. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
83. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
84. Access to the file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case-file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
85. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant's detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97).
86. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”).
87. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.
88. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file and to the date 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).
89. Under the old CCrP, the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1).
An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine).
90. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10).
91. Upon receipt of the case-file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP).
92. At any time during the trial the court may order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges in the formation (Article 261 of the old CCrP, Article 256 of the new CCrP).
93. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below).
94. Under the old CCrP, within fourteen days after receipt of the case-file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
95. The duration of the trial is not limited in time.
96. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible.
The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374).
97. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows:
“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation...
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness...
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.
20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.
21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
45... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited...”
98. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...
48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...
50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-104257
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF CONOVALI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: The applicant, Ms Valentina Conovali, is a Moldovan national who was born in 1945 and lives in Chişinău. She is represented before the Court by Ms E. Botnari, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
On 2 November 2004 the Centru District Court ordered the Chişinău local council to provide the applicant with accommodation. This judgment became final on 18 November 2004.
On 11 October 2005 the final judgment in favour of the applicant was fully enforced.


ITEMID: 001-60166
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DEL SOL v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 8. By a judgment of 6 October 1995, the Paris tribunal de grande instance made a divorce order terminating the marriage of Mr and Mrs Del Sol, ordered the liquidation and partition of the matrimonial property, set the level of maintenance to be paid to the applicant at 1,300 French francs (FRF) monthly and dismissed a claim for damages by the applicant.
9. On 8 December 1995 the applicant appealed against that judgment, stating, inter alia, that her husband, the petitioner in the proceedings, had failed to satisfy the conditions set out in the Civil Code, as he had no rights in the assets he had offered to leave her. She argued in the alternative that a divorce would cause her exceptional hardship and that her husband's petition should be dismissed in accordance with Article 240 of the Civil Code, which empowered the court to dismiss a divorce petition if the respondent showed that “the divorce would cause the respondent ... or the children exceptional material or psychological hardship ...”. The applicant also sought maintenance in the form of monthly payments of FRF 3,000.
10. On 25 February 1997 the Paris Court of Appeal upheld all the provisions of the impugned judgment, with the exception of the decision relating to maintenance, which was reduced to FRF 1,000 monthly. It held, inter alia, that the applicant's husband satisfied all the conditions on which the admissibility of the divorce petition depended, as he had offered to assign to the applicant his rights in property which the couple jointly owned in Italy. It further held that the applicant had failed to show that the divorce would cause her exceptional hardship, either psychologically or materially.
11. On 20 May 1997 the applicant applied to the Legal Aid Office at the Court of Cassation for legal aid to enable her to appeal to that court against the Court of Appeal's decision. Her application was refused on 2 April 1998 on the ground that no arguable ground of appeal could be made out against the impugned judgment. The Legal Aid Office noted, however, that the applicant satisfied the means test for legal aid.
12. On 22 May 1998 the applicant appealed against that decision. By an order of 11 June 1998 the President of the Court of Cassation upheld it, holding that the Legal Aid Office had “found no arguable ground of appeal after assessing the facts of the case in its unfettered discretion”.
13. The French system of legal aid enabling persons of limited means to assert their right through the courts was established by Law no. 91-647 of 10 July 1991 and its implementing Decree no. 91-1266 of 19 December 1991.
Under Article 33 of the decree: “Applications for legal aid ... shall contain the following information: ... the purpose of the application and a brief summary of the reasons”.
Applications for legal aid are examined by the legal aid office of the court dealing with the case in respect of which the application is made. The Legal Aid Office at the Court of Cassation is composed of a judge of that court, who acts as its president, the senior registrar who acts as vice-president, two members chosen by the Court of Cassation, two civil servants, two court officers one at least of whom must be a lawyer and a member appointed by the general public (section 16 of the Law).
The Legal Aid Office may refuse an application under section 7(3) of the Law, which provides: “In cases before the Court of Cassation, an application for legal aid shall be refused if no arguable ground of appeal can be made out.” An appeal lies against a decision of the Legal Aid Office to the President of the Court of Cassation (section 23 of the Law).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118761
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: A.G. v. THE REPUBLIC OF MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Ms A.G., is a Moldovan national, who was born in 1988 and lives in Trebujeni. She was represented before the Court by Mr A. Briceac, Mr T. Cârnaț, Mr S. Urâtu and Mr E. Ciobanu, acting on behalf of the Helsinki Committee for Human Rights of Moldova.
2. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a disabled person suffering from severe mental incapacity. The nature of her condition means that she requires full-time care from her mother. At the time of the events she was seventeen years and nine months old.
5. On 13 September 2006 the applicant followed a young man, G.P., who was sixteen years old at the time, out of her home. Two female neighbours saw them and asked where they were going. According to the neighbours, the applicant had replied that they were going to go somewhere to kiss and fondle. The neighbours decided to follow them to ensure that nothing happened to the applicant. The applicant and G.P. crossed the shallow part of a small river. The neighbours saw the applicant and G.P. first kiss under a tree and then disappear into some bushes near some cliffs. It was alleged that G.P had then assaulted the applicant and that she had let out a scream, but the neighbours did not see or hear anything. While they were watching the applicant and G.P., a man named V.D. also crossed the river and went the way the applicant and G.P. had gone. According to one of the applicant’s neighbours, who knew V.D., he had been taking a shortcut home to the neighbouring village. He was later seen by their village’s mayor. After crossing the river, V.D. passed by the bushes where the applicant and G.P. were, but he did not see them.
6. One of the neighbours ran off to inform the applicant’s parents. The other neighbour, who did not move from where she was, could not see the events that followed because of the bushes, but she kept shouting at G.P. to let the applicant go.
7. Soon afterwards, the applicant’s brother arrived and G.P. ran away. The applicant’s brother did not find the applicant because he had been looking in the wrong place. The applicant saw her neighbours on the other side of the river and joined them after being directed by them to a shallow point of the river. According to the neighbours, she had appeared scared and had said that G.P. had kissed her. They did not see any injuries on the applicant’s body and her clothes were wet from crossing the river. One of the neighbours took her home where, eventually, the applicant told her and her parents that G.P. had beaten her up.
8. A medical report dated 14 September 2006, which forms part of the case file, states that the applicant had been gang-raped. The circumstances in which that report was obtained are not clear.
9. According to a medical report dated 15 September 2006 the applicant had a freshly torn hymen and some minor bruising around her genitals. No other injuries were found.
10. On 18 September 2006 the applicant’s mother lodged a criminal complaint in which she accused G.P of raping her daughter. On the same date, the applicant’s stepfather told the police that the applicant had in fact been raped by two people, namely G.P. and V.D.
11. In a statement of 6 October 2006 to the prosecutor, the applicant submitted that G.P. had come to her house, beaten her up and taken her by force to a secluded place on the other side of the river, where he had raped her. She did not accuse anyone other than G.P. She made a similar statement on 20 October 2006.
12. In a statement of 20 October 2006 to the prosecutor, the applicant’s mother submitted that after being raped by G.P., the applicant looked as though she had been assaulted and her clothes had been soiled with blood and torn. The applicant’s mother did not accuse anyone other than G.P.
13. As to G.P.’s version of events, he initially denied having had sexual intercourse with the applicant; however, he later admitted that they had done so but stated that he had not forced her to. He also admitted having slapped her once across the face after intercourse because she had provoked him.
14. In a second medical report dated 20 October 2006 a doctor found that the applicant had suffered a blow to the head and had bruising around her nose.
15. On 7 December 2006 a prosecutor questioned V.D., who confirmed the applicant’s neighbours’ statements that he had crossed the river on the evening of 13 September 2006 to take a shortcut to the neighbouring village. He submitted that he had not seen the applicant and G.P., but that he had seen the mayor.
16. The prosecutor also obtained a report from the school where G.P. was a pupil, according to which he was said to have had limited intellectual abilities.
17. Following an investigation, the prosecutor’s office concluded that G.P. had been the sole perpetrator of the rape and initiated criminal proceedings against him. The prosecution recommended a sentence of three years’ imprisonment in a young offenders’ institution.
18. In the trial before the first-instance court, the applicant’s mother claimed compensation in the amount of 3,000 Moldovan lei (MDL ‒ approximately 200 euros) from G.P. She did not give any evidence to suggest that V.D. had been involved and did not seek to have him convicted. G.P. submitted that he had not forced the applicant to have sexual intercourse with him and that he had only slapped her because she had provoked him. The applicant stated that she had followed G.P. from her house to a secluded place on the other side of the river and that she had kissed him. G.P. had then told her to undress and when she had refused, he had punched her in the nose. After the rape, she had heard her brother calling to look for her, and G.P. had then run away. The applicant was specifically asked whether anyone else had been present and she replied that they had been alone. The applicant was assisted in court by her mother, who made a formal statement to the effect that the applicant had not been intimidated and was giving evidence in her own words.
19. On 2 February 2007 the Orhei District Court found G.P. guilty of rape and, in view of the fact that he was a minor, gave him a suspended sentence of three years’ imprisonment with a probationary period of one year. He was also ordered to pay the applicant damages of MDL 3,000, the same amount claimed by the applicant’s mother.
20. The applicant’s mother appealed against the decision and argued, inter alia, that the proceedings had been unfair because the court had tried to cover up the crime. She submitted that the court had not established the identity of the second person who had raped her daughter and that G.P.’s sentence had been too lenient. She also argued that the amount of compensation claimed by her at first instance had been too low because she had been misled by the prosecutor, who had informed her that that amount was the maximum which could be claimed. The applicant’s mother submitted a fresh claim for damages in the amount of MDL 100,000.
21. The prosecutor’s office also appealed against the judgment of the first-instance court on the grounds that the sentence was too lenient.
22. During the proceedings before the Court of Appeal, the applicant’s mother submitted a request for further witnesses to be examined; however, her request was refused on the grounds that they could not have brought anything new or significant to the case. One of the eyewitnesses could not be examined because she had since emigrated. The court simply read out the statements she had given during the investigation. On 5 June 2007 the Chişinău Court of Appeal dismissed both appeals. The court found, inter alia, that the sentence imposed on G.P. had exceeded the maximum limit set out in the Criminal Code for offences committed by minors. It was reduced to a suspended sentence of two years’ imprisonment with a probationary period of two years.
23. The applicant’s mother lodged an appeal on points of law in which she contended that G.P.’s sentence had not been proportionate to the seriousness of the offence committed by him and that the amount of damages awarded had been too low. However, that appeal was dismissed by the Supreme Court of Justice on 31 October 2007.
24. At the material time Article 171 of the Criminal Code provided that the offence of rape was punishable by a minimum of three and a maximum of five years’ imprisonment. The same offence committed knowingly against a minor, or by two or more persons, was punishable by a minimum of five and a maximum of fifteen years’ imprisonment.
25. Article 70 of the Criminal Code provided that where the offence was committed by a minor, the maximum sentence was to be halved.
26. ’ imprisonment.


ITEMID: 001-57700
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF FEJDE v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo;R. Pekkanen
TEXT: 9. Mr Hans Fejde, a Swedish citizen, is a businessman residing at Västra Frölunda in the South-West of Sweden.
10. In connection with the bankruptcy of the applicant’s removal firm in 1984, a rifle was found among the goods stored on its business premises. Following a police investigation during which it was recorded that the rifle lacked a breech-block, the applicant was charged, on 2 March 1984, with illegal possession of a weapon (olaga vapeninnehav) contrary to the Weapons Act 1973 (vapenlagen 1973:1176; "the 1973 Act"). Section 1, sub-section 2, of the 1973 Act expressly included within the definition of weapons unusable items which, if made usable, would count as weapons.
11. The applicant was subsequently summoned to appear before the City Court (tingsrätten) of Göteborg for a hearing of his case (huvudförhandling) on 27 August 1984. In its judgment of the same date the court stated:
"[The applicant] has contested criminal liability, on the following grounds: the weapon in question was owned by R.T., who was married to his mother. R.T. is dead. When [the applicant’s] mother moved house some ten years ago the weapon went to [the applicant’s] storage room together with furniture for which there was no room in his mother’s new home. The weapon was found in the storage room in connection with [the applicant’s] bankruptcy. He was aware of the weapon being there all the time but he did not think of it as a weapon. The rifle lacks a breech-block and there was never any ammunition. [The applicant] does not consider himself to be the owner of the rifle since it is his mother, now 82 years old, who is the formal owner of it.
The court finds that [the applicant] cannot avoid being held responsible for the possession of the weapon, but that the violation of the Weapons Act is of a minor character."
The court sentenced him to 30 day-fines (dagsböter) of 10 kronor each, i.e. 300 Swedish kronor in total. The daily amount of the fines was fixed on the basis of Mr Fejde’s financial situation. The court also upheld the earlier decision taken by the police to seize the rifle.
12. On 4 September 1984 the applicant appealed to the Court of Appeal for Western Sweden, alleging that:
(a) the police investigations had not been sufficiently thorough;
(b) although he admitted that he was aware that the weapon was in his removal company’s care, he questioned whether this company really had a duty to check that the weapon had a valid licence;
(c) new facts had come to light, namely that the actual owner of the rifle was not the applicant’s mother, but the son of his now deceased stepfather;
(d) the sentence imposed by the City Court was much too severe in that it had been entered on the criminal records and would have detrimental effects on his future life, in particular as far as his chances of employment were concerned;
(e) the 1973 Act had not been correctly applied in his case because the rifle in question had no breech-block, something which could be proven by his mother and half-brother, and hence could not be considered a weapon within the meaning of the Act.
13. By letter of 23 October 1984 the Court of Appeal notified the applicant that, according to Chapter 51, section 21, of the Code of Judicial Procedure, his case could be dealt with without a hearing and invited him to express his views within fourteen days as to the necessity for a hearing. Alternatively, he could submit his final written observations within the same time-limit. He was asked to indicate in his reply any evidence on which he would rely.
14. By letter of 24 October 1984 the applicant informed the Court of Appeal that he considered a hearing to be necessary in his case and requested the appointment of a defence lawyer under the free legal aid scheme. In a letter of 15 February 1985 he also advised the Court of Appeal that the lower court’s judgment had caused him damage because it had on a number of occasions led prospective employers to turn down his applications for work.
15. According to a note dated 4 March 1985, written by an official of the court following a telephone conversation with the applicant, the latter stated that he would not insist on calling witnesses because it was no longer disputed that the breech-block was missing.
16. On 6 March 1985 the Court of Appeal refused the applicant’s request for a defence lawyer. On the same day he was also informed that, since the case could be decided without a hearing, he should submit his final written observations within ten days.
17. In a letter of 11 March 1985 the applicant reiterated his argument that the rifle could not be considered a weapon within the meaning of the 1973 Act and again offered his half-brother’s testimony on this point. Furthermore, the applicant contested the Court of Appeal’s refusal to appoint a defence lawyer. The Court of Appeal, taking the latter submission to be an application for leave to appeal, referred the matter to the Supreme Court (högsta domstolen), which refused him such leave on 19 June 1985.
18. The Court of Appeal examined the case on 22 August 1985 and, in accordance with Chapter 51, section 21, of the Code of Judicial Procedure, first sub-paragraph, point 4, and third sub-paragraph, dismissed the applicant’s request for a trial hearing as this was found to be manifestly unnecessary (see paragraph 21 below). This decision was made public on 2 October 1985 when judgment was delivered. The court’s judgment stated, inter alia:
"[The applicant] has submitted to the Court of Appeal the same information as was mentioned in the judgment of the City Court and added: when [his stepfather] and his mother separated, his stepfather left the rifle at the mother’s place of residence at Furuby. Because [the stepfather] has died it is his son ... who is the owner of the rifle.
It is undisputed that [the applicant] has been in possession of the rifle without a permit. Regardless of how it came into his possession and who owns it, he shall therefore be convicted of having violated the Weapons Act. The sentence should be [the one determined by] the City Court.
The Court of Appeal, which accepts [the applicant’s] explanations as to how the rifle came into his possession, finds that he is not the owner of it. Accordingly, the question of confiscation of the rifle concerns a person who is not accused in the present case. An action for confiscation should be directed against the owner of the rifle in accordance with Section 17 of the Act of 1946 on promulgation of the new Code of Judicial Procedure. No such action has been taken in this case. The request for confiscation is therefore rejected."
19. On 12 October 1985 the applicant sought leave to appeal to the Supreme Court. He maintained, inter alia, that vital evidence, namely that the rifle had no breech-block and accordingly could not be a weapon within the meaning of the 1973 Act, had been disregarded by both the City Court and the Court of Appeal. He asserted that this could easily have been proved had the Court of Appeal granted his request for a hearing and heard witnesses. The Supreme Court refused leave to appeal on 3 March 1986.
20. On 15 April 1986 the Supreme Court refused an application by Mr Fejde to have his case re-opened.
21. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do however exist, particularly at appellate level. Thus, Chapter 51, section 21, of the Code of Judicial Procedure (as amended as of 1 July 1984 by Law 1984:131) provides:
"The Court of Appeal may dispose of an appeal on the merits without a hearing:
1. if the prosecutor appeals only for the benefit of the accused,
2. if an appeal brought by the accused is supported by the opposing party,
3. if the appeal is plainly unfounded, or
4. if no cause exists to hold the accused legally liable, or to impose a sanction upon him, or to impose a sanction other than a fine or conditional sentence, or a combination of such sanctions.
...
If, in a case referred to [above], a party has requested a hearing, this shall take place unless manifestly unnecessary.
...
For a ruling not relating to the merits a hearing need not take place."
22. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits on its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228), also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68940
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF URUKALO AND NEMET v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicants (husband and wife) were born in 1933 and 1953, respectively, and live in Virovitica, Croatia.
5. During a military operation undertaken during the Homeland War by the Croatian Army, in August 1995, the applicants' house in Karin Gornji, Croatia was destroyed.
6. On 10 September 1998 the applicants instituted civil proceedings in the Obrovac Municipal Court (Općinski sud u Obrovcu) against the State seeking damages for their destroyed property.
7. On 6 November 1999 the Amendments to the Civil Obligations Act (“the 1999 Amendments”) entered into force. The amended legislation provided that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia were to be stayed.
8. On 1 December 1999 the Obrovac Municipal Court dismissed the applicants' claim. The applicants appealed.
9. On 8 March 2000 the Zadar County Court (Županijski sud u Zadru) returned the case file to the first-instance court with an instruction to stay the proceedings pursuant to the above legislation.
10. On 23 March 2000 the Obrovac Municipal Court stayed the proceedings.
11. On 31 July 2003 new legislation on the liability of the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War (“the 2003 Liability Act”) entered into force.
12. The Government submitted that the applicants' proceedings had resumed pursuant to the above legislation and that they are currently pending before the second-instance court.
The applicants submitted that they had received no decision to resume the proceedings.
13. Section 184 (a) of the Amendments to the Civil Obligations Act (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999 of 29 October 1999) (“the 1999 Amendments”) provides that all proceedings instituted against the State for damage caused by members of the Croatian Army and police in the performance of their official duties during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed. The 1999 Amendments also imposed an obligation on the Government to submit special legislation to Parliament regulating liability for such damage within six months of the Act entering into force.
14. The Act on the liability of the Republic of Croatia for damage caused by members of the Croatian army and police when acting in their official capacity during the homeland war (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) (“the 2003 Liability Act”) regulates the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. It also provides that all proceedings stayed pursuant to the 1999 Amendments are to be resumed.
15. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002) (“the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
16. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:
“ In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
17. On 24 March 2004 the Constitutional Court gave decision no. U-III-829/2004 in the case of Mr N., who had filed a constitutional complaint under section 63 of the 2002 Constitutional Court Act alleging a breach of Article 29 § 1 of the Constitution. He complained about the length of proceedings and the lack of access to a court because his action in the domestic courts had been stayed by statute for an extended period. In its decision, the Constitutional Court held that there had been a violation of the constitutional rights to trial within a reasonable time and to access to a court. It ordered the court concerned to give a decision in Mr N.'s case within one year and awarded him compensation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1