ITEMID: 001-108460
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SOKURENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicant was born in 1960 and lives in the town of Bratsk in the Irkutsk Region.
5. At around 3 a.m. on 29 January 2001 the applicant and his accomplice were arrested when attempting to rob a private shop. The applicant had tied up a shop attendant and the guard. His accomplice had threatened the staff with a gun. The police had to use physical force against the applicant, who was pacified and was then taken to a police station.
6. The applicant complained about the use of force against him. A medical report dated 5 February 2001 indicated that he displayed linear joining bruises on his left hip and two oval bruises on the right hip. The expert concluded that the injuries could have been inflicted with a man’s boots. The town prosecutor refused to initiate criminal proceedings against the officers. The inquiry was closed and reopened on several occasions between 2001 and 2008.
7. On an unspecified date an investigating or prosecuting authority decided that the applicant should be kept in detention pending the investigation of the attempted armed robbery. On 26 April 2001 the applicant was informed of his right to legal assistance. As can be seen from the notification record, the applicant waived the right to legal assistance for reasons “unrelated to financial hardship” and refused to sign the record. His accomplice also waived his right to legal assistance; the record was signed by a lawyer.
8. On an unspecified date the criminal case against the applicant was committed for trial at the Bratsk Town Court in the Irkutsk Region. On 23 July 2001 the Town Court rejected an application by the defence for the applicant’s release, noting that he was charged with a particularly serious offence and was not a resident of Bratsk. At the same hearing the court decided that the case file should be returned to the prosecutor “in view of the violation of the applicant’s right to legal assistance at the pre-trial stage of the proceedings”. On 17 September 2001 the Town Court decided, without giving any reasons, that the applicant should remain in custody.
9. On 16 July 2002 the Town Court extended the applicant’s detention as follows:
“The Code of Criminal Procedure entered into force on 1 July 2002...and requires that the detention issue be determined by a court... [The applicant] is charged with a particularly serious offence, has pleaded not guilty, has no permanent place of residence in Bratsk and, therefore, might abscond and obstruct the proceedings... The court decides that [the applicant’s] detention should be extended to 1 October 2002.”
The applicant appealed. On 10 September 2002, for unspecified reasons, the Irkutsk Regional Court adjourned the examination of the applicant’s appeal against that decision (see also paragraph 11 below).
10. On 2 October 2002 the Town Court ordered another extension, to 1 January 2003, in the following terms:
“While the court has taken note of the [applicant’s] state of health and disability, it cannot release him because he is charged with a violent and particularly serious offence, has pleaded not guilty and has no permanent place of residence in Bratsk. He might evade trial, continue his criminal activity and obstruct the proceedings; the victims fear to attend hearings.”
11. On 29 October 2002 the Regional Court again adjourned the examination of the applicant’s appeal against the detention order of 16 July 2002 because the applicant had not been brought to the appeal hearing. On an unspecified date in December 2002 the Irkutsk Regional Court upheld the detention order.
12. On an unspecified date, one of the victims of the armed robbery of 29 January 2001 made a written statement indicating that she would not participate in the trial hearings because she had received a letter containing threats. Two other persons made written statements indicating that they refused to participate in the trial hearings for unspecified reasons. In December 2002 two unsigned type-written letters, apparently addressed to two victims, were admitted to the criminal case file. They read as follows:
“I urge you to be honest at the trial hearing as regards what happened on 29 January 2001, that is, the officers’ actions. This is in your best interest. I do not give any details since you know everything and saw everything.”
13. On 26 December 2002 and 25 March 2003 the Town Court extended the applicant’s detention, referring to the absence of residence registration and permanent place of residence in Bratsk, the gravity of the charges concerning use of violence and firearms. On both occasions, the court also mentioned that several hearings had to be adjourned because the victims had not attended fearing for their lives. On 27 June and 30 September 2003 the Town Court heard the applicant’s counsel and issued further extensions on the same factual and legal grounds, also expressly referring to the above-mentioned letters. It appears from the above court decisions that the applicant was ill and, for that reason, did not attend the hearings.
14. From 26 March to 30 September 2003 the applicant was kept in a psycho-neurological dispensary and subsequently received in-patient treatment in a hospital.
15. On 9 December 2003 the Regional Court held an appeal hearing concerning the detention order of 30 September 2003. The court refused to hear the applicant in person and endorsed the reasoning of the detention order.
16. The applicant subsequently lodged a request to be released. On 29 December 2003 the Town Court rejected it and extended his detention until 1 April 2004, reproducing verbatim the text of the earlier extension orders. The applicant was represented by counsel at the hearing. It appears that the applicant appealed and that the Regional Court dismissed his appeal on an unspecified date in early 2004.
17. On 2 February 2004 the trial judge granted the applicant’s request for a medical examination and ordered that an expert from the Irkutsk psychiatric hospital be designated to carry out a forensic psychiatric examination of the applicant. On 13 March 2004 the applicant was transferred from Bratsk remand centre to Irkutsk for the psychiatric examination. The examination was not carried out, for unspecified reasons (see also paragraph 24 below). It appears that the applicant remained in Irkutsk for some time.
18. On 26 March 2004 the Bratsk Town Court extended the applicant’s detention until 1 July 2004. The applicant did not attend the hearing. Having agreed that the hearing be held without the applicant, his counsel made short submissions to the Town Court. On 21 June 2004 the Regional Court upheld the detention order in the following terms:
“... [the applicant] supplied no evidence in support of his argument that his state of health was incompatible with further detention in the remand centre and that he needed medical treatment...
...his right to be present at the first-instance hearing was not violated because he had been transferred to a hospital for a forensic examination.”
The applicant and his lawyer did not attend the appeal hearing.
19. From 26 June to 31 August 2004 the applicant was kept in a psycho-neurological dispensary.
20. In the meantime, on 28 June 2004 the Town Court extended the applicant’s detention until 1 October 2004. His counsel attended the hearing and made short submissions to the Town Court. As can be seen from the hearing record, in reply to a question from the judge the applicant’s counsel agreed that the hearing could proceed without the applicant.
21. On 10 or 11 July 2004 the applicant was returned to Bratsk remand centre. The President of the Bratsk Town Court was informed accordingly on 14 July 2004.
22. On 31 August 2004 the Regional Court rejected the applicant’s complaint of procrastination in the proceedings and upheld the detention order of 28 June 2004 as follows:
“...the grounds for extending [the applicant’s] detention still obtain...The proceedings were adjourned on several occasions for valid reasons...The applicant’s disability cannot justify his release.”
The applicant and his counsel did not attend the appeal hearing.
23. On 29 September 2004 the trial judge heard the prosecutor and the applicant’s counsel, rejected the latter’s challenge to the prosecutor and extended the applicant’s detention until 1 January 2005. The judge held as follows:
“It is noted that [the applicant] has been accused of a particularly serious violent offence causing damage to the victims’ life and limb and committed with the use of weapons. It is also noted that the expert report has not been issued; that [the applicant] has no permanent or registered residence in Bratsk; and that several adjournments have been ordered on account of the victims’ failure to appear before the court out of genuine fear for their life and limb. Since the circumstances justifying detention persist, the court has every reason to believe that [the applicant] would evade justice, continue his criminal activity, interfere with the course of proceedings and put pressure on the victims.”
The applicant did not attend the hearing.
24. In a procedural order of 30 September 2004, the trial judge noted that his order of 2 February 2004 (see paragraph 17 above) had not been executed for unspecified reasons, and ordered that the applicant be transferred to another remand centre to enable the authorities to prepare the expert report ordered by the court.
25. Between October and December 2004 the applicant was kept in the remand centre or a hospital in Irkutsk. In the meantime, on 29 November 2004 the Regional Court upheld the detention order of 29 September 2004 as follows:
“’s personality....The court rejects [the applicant’s] argument about the excessive length of his detention because the proceedings are pending and a forensic examination is required.”
The applicant and his counsel did not attend the appeal hearing.
26. In June 2001 the applicant sought the appointment of legal-aid counsel for the trial. In July 2001 lawyer A. was appointed by the Town Court. He represented the applicant until in October 2001, when the applicant dismissed him. Another lawyer was appointed, whom the applicant also dismissed. Many hearings were adjourned in late 2001 and 2002 because the presiding judge was involved in other proceedings or was on leave. In 2003 the proceedings were suspended, in particular because the applicant had been ill (after an attempted suicide at a court hearing in June 2003). It appears that the applicant hurt himself with some kind of needle or spike.
27. By a letter of 10 December 2004 the Regional Court wrote to the President of the Town Court indicating that the trial had been unreasonably long and urging him to speed it up. It was noted that there had been unjustified delays in the proceedings in 2002-2004.
28. By a judgment of 31 December 2004 the Town Court convicted the applicant of robbery and possession of weapons, and sentenced him to five years’ imprisonment, to be counted from 29 January 2001.
29. On 16 February 2005 the Town Court examined the applicant’s request for early release. Noting that he had already served most of the prison term and had a permanent place of residence, the court ordered his release.
30. According to the applicant, during his detention in Bratsk remand centre no. 2 pending trial he began a hunger strike in November 2003. Allegedly, he was placed in a punishment cell, where it was cold. During the night of 1 to 2 January 2004 a search was carried out in the cell, which he shared with several other detainees. The guards hit the detainees, including the applicant, with rubber truncheons. On 2 and 4 January 2004 the prison doctor refused to record the injuries. On 6 January 2004 the applicant was taken to a hearing in the Town Court, where he told the guards that he had swallowed a razor blade. This was true. The applicant explained that his intention had been to gain access to an “independent” medical professional in order to have his earlier injuries recorded.
31. The applicant was then taken to the city hospital where a trauma specialist observed linear blue bruises in the area of the shoulder blades. On the discharge certificate and the trauma card the trauma specialist concluded that the applicant had recently sustained bruises to the soft tissues of the thorax (front and back) and numerous oval bruises to the back. On or around 16 February 2004 the applicant asked his counsel to lodge a complaint about the unjustified use of force.
32. According to the Government, between 1 and 6 January 2004 the applicant did not seek any medical assistance in the medical unit of the remand centre. Nor did he make any complaint during daily checks carried out by the staff of that unit. On 6 January 2004 the applicant was taken from the courthouse to a hospital after swallowing a razor blade. As he also complained of chest and stomach pain, he was examined by a doctor. The applicant was issued with a certificate confirming thorax contusions. The certificate did not contain any detailed description of the injuries. On 16 February 2004 the applicant lodged a complaint about ill-treatment. The Bratsk acting deputy prosecutor supervising detention facilities was instructed to carry out a preliminary enquiry.
33. Following the applicant’s complaint, on 24 February 2004 a refusal to prosecute the remand centre officers was issued for lack of a criminal offence/event.
34. It appears that the refusal of 24 February 2004 was revoked in June 2004 because the applicant had lodged a new complaint. In the resumed inquiry several detainees and remand centre officers were interviewed. The prison medical officer stated that the records between 2 January and 11 March 2004 did not mention any complaint from the applicant. The trauma specialist of the hospital stated that he had examined the applicant on 6 January 2004 in the presence of a surgeon and that he was not able to describe the injuries, which had been recorded on the “trauma record card” at the time. This card had been handed over to the convoy officers.
35. A medical expert report was commissioned on 19 June 2004. In a report of 28 June 2004 the expert stated that he could not determine the nature and origin of the injuries but considered that they could not be classified by national standards as “causing any damage to the health”.
36. On 29 June 2004 the deputy prosecutor issued a decision refusing to initiate criminal proceedings against the staff of the detention facility on charges of abuse of authority by a public official (Article 286 of the Criminal Code). The deputy prosecutor held as follows:
“As alleged by the applicant during his initial interview, in the night of 1 to 2 January 2004 prison guards carried out a search in his cell and somebody inflicted several blows on his back with a rubber truncheon...
[Seven people], the applicant’s co-detainees at the time, stated that during the search the prison officers had been rude, and had taken the detainees into the lobby and placed them in another cell. They had heard the officers hit someone, but had not seen anything. They had not applied for medical assistance or examination in the medical unit of the detention facility.
Nine on-duty or other staff members, stated that no cell search had been carried out during the night of 1 to 2 January 2004; no restraints had been used against the applicant or any other detainee. The detainees had lodged complaints to slander staff members in order to obtain a better detention regime or to intimidate the staff.
The information provided by the medical unit and the security unit indicates that the applicant did not seek medical assistance or examination, that no cell search was carried out, that no restraints were used against the detainees and that no relevant record was drawn up... The applicant could not name any of the officers who had allegedly beaten him up... The detainees interviewed did not see any officer beat the applicant. No force or restraints were used against the detainees.
Since no medical record had been drawn up in the city hospital, the forensic expert could not determine the timing or origin of the injuries in the absence of information concerning the morphological features of the injuries.”
37. The applicant sought judicial review of the above refusal to prosecute. On 23 September 2004 the Town Court heard the parties and upheld the prosecutor’s decision. It held as follows:
“...[Nine people], the applicant’s co-detainees, heard and saw somebody being beaten up and threatened with dogs... Certain belongings were removed from the cell... The applicant stated that the prison officers had beaten up the detainees, then removed them from the cell and carried out the search...
The dog handler at the detention facility stated that she had not taken part in any cell search on the night of 1 to 2 January 2004; instead, she had been called to zone no. 4 where detainees were making a noise. When she got there, she remained in the lobby. Prison officers took some detainees out of their cells to have them tested for alcohol intoxication...
The officer in charge of the locker-room stated that on 1 or 2 January 2004 no detainees’ belongings had been taken out of any cell or placed in the locker-room for safekeeping ...
The refusal to prosecute is lawful and properly reasoned, being supported by the evidence gathered during the inquiry. The applicant has not raised before the court any argument capable of casting doubt on the findings made by the prosecutor. The applicant has not submitted any further material or request, for example, to call other witnesses or carry out investigative measures. The presence of injuries on his body is not the result of the use of force against him in the night of 1 to 2 January 2004. The applicant first sought medical assistance in a hospital on 6 January 2004. His cellmates did not apply for medical assistance.”
38. The applicant appealed. Having heard a representative of the prosecutor’s office, on 11 November 2004 the Regional Court upheld the judgment of 23 September 2004, endorsing the reasoning of the Town Court. However, the appeal court concluded that there was “no corpus delicti in the actions of the officers of the remand centre”.
39. In 2005 the applicant brought civil proceedings, claiming the outstanding amount of his disability pension. By a judgment of 6 May 2006 the Severobaykalsk Town Court of the Buryatiya Republic rejected his claims. On 12 July 2006 the Supreme Court of the Buryatiya Republic upheld that judgment.
40. Under section 44 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995), physical force may be used against a suspect or an accused in a detention facility in order to put an end to an offence or to resistance to lawful orders issued by public officials, if other means prove ineffectual. Rubber truncheons may be used to stop a detainee assaulting a public official, to put an end to mass disorder or breaches of prison rules committed in a group, to put an end to unlawful actions on the part of the detainee if he resists a lawful order, or to prevent him from causing damage to others (section 45). Handcuffs may be used to put an end to unlawful actions on the part of the detainee if he resists a lawful order, or to prevent him from causing damage to himself or others (ibid.).
41. Article 125 of the CCrP provides for judicial review of a decision or (in)action on the part of an inquirer, investigator or prosecutor, which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasoning of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasoned and to order the respective authority to remedy the violation; or (ii) to reject the complaint.
42. In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia considered that the above judicial review proceedings should not prejudge issues which could or the legal classification of the events (§ 1 of the Resolution). As regards a refusal to institute criminal proceedings, a judicial-review court should verify compliance with the procedure for dealing with a complaint about a committed or planned crime, to verify whether the refusal was taken by a competent authority or official and whether it was based on relevant legal grounds (§ 14). When declaring an official’s decision or (in)action unlawful and/or unreasoned, the judicial-review court should indicate that the official should remedy the shortcoming identified by the court. However, the court is not empowered to determine which actions should be taken by an investigating authority or official, or to annul or require annulment of their decision (§ 21).
43. For a summary of the applicable national legislation relating to detention on remand, see the Court’s judgment in the case of Khudoyorov v. Russia (no. 6847/02, §§ 76-93, ECHR 2005).
44. The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contained the following reservation:
“In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96-1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...”
45. On 1 July 2002 a new Russian Code of Criminal Procedure entered into force, replacing the RSFSR Code of Criminal Procedure of 27 October 1960.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-57952
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF BELLET v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 7. Mr Daniel Bellet, a French national born in 1944, is a local government officer of the City of Paris and is on extended sick-leave. As a sufferer from haemophilia A, the symptoms of which first appeared in 1948, he has frequently had blood transfusions, and in 1983 and 1984 numerous blood products were administered to him. On 26 October 1983 he was diagnosed as having been infected with the human immunodeficiency virus (HIV).
8. On 19 May 1990 the applicant applied to the Paris Administrative Court seeking damages from the State on account of his infection.
9. In a judgment of 8 April 1992 the court dismissed his action on the ground that he had been shown to be HIV-positive outside the period of the State’s liability for negligent failure to act, which began on 12 March 1985, when the ministerial authorities were fully apprised that the blood products prepared from groups of donors in Paris were dangerous.
10. Concurrently, in December 1991, Mr Bellet made an urgent application to the President of the Paris tribunal de grand instance for an interim order that the National Blood Transfusion Foundation ("the FNTS"), an organisation created by the merger of the National Blood Transfusion Centre and the National Blood Transfusion Institute, should pay him the sum of 3,000,000 French francs (FRF) in respect of damage sustained.
On 13 January 1992 the judge ordered an expert opinion to be prepared. In a report of 13 April the medical expert concluded that the applicant’s infection had very probably originated in the blood products supplied by the FNTS.
11. On 19 May 1992 counsel for the applicant, without informing the court of the claim lodged with the Compensation Fund (see paragraph 15 below), brought a second action against the FNTS for the sum of FRF 3,000,000.
12. In a judgment of 14 September 1992 the court held: "The HIV virus contracted by the plaintiff can only have been caused by the massive administration of blood products supplied by the defendant." The FNTS was consequently ordered to pay the applicant compensation in the amount of FRF 1,500,000, and the court ruled that its decision should be enforceable immediately.
On 16 October 1992 the FNTS, which had learnt of the compensation paid by the Fund, successfully applied for a stay of execution.
13. On an appeal by the FNTS and a cross-appeal by the applicant, who had joined the Fund to the proceedings by third-party notice, the Paris Court of Appeal set aside the judgment of the court below and held that Mr Bellet’s application to have the sum increased to FRF 3,000,000 was inadmissible. In its judgment of 12 March 1993 it gave the following reasoning:
"... section 47(III) [of the Act of 31 December 1991 - see paragraph 21 below] lays down that the Fund shall provide full compensation for damage resulting from infection.
While the obligation on the Fund and the one that may arise from the FNTS’s liability have different legal foundations, they have the same purpose, namely full compensation for damage sustained by victims.
Victims who have submitted a claim for compensation to the Fund may also bring legal proceedings to obtain compensation for the damage they have sustained, but once they have accepted the offer made by the Fund, they cease to have an interest enabling them to bring proceedings as they have been fully compensated.
The specific damage caused by infection and compensated for by the Fund is in the nature of pain and suffering, aesthetic damage and loss of amenity, not an economic loss. In the phase during which the victim is HIV-positive it includes the distress caused by reduced life expectancy, uncertainty as to the future, suffering and the fear of suffering, disruption of family and social life and damage relating to intimacy. In the phase after AIDS has developed, it includes suffering, which is greater, aesthetic damage and loss of amenity.
In the instant case Mr Bellet is suing the FNTS for compensation for this exceptionally serious damage and as he has been fully compensated by the Fund, he cannot claim additional compensation."
14. On 26 January 1994 the Court of Cassation (Second Civil Division) dismissed an appeal on points of law by Mr Bellet, who had argued that he had no access to a court for the purposes of Article 6 para. 1 (art. 6-1) of the Convention. It gave the following reasons for its judgment:
"The Court of Appeal, having found that the damage compensated for by the Fund was the same as that for which compensation was being sought from the FNTS and that the acceptance of the offer of compensation for the specific damage resulting from infection that had been made to him by the Fund fully compensated Mr Bellet, rightly concluded - on that sole ground and without infringing Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights as the victim had been able to apply to a court to have compensation assessed for his damage - that Mr Bellet’s action was inadmissible as he lacked any interest enabling him to bring proceedings."
15. On 9 April 1992, while his civil action was being prepared for trial and without acting through his lawyer, the applicant had submitted a claim to the Compensation Fund for Transfusion Patients and Haemophiliacs that had been set up by the Act of 31 December 1991 (see paragraph 21 below). He did not inform the Fund of the action he had brought in the Paris tribunal de grande instance.
16. On 21 May the Fund offered him as "HIV-infection compensation" the sum of FRF 993,750 payable in three instalments over a period of two years, from which FRF 100,000 paid out by the private haemophiliacs’ solidarity fund in 1989 was to be deducted. In addition, the applicant was to receive the sum of FRF 331,250 as soon as he developed AIDS (acquired immunodeficiency syndrome). The compensation offer contained the following information:
"At its sitting on 19 May 1992 the Compensation Board decided to make you an offer of compensation corresponding to the whole of your specific damage resulting from infection, that is to say the current and future damage resulting from HIV infection, and thereafter, if applicable, from the symptoms of AIDS.
On the basis of the average compensation awarded to date by the ordinary courts and the administrative courts and of the age at which you have shown that you were infected, the Board has determined the manner of compensation it is offering you as follows.
...
If you accept this offer, you should do so by registered letter with recorded delivery ...
Naturally, the award of this compensation does not prevent you from claiming other compensation in respect of pecuniary damage you may sustain or already have sustained, provided, of course, that you can furnish proof of it.
If this offer is not acceptable to you, you may bring legal proceedings in the Paris Court of Appeal as provided in section 47(VIII) of the Act of 31 December 1991 ..."
17. Following acceptance of the offer by the applicant on 7 July 1992, the Fund sent him an initial instalment of FRF 297,920 on 16 July. II. The compensation scheme
18. In a report of 5 December 1991 that he laid before the National Assembly on behalf of the Cultural, Family and Social Affairs Committee, Mr Boulard, MP, indicated that a victim could seek better compensation after accepting an offer from the Fund:
"That the compensation procedure is quite distinct is confirmed by the fact that it is possible for victims or their heirs to continue civil or criminal actions they may have brought in the administrative courts or even to institute them where they did not do so when submitting a claim to the Fund. Compensation by the Fund is therefore not a `settlement’ which precludes judicial remedies, unlike the aid granted by the public and private funds set up in 1989, but a compensation scheme based on the concept of risk and independent of any attempt to determine fault.
A victim must, however, inform the Fund and the court of the various actions brought. This provision is necessary because the Fund is subrogated to the victim’s rights against the person liable for the damage or against those who are, for one reason or another, under a duty to provide compensation."
19. Following the Court of Cassation’s judgment of 26 January 1994 in the present case, Mr Mazeaud, MP, proposed an interpretative Act in order to remove the drafting ambiguities which had given rise to that judgment. He considered that the court had interpreted the Act of 31 December 1991 in a way that achieved a result opposite to the one sought by the legislature. He consequently invited Parliament to amend section 47 of the Act of 31 December 1991 and particularly to delete in subsection (III) of that section the word "full" and insert at the beginning of subsection (V) a paragraph worded as follows:
"Acceptance of the compensation offer shall not preclude any concurrent or subsequent court proceedings in respect of the same damage."
In a report of 2 July 1994 on Mr Mazeaud’s bill on behalf of the National Assembly’s Cultural, Family and Social Affairs Committee, Mr Leccia, MP, supported the bill in substance and proposed a new text, adopted by the committee, which read as follows:
There shall be added after subsection (V) of section 47 of Law no. 91-1406 of 31 December 1991 making miscellaneous social-welfare provisions a new subsection (V bis) worded as follows:
‘Victims who have already been compensated by the date of publication of Law no. ... of ... shall retain, notwithstanding any court decision that has become final, the right to apply to the Paris Court of Appeal for a fresh assessment of the damage for which they have already been compensated.’
‘In respect of victims who have not been compensated by the date of publication of Law no. ... of ..., acceptance of the offer of compensation shall entail abandonment of any concurrent or subsequent court proceedings in respect of the same damage. Where a victim applies to the Paris Court of Appeal to challenge the amount of the offer made him by the Fund, he shall immediately receive from the Fund an advance amounting to at least four-fifths of the offer made.’ "
This bill is still being considered by the National Assembly.
20. In the opinion of 12 December 1991 that was submitted to the Senate on the bill then before it on behalf of the Committee on the Constitution, Legislation, Universal Suffrage, Regulations and General Administration, Senator Thyraud wrote, inter alia:
"The bill is a response to an exceptional situation. The arrangements it proposes may be regarded as being likewise exceptional. Independently of the current investigation into the apportionment of liability, including criminal liability, the community must afford the best redress it can for the consequences of such a tragedy.
...
As indicated in the introduction to this commentary, the intention of those who have framed the bill was to set up a fully independent scheme that could not be interpreted as in any way validating recent trends in the case-law on this matter. Simultaneously, victims’ possibility of resorting to the procedures of ordinary law, whether in the civil or administrative courts or in the criminal courts, has been preserved.
However, the bill’s wording is not fully explicit on this subject, and the text before us is silent as to the possible effects of earlier court decisions on the Compensation Board’s decisions, and also as to the effects of the Board’s decisions on subsequent judgments of other courts. The bill does not, for example, make it possible to determine whether or not the Board’s decisions imply recognition of liability or a presumption of guilt. Similarly, it does not state whether the Board is bound by earlier decisions of the courts."
21. Law no. 91-1406 of 31 December 1991 making miscellaneous social-welfare provisions set up a special scheme for the compensation of haemophiliacs and transfusion patients who had been infected following injections of blood products. The distinctive feature of the system, which is based on solidarity, is that it enables reparation to be made for the consequences of HIV infection independently of the investigation of liability. Section 47 provides:
"I. Victims of damage resulting from infection with the human immunodeficiency virus caused by transfusion of blood products or injection of blood derivatives carried out within the territory of the French Republic shall be compensated in the manner set out below.
II. No final settlement clause whereby a victim undertakes not to pursue any proceedings or action against any third party in respect of his infection shall be a bar to the procedure herein provided for.
III. Full compensation for the damage defined in subsection (I) shall be provided by a Compensation Fund, having legal personality, presided over by a serving or retired divisional president or judge of the Court of Cassation and administered by a compensation board.
A council whose members shall include representatives of the associations concerned shall be established to assist the chairman of the Fund.
IV. In their claims for compensation, victims or their heirs shall provide proof of their infection with the human immunodeficiency virus and of the transfusion of blood products or injections of blood derivatives.
...
Victims or their heirs shall communicate to the Fund all the information in their possession. Within three months of the receipt of a claim, a period which may be extended at the request of the victim or his heirs, the Fund shall consider whether the conditions for payment of compensation have been fulfilled. It shall investigate the circumstances under which the victim was infected and make any necessary inquiries, which may not be resisted on grounds of professional secrecy.
...
V. The Fund shall be required to make an offer of compensation to any victim referred to in subsection (I) within a time-limit laid down by decree, which may not exceed six months from the day on which the Fund receives full proof of the damage
...
VI. The victim shall inform the Fund of any judicial proceedings pending. If legal proceedings are brought, the victim shall inform the court of his application to the Fund.
VII. ...
VIII. The victim shall not be entitled to take legal action against the Compensation Fund unless his claim for compensation has been dismissed, no offer has been made to him within the time-limit referred to in the first paragraph of subsection (V), or he has not accepted an offer made to him. Proceedings shall be brought in the Paris Court of Appeal.
IX. The Fund shall be subrogated, for an amount no higher than the sums paid out, to the victim’s rights against the person liable for the damage and against persons required, for whatever reason, to make full or partial reparation for that damage, within the limits of those persons’ liabilities. However, the Fund may institute proceedings on the basis of that subrogation only where the damage is attributable to negligence.
The Fund may intervene in proceedings in the criminal courts, even if it does not do so until the appeal stage, where the victim or his heirs have claimed compensation as a civil party in proceedings pending against the person or persons responsible for the damage defined in subsection (I). In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
If the acts which caused the damage have given rise to criminal proceedings, the civil court shall not be required to defer its decision until there has been a final decision by the criminal court.
X. Unless otherwise provided, the provisions governing the implementation of this section shall be laid down in a decree issued after consultation of the Conseil d’Etat.
XI. ...
XII. The Compensation Fund’s sources of revenue shall be specified in a subsequent Act.
XIII. ...
XIV. ..."
22. In three judgments of 9 April 1993 the Judicial Assembly of the Conseil d’Etat ruled that "the State is wholly liable in respect of persons infected with the human immunodeficiency virus following a transfusion of non-heat-treated blood products between 22 November 1984 and 20 October 1985".
23. At the request of the Paris Administrative Court in respect of the Vallée case, on which the European Court had to rule (judgment of 26 April 1994, Series A no. 289-A), the Conseil d’Etat gave its view on the consequences of bringing concurrent proceedings in the administrative courts and before the Compensation Fund. Sitting in its judicial capacity on 15 October 1993, it gave the following opinion:
"1. The decree of 12 July 1993 ..., which is applicable to cases pending at the date of its publication, ... provides a solution to the problem raised [by the Administrative Court].
2. ... An administrative court asked to make such an award should raise of its own motion the fact that the damage complained of has already been wholly or partly indemnified by a third party, when the evidence shows this to be the case, even if that party does not file submissions - on the basis of its subrogation to the rights of the victim - seeking reimbursement of the amounts it has paid as compensation for the damage suffered by the latter.
Accordingly, an administrative court to which a claim for compensation for damage suffered as a result of infection with the human immunodeficiency virus has been submitted must, when it has been informed by one of the parties that the victim or his heirs have already received compensation for the damage complained of, deduct of its own motion such compensation from the amount payable in respect of the damage.
...
Where the sum offered by the Fund has been accepted by the claimants, ... it should be held that all or part of the damage complained of has been actually and finally compensated for by the Fund. Consequently, it is incumbent on an administrative court which has been informed that this is the case to deduct, of its own motion, the amount thus owed by the Fund from the compensation which it orders the public authority liable for the damage to pay to the victim."
24. Decree no. 93-906 of 12 July 1993 adds Articles 15-20 to Decree no. 92-759 of 31 July 1992 on proceedings brought in the Paris Court of Appeal under section 47 of Law no. 91-1406 of 31 December 1991 (see paragraph 21 above). It applies to all proceedings pending at the date of its publication, 17 July 1993.
Provisions relating to actions seeking to establish liability brought against those responsible for the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991
In order to bring the action by subrogation provided for in subsection (IX) of section 47 of the aforementioned Act of 31 December 1991, the Fund may intervene in proceedings in any of the administrative or ordinary courts, even if it does not do so until the appeal stage. In such cases it shall be considered a full party to the proceedings and may have recourse to all the remedies available in law.
The registries of the administrative and ordinary courts shall send the Fund by registered post with recorded delivery a copy of the procedural documents submitting to those courts any initial or additional claim for compensation of the damage defined in subsection (I) of section 47 of the aforementioned Act of 31 December 1991.
Within one month of receipt of the letter referred to in Article 16, the Fund shall inform the president of the relevant court by ordinary mail whether or not it has received a claim for compensation with the same purpose and, if so, what stage the procedure has reached. It shall also state whether or not it intends to intervene in the proceedings.
Where the victim has accepted the offer made by the Fund, the latter shall send the president of the court a copy of the documents in which the offer was made and by which it was accepted. The Fund shall, where relevant, indicate the stage reached in proceedings instituted in the Paris Court of Appeal under the provisions of Part I of this decree and forward any judgment delivered by that court.
The registry shall notify the parties of the information communicated by the Fund.
The registry shall send the Fund copies of the decisions given at first instance and, where relevant, on appeal in proceedings in which the Fund has not intervened.
...
The provisions of Articles 15 to 19 shall be applicable to cases pending on the date of entry into force of [this] decree ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95374
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EFENDİOĞLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1930 and had been living in Erzurum. On 11 June 2009 he died.
6. On 6 April 1989 the applicant bought a plot of land (no. 5784) in Istanbul. The land was later divided in five parts (plot nos. 13320, 13321, 13322, 13323 and 13324).
7. Upon the Ümraniye Municipality's decision to put a notice in the Land Registry in 1993, the applicant learned that there was a water pipeline passing underneath plot no. 13324.
8. On 12 April 2000 the Istanbul General Directorate for Water and Infrastructure (the “ISKI”) filed an action with the Üsküdar Civil Court of First Instance and requested the annulment of the title deed of the applicant to the land in question and its registration in their name. In this respect, they submitted that they had occupied the disputed plot of land since 1970 by way of laying down a water pipeline underneath it and that, therefore, it should be registered under its name pursuant to Article 38 of Law no. 2942.
9. In the course of the proceedings a commission of experts examined the documentary evidence and conducted an onsite inspection together with the court. On 17 July 2001 the experts submitted their report where they considered, inter alia, that the land in question would be worth around 305,972,500,000 Turkish liras. In the annexed document it was noted that plot no. 13324 was de facto a road.
10. On 28 December 2001 the Üsküdar Civil Court of First Instance, noting that as of 15 November 2001 the Ümraniye Civil Court of First Instance had become operational, transferred the case to it.
11. On 18 June 2002 the Ümraniye Civil Court of First Instance, on the basis of the evidence, particularly official documents concerning the construction of the water pipeline, accepted the request of the ISKI and ordered that the land be registered in their name. It considered, in particular, that the applicant's property rights over the land in question had ceased, following the expiry of the statutory timelimit provided under Article 38 of the Law no. 2942.
12. The applicant appealed. Referring to a court case concerning the previous owner of the plot of land, the applicant submitted, inter alia, that the water pipeline in question passed through another plot and not plot no. 13324, and that the statutory time-limit provided under Article 38 of the Law no. 2942 had not expired since a notice was put in the Land Registry only in 1993.
13. On 10 December 2002 the Court of Cassation upheld the firstinstance court's judgment. The applicant's request for rectification was rejected on 17 March 2003. This decision was served on him on 8 April 2003.
14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942.
15. On an unspecified date the applicant asked the Ümraniye Civil Court of First Instance to reopen the proceedings on the ground, inter alia, that, according to their own investigation there were no water pipelines passing underneath plot no. 13324 and, consequently, the court's earlier decision had been based on erroneous official documents and the false testimony of State officials.
16. On 11 December 2003 the Ümraniye Civil Court of First Instance dismissed the applicant's request on the ground that the applicant had already made similar claims in the earlier proceedings, that in the presence of official documents there was no need, in such cases, to investigate by digging up the disputed land, and that, although Article 38 of Law no. 2942 had been subsequently annulled by the Constitutional Court, this was not a reason for reopening the proceedings.
17. The applicant's appeal and subsequent request for a rectification was dismissed by the Court of Cassation on 17 May 2004 and 28 September 2004 respectively.
18. In 2004 the Ümraniye Magistrates' Court, upon the applicant's request, conducted an onsite inspection of the land. The appointed experts considered that the water pipelines in question were not laid underneath the applicant's plot but next to it.
19. In 2008 the Ümraniye Magistrates' Court, upon the ISKI's request, conducted another inspection of the land. The appointed experts considered that the water pipelines in question passed next to plot no. 13324, not underneath it.
20. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-23740
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: RUSSO and OTHERS v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants, Mr Alberto Russo, Mrs Carmela Russo, Mr Giancarlo Russo, Mrs Teresa Russo and Mrs Maria Russo are five Italian nationals. They are represented before the Court by Mr G. de Martino, a lawyer and justice of the peace (giudice di pace) practising in Sorrento (Naples).
The respondent Government were initrially represented by their Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and then by their co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are the owners of a flat in Sorrento, which they had let to C.S.
In a registered letter of 23 June 1987, the applicants informed the tenant that they intended to terminate the lease on expiry of the term on 31 December 1987 and asked her to vacate the premises by that date.
In a writ served on the tenant on 24 February 1988, the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Sorrento Magistrate.
By a decision (ordinanza) of 2 March 1988, which was immediately enforceable, the Sorrento Magistrate provisionally ordered that the premises be vacated by 30 June 1989 and adjourned the case to 5 October 1988 in order to examine the objections of the tenant.
At the hearing of 5 October 1988, the representative of the applicants requested that a date be set for a hearing so that he could make his submissions. The case was adjourned to 8 March 1989.
At the hearing of 8 March 1989, the representatives of the parties both requested that a date should be set for a hearing so that they could make their submissions. The case was adjourned to 24 January 1990.
At the hearing of 24 January 1990, the representatives of the parties both asked for time. The case was adjourned to 21 May 1990.
At the hearing of 21 May 1990, the representative of the tenant asked for time. The case was adjourned to 5 November 1990.
At the hearing of 5 November 1990, the representative of the parties both filed their submissions. The case was adjourned to 7 December 1990.
At the hearing of 7 December 1990, the representative of the applicant asked for time. The case was adjourned to 22 February 1991 when the Sorrento Magistrate considered the case to be ready for a decision.
By a decision of 30 May 1991, which was made enforceable on 12 December 1995, the Sorrento Magistrate upheld the validity of the notice to quit, declared that the decision (ordinanza) of 2 March 1988 was absorbed and ordered that the premises be vacated 12 months after the publication of the decision.
On 6 July 1992, the tenant appealed against this decision to the Torre Annunziata Tribunal.
By decision of 6 June 1995, filed with the registry on 12 June 1995, the Torre Annunziata Tribunal declared that it was not competent to examine the matter, following which the tenant resumed the proceedings before the Naples Tribunal.
On 13 December 1995, on the basis of the order for possession issued by the Sorrento Magistrate on 2 March 1988, the applicants served notice on the tenant requiring her to vacate the premises.
On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 27 February 1996.
On 5 February 1996, the tenant opposed the notice of 13 February 1995 before the magistrates’ court of Torre Annunziata on the ground that the decision of the Sorrento Magistrate of 30 May 1991 was not yet enforceable as the appeal against it was still pending.
On 31 May 1996, on the basis of the decision issued by the Sorrento Magistrate on 30 May 1991, the bailiff made an attempt to recover possession of the flat which proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
By a decision of 28 April 1997, filed with the registry on 2 May 1997, the Torre Annunziata Magistrate annulled the notice on the ground that the decision of the Sorrento Magistrate was not yet enforceable, since the proceedings were still pending on appeal.
Between 21 May 1997 and 30 April 1998, on the basis of the decision issued by the Sorrento Magistrate on 31 May 1991, the bailiff made three attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
By a decision of 16 February 2000, filed with the registry on 18 February 2000, the Naples Tribunal rejected the appeal of the tenant and confirmed the decision of the Sorrento Magistrate of 30 May 1991.
On 28 July 2000, on the basis of the decision issued by the Naples Tribunal on 16 February 2000, the applicants served notice on the tenant requiring her to vacate the premises.
On an unspecified date, they informed the tenant that the order for possession would be enforced by a bailiff on 19 September 2000.
On 15 September 2000, pursuant to section 6 of Law No. 431/98, the tenant asked the Torre Annunziata Tribunal to set a new date for the enforcement of the order for possession. The date was set for 25 January 2001.
On 19 September 2000, the bailiff made one attempt to recovered possession of the flat which proved unsuccessful as the applicants were not entitled to police assistance in enforcing the order for possession.
On 26 January 2001, the applicants recovered possession of the flat.


ITEMID: 001-94135
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF SCOPPOLA v. ITALY (No. 2)
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (lack of jurisdiction);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 7;Preliminary objection joined to the merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;András Sajó;Antonella Mularoni;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Vitaliano Esposito;Vladimiro Zagrebelsky
TEXT: 8. The applicant was born in 1940 and is at present imprisoned in Parma.
9. On 2 September 1999, after a fight with his two sons, the applicant killed his wife and injured one of his sons. He was arrested on 3 September.
10. At the end of the preliminary investigation the Rome prosecution service asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm
11. At a hearing on 18 February 2000 before the Rome preliminary hearings judge (giudice dell'udienza preliminare – “the GUP”) the applicant asked to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. In the version in force at that time Article 442 § 2 of the Code of Criminal Procedure (“the CCP”) provided that, if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years. (see paragraph 29 below).
12. The GUP agreed to follow the summary procedure. Further hearings were held on 22 September and 24 November 2000. The last-mentioned hearing began at 10.19 a.m.
13. On 24 November 2000 the GUP found the applicant guilty and noted that he was liable to a sentence of life imprisonment; however, as the applicant had elected to stand trial under the summary procedure, the judge sentenced him to a term of 30 years.
14. On 12 January 2001 the Public Prosecutor's Office at the Rome Court of Appeal appealed on points of law against the Rome GUP's judgment of 24 November 2000. The prosecution argued that the GUP should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which entered into force on the very day when the applicant was convicted. After being amended by parliament, Legislative Decree no. 341 was converted into Law no. 4 of 19 January 2001.
15. The prosecution contended in particular that Article 7 of Legislative Decree no. 341 had amended Article 442 of the CCP and now provided that, in the event of trial under the summary procedure, life imprisonment was to be substituted for life imprisonment with daytime isolation if there were “cumulative offences” (concorso di reati) or a “continuous offence” (reato continuato – see paragraph 31 below). The GUP's failure to apply Legislative Decree no. 341 amounted to “a manifest error of law” (evidente errore di diritto).
16. On 5 and 22 February 2001 the applicant appealed. His chief submission was that he should be acquitted on the ground that his conduct had not been intentional or that, at the time when the offences were committed, he was incapable of understanding the wrongful nature of his acts and of forming the intent to commit them (incapacità de intendere e volere). In the alternative, he requested a reduction of his sentence.
17. As there were now two appeals, at two different levels of jurisdiction, the Public Prosecutor's appeal on points of law was changed to an appeal on both facts and law and the Rome Assize Court of Appeal was declared to have jurisdiction to hear the case (Article 580 of the CCP).
18. The hearing in private before the Rome Assize Court of Appeal was held on 10 January 2002. The applicant was not present and was tried in absentia. He alleged that, as he had difficulty in walking, he had asked to be taken to the courtroom by ambulance or some other suitably adapted vehicle but that, as the prison management had refused his request, he had been deprived of the possibility of participating in the appeal proceedings.
19. In a judgment of 10 January 2002, deposited with the registry on 23 January 2002, the Assize Court of Appeal sentenced the applicant to life imprisonment.
20. It observed that before the entry into force of Legislative Decree no. 341 Article 442 § 2 of the CCP had been interpreted to mean that life imprisonment was to be replaced by a term of thirty years, whether or not it was to be accompanied by daytime isolation on account of an accumulation of offences with the most serious one. In following that approach, the GUP had fixed the sentence in relation to the most serious offence, without considering whether to order the applicant's daytime isolation on account of his conviction on the other charges against him.
21. However, Legislative Decree no. 341 of 24 November 2000 had entered into force on the very day of the GUP's decision. As its provisions were classed as procedural rules, it was applicable to pending proceedings, according to the tempus regit actum principle. The Assize Court of Appeal further observed that under the terms of Article 8 of Legislative Decree no. 341 the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure. As he had not done so, the first-instance decision ought to have taken account of the change in the rules on penalties which had taken place in the meantime.
22. On 18 February 2002 the applicant appealed on points of law. He argued in the first place that the appeal proceedings should be declared null and void because he had not been able to participate, as defendant, in the appeal hearing on 10 January 2002. In his second and third grounds of appeal the applicant asserted that the trial courts had not given sufficient reasons either for ruling that he had intended to commit murder or for their finding that he knew what he was doing and had acted intentionally when committing the offences. Lastly, he contested the finding of an aggravating circumstance (that he had acted for futile reasons) and complained of the refusal to grant him extenuating circumstances.
23. On 31 July 2002 the applicant submitted further grounds of appeal. He contended that a fresh expert opinion should have been produced on his mental state at the time when the offences were committed and presented new arguments on the question of aggravating and extenuating circumstances. Lastly, he submitted that the penalty deemed to be applicable in his case (life imprisonment with isolation) was excessive.
24. In a judgment deposited with its registry on 20 January 2003, the Court of Cassation dismissed the applicant's appeal.
25. On 18 July 2003 the applicant lodged an extraordinary appeal on the ground of a factual error (Article 625a of the CCP). He asserted in the first place that the domestic courts' finding that he could have been taken to the appeal hearing by an ordinary means of transport and did not need an ambulance had been the result of an erroneous reading of the documents in the file. In addition, his absence, as the defendant, from that hearing had breached Article 6 of the Convention. The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by Legislative Decree no. 341 of 2000, and thus through a retrospective criminal-law provision, had breached Article 7 of the Convention and the principles of fair trial. He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the State at the time when he made that choice. Lastly, he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to Article 3 of the Convention.
26. In a judgment of 14 May 2004, deposited with its registry on 28 October 2004, the Court of Cassation declared the applicant's extraordinary appeal inadmissible. It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge the Court of Cassation's assessment on points of law.
27. The summary procedure is governed by Articles 438 and 441 to 443 of the CCP. It is based on the assumption that the case can be decided as the file stands (allo stato degli atti) at the preliminary hearing. A request to be tried under the summary procedure may be made orally or in writing at any time before the parties have made their submissions at the preliminary hearing. If the summary procedure is followed, the hearing takes place in private and is given over to the parties' oral submissions; in principle, they must base their arguments on the documents included in the prosecution's file, even though, exceptionally, oral evidence may be allowed. If the judge finds the defendant guilty, the sentence imposed is reduced by one-third (Article 442 § 2). The relevant domestic provisions are described in the Hermi v. Italy judgment ([GC], no. 18114/02, §§ 27-28, ECHR 2006-...).
28. The Court also gave an overview of the provisions governing the summary procedure in its Fera v. Italy judgment (no. 45057/98, 21 April 2005). At the time of the events which gave rise to the Fera case the summary procedure was not available to persons accused of crimes punishable by life imprisonment. In judgment no. 176 of 23 April 1991 the Constitutional Court had quashed the provision of the Code of Criminal Procedure making that possibility available because it went beyond the powers parliament had delegated to the government with a view to the adoption of the new Code of Criminal Procedure (“the CCP”).
29. By Law no. 479 of 16 December 1999, which came into force on 2 January 2000, parliament reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to opt for the summary procedure. Section 30 provides:
Section 30
“The following changes shall be made to Article 442 of the Code of Criminal Procedure:
...
(b) in paragraph 2, after the first sentence is added the following [second and last sentence]: 'life imprisonment shall be replaced by thirty years' imprisonment'”.
30. Legislative Decree no. 341 of 24 November 2000, which came into force on the same day and was converted into Law no. 4 of 19 January 2001, purported to give an authentic interpretation of the second sentence of paragraph 2 of Article 442 of the CCP and added a third sentence.
31. Legislative Decree no. 341 included, under the chapter entitled “Authentic interpretation of Article 442 paragraph 2 of the Code of Criminal Procedure and provisions regarding the summary procedure in trials for offences punishable by life imprisonment”, Articles 7 and 8, which provide:
Article 7
“1. In Article 442, paragraph 2, [second and] last sentence, of the Code of Criminal Procedure, the words 'life imprisonment' should be taken to mean life imprisonment without daytime isolation.
2. In Article 442, paragraph 2, of the Code of Criminal Procedure is added, in fine, the following sentence: “Life imprisonment with daytime isolation, in the event of cumulative offences or a continuous offence, shall be replaced by life imprisonment.”
Article 8
“1. In criminal proceedings pending on the date of the entry into force of the present legislative decree, where the defendant is liable to or has been sentenced to life imprisonment with daytime isolation, and has opted for the summary procedure ..., he or she may withdraw his or her request within thirty days of the date on which the legislation implementing the present legislative decree enters into force. In that case, the proceedings shall be resumed under the ordinary procedure at the stage they had reached when the request was made. Any investigative findings which may have been reached may be used within the limits laid down by Article 511 of the Code of Criminal Procedure.
2. Where, on account of an appeal by the prosecution, it is possible to apply the provisions of Article 7, the accused may withdraw the request referred to in paragraph 1 within thirty days of the time when he or she learns of the appeal by the prosecution or, if such an appeal was lodged before the entry into force of the legislation to implement the present legislative decree, within thirty days' of the latter date. The provisions of the second and third sentences of paragraph 1 shall apply...”
32. Article 2 of the 1930 Criminal Code, entitled “Succession of criminal laws”, reads as follows:
“1. No one may be punished for an act which, under the law in force at the time when it was committed, was not an offence.
2. No one may be punished for an act which, under a subsequent law, does not constitute an offence; if the defendant has been sentenced, execution of his sentence and its criminal effects shall cease.
3. If the law in force at the time when the offence was committed and later [laws] differ, the law to be applied is the one whose provisions are most favourable to the defendant, except where a final sentence has already been imposed.
4. The provisions of the [two] preceding paragraphs shall not apply when the later laws are exceptional and temporary.
5. The provisions of the present article shall also apply where a legislative decree's conversion into statute-law is time barred [decadenza] or does not take place, and where a legislative decree has been converted into statute-law with amendments.”
33. Royal Decree no. 1252 of 7 June 1923 provides that the Official Gazette (Gazzetta ufficiale) is published by the Ministry of Justice. Article 2 of the decree reads as follows:
“Publication shall take place every working day during the hours of the afternoon (nelle ore pomeridiane).”
34. By judgment no. 132 of 19 May 1976 the Constitutional Court ruled that publication of a law in the Official Gazette was the “essential and decisive moment” among the steps taken to promulgate a legislative text. Moreover, the expression “publication in the Official Gazette” presupposed that the latter was placed in circulation and therefore accessible to the public. The Constitutional Court observed in particular: “[the terms] publication of laws 'in the' Official Gazette [could] only mean ... also publication 'of the' Official Gazette ...: otherwise there would be a negation of the very procedure of publishing laws, which, historically speaking, was designed to create an objective situation effectively permitting every individual to be aware of the acts in question (situazione oggettiva di effettiva conoscibilità, da parte di tutti, degli atti medesimi).”
35. Article 15 of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, which entered into force on 23 March 1976, is worded as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”
36. Article 9 of the American Convention on Human Rights, which was adopted on 22 November 1969 at the Inter-American Specialised Conference on Human Rights and came into force on 18 July 1978, reads as follows:
“No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”
37. At the European Council meeting in Nice on 7 December 2000 the European Commission, the European Parliament and the Council of the European Union proclaimed the Charter of Fundamental Rights of the European Union. Article 49 of the Charter, entitled “Principles of legality and proportionality of criminal offences and penalties” is worded as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.
3. The severity of penalties must not be disproportionate to the criminal offence.”
38. In the case of Berlusconi and Others, the Court of Justice of the European Communities held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the member States (see the judgment of 3 May 2005 in joined cases C-387/02, C-391/02 and C-403/02). The relevant passages of the judgment (§§ 66 to 69) read as follows:
“66. Setting aside the applicability of Article 6 of the First Companies Directive to the failure to publish annual accounts, it should be noted that, under Article 2 of the Italian Criminal Code, which sets out the principle that the more lenient penalty should be applied retroactively, the new Articles 2621 and 2622 of the Italian Civil Code ought to be applied even if they entered into force only after the commission of the acts underlying the prosecutions brought in the cases in the main proceedings.
67. It must be pointed out in this regard that, according to settled case-law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, inter alia, Case C 112/00 Schmidberger [2003] ECR I 5659, paragraph 71 and the case-law there cited, and Joined Cases C 20/00 and C 64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I 7411, paragraph 65 and the case-law there cited).
68. The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member States.
69. It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and, more particularly in the present cases, the directives on company law.”
39. The principles affirmed by the Court of Justice were repeated in a judgment of the Criminal Division of the French Court of Cassation given on 19 September 2007 (dismissal of appeal no. 06-85899). The relevant passages of the judgment read as follows:
“... in any event the general principles of Community law take precedence over national law. In a judgment of 3 May 2005 the Court of Justice of the European Communities observed that the principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the member States and it follows that the said principle must be considered one of the general principles of Community law which national courts must comply with when applying the national law adopted with a view to implementing Community law (paragraphs 68 and 69 of the judgment of 3 May 2005). In the present case, consequently, it was in breach of that principle taking precedence over national law that the Paris Court of Appeal sentenced [the accused] on the basis of a national law adopted with a view to implementing Community law, having unlawfully disregarded the principle of the retroactive application of the more lenient penalty.
... Article 15 of the International Covenant on Civil and Political Rights provides, without any exception, that where, subsequent to the commission of an offence, the law provides for the application of a more lenient penalty, the offender must be given the benefit thereof. That text takes precedence over French law by virtue of Article 55 of the Constitution of 4 October 1958. It follows that the Paris Court of Appeal could not disregard the new more lenient law on the sole ground that the later law had expressly excluded any retroactive effect in contravention of the principle laid down by the text referred to above. ...”
40. Under the terms of Article 24 § 2 of the Statute of the International Criminal Court,
“In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.”
41. In a judgment of 4 February 2005, given in the Dragan Nikolic case (no. IT-94-2-A), the Appeals Chamber of the ICTY held that the principle of the applicability of the more lenient criminal law (lex mitior) applied to its statute. The relevant parts of the judgment (§§ 79 to 86) read as follows:
“79. The Trial Chamber first considered whether the principle of lex mitior had been applicable in the former Yugoslavia and whether it was part of the law of the International Tribunal and then addressed the question of whether the lex mitior principle was applicable in the present case.
80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction” and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply. The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal.
81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide.
82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person's life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges.
83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment.
84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia. It has merely to take it into consideration. Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal's judges. In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal's statute, States could then prevent their citizens from being properly sentenced by this Tribunal. This is not compatible with the International Tribunal's primacy enshrined in Article 9(2) of the Statute and its overall mandate.
85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported.
86. For the foregoing reasons, the fifth ground of appeal is dismissed.”
VIOLATED_ARTICLES: 6
7