ITEMID: 001-102791
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: JUREK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Ryszard Jurek, is a Polish national who was born in 1958 and lives in Rupniów, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 June 2005 at 9.25 p.m. the applicant was arrested by the police in his hometown, Dobczyce. He was taken to Myślenice and from there, upon the order of a prosecutor, to a jail (izba zatrzymań) in Cracow.
On 22 June 2005 at 5 p.m. the prosecutor lodged with the court his application to remand the applicant in custody for three months. The applicant was placed under the authority of a court (przekazany do dyspozycji sądu).
On 23 June 2005 at about 2 p.m. the applicant was brought before a judge of the Myślenice District Court (Sąd Rejonowy) who decided to remand him in custody.
Subsequently, the applicant’s pre-trial detention was extended by numerous court decisions.
On 9 June 2006 the applicant filed with the Cracow Regional Court a claim for compensation for unlawful detention between 20 and 23 June 2005.
On 1 December 2006 the Cracow Regional Court dismissed the applicant’s claim.
The applicant did not appeal against that judgment.
On 22 June 2005 the applicant was charged with the rape of a certain M.R., a minor daughter of his partner.
On 19 October 2005 he was, in addition, charged with sexual abuse of M.R. and her minor sister S.R. and with psychological abuse of both M.R. and S.R.
On 30 September 2005 the Myślenice District Court assigned a lawyer under the legal-aid scheme to represent the applicant in the criminal proceedings. On 31 October 2005 the applicant was indicted on charges of sexual abuse and rape of M.R., sexual abuse of S.R. and psychological abuse of both M.R. and S.R.
On 15 December 2005 the Myślenice District Court convicted him as charged and sentenced him to four and a half years’ imprisonment.
The applicant’s lawyer appealed, arguing that the court had erred in its assessment of the facts.
On 8 June 2006 the Cracow Regional Court upheld the first-instance judgment in the relevant part.
The applicant did not lodge a cassation appeal. However, he asked the Prosecutor General (Prokurator Generalny) to do so on his behalf.
By a letter of 27 December 2006 the Prosecutor General informed the applicant that he had not found any grounds to lodge a cassation appeal in the applicant’s case.
From 20 June 2005 until 19 December 2009 the applicant was in continuous detention. On the latter date he was released.
From 23 June 2005 until 24 August 2006 the applicant was detained in Wadowice Prison.
The applicant submitted that he had been held in dark and overcrowded cells without any access to hot water. On one occasion he shared a six square-metre cell with three or four other detainees.
The Government did not provide details as to the size and occupancy rate in the applicant’s cells during his initial detention. They submitted, however, that from 12 June until 24 August 2006 the applicant had been placed in cells in which the space per prisoner ranged from 2.26 to 3 m². It was also noted that the sanitary conditions in the applicant’s cells had occasionally been below the standard required by the sanitary inspectorate. Lastly, the Government submitted that the applicant had been afforded adequate medical care in Wadowice Prison.
From 24 August 2006 until 30 November 2007 the applicant was detained in Nowy Sącz Prison.
He submitted that he had been held in an overcrowded cell without any access to hot water. He shared a 27 m² cell with eleven inmates. The medical care provided to prisoners was inadequate. In this connection the applicant submitted that he suffered from ulcers and that his eye sight had deteriorated in prison because of the overall poor conditions and inadequate medical care and the fact that he was not taking the medicine which he had been prescribed when he was at liberty.
The applicant also submitted that the prison management had confiscated his tape player for no reason. As a result he could not continue his audio English lessons.
The Government submitted that in Nowy Sącz Prison the applicant had been placed in cells in which the space per prisoner for the most part ranged from 2.2 to 2.8 m². For a total of three weeks the statutory minimum standard of 3 m² had been respected in the applicant’s cells. Moreover, the Government submitted that during his stay in Nowy Sącz the applicant had been examined by doctors on over thirty occasions, which proved that the medical care provided in prison had been sufficient.
On 30 November 2007 the applicant was committed to Tarnów Mościce Prison.
In the applicant’s submission, the living and sanitary conditions in the prison were inadequate. The cells were overcrowded and dirty.
From 29 February until 12 March 2008 the applicant was detained in cell no. 6 in wing I. The cell in question was designed for five prisoners but instead was shared by ten prisoners. There was not enough room at the table and many inmates had their meals standing up or sitting on a stool. In the applicant’s wing there were no toilets inside the cells. Instead, there were four toilet cubicles and four urinals accessible from the corridor. They were shared by over 160 prisoners.
The applicant also submitted that the medical care in Tarnów Mościce Prison was insufficient. There was a practice of mixing healthy and ill prisoners and medical treatment offered in the event of sickness was inadequate. Many prisoners suffered from sepsis. The applicant submitted that his 35-year old cellmate had died on 11 March 2008 of that disease and that afterwards, the applicant and his fellow inmates had been administered preventive drugs.
After numerous complaints to the prison management, in March 2008 the applicant was transferred to wing IV.
From 27 May until 23 June 2008 the applicant was detained in Nowy Wiśnicz Prison.
The applicant submitted that his cell in Nowy Wiśnicz Prison had been occupied by five prisoners, including the applicant, even though its designated maximum capacity was for three persons.
From 23 June until 22 July 2008 the applicant was detained in Cracow Remand Centre.
The applicant submitted that he had initially been committed to cell no. 315, which was a single cell. He shared it with another inmate. On 30 June 2005 he was placed in cell no. 343 which was designed for two people. The applicant shared it with four other prisoners.
From 22 July 2008 until 19 December 2009 the applicant was detained in the therapeutic wing of Rzeszów Prison.
The applicant submitted that in Rzeszów Prison he had been assigned to cell no. 239, which he shared with three other prisoners.
The applicant lodged numerous complaints with State authorities about various aspects of his detention. They were to no avail.
By a letter of 31 March 2006 the Director of the Cracow Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) informed the applicant that his allegations that the staff of the Wadowice Prison had monitored the contents of the letters by his family, the Ombudsman and State authorities, had been found to be without merit. It was noted that the letters in question had admittedly been opened and monitored, but only by the authorities responsible for overseeing the applicant’s pre-trial detention. It was emphasised that such a procedure was in compliance with the domestic law and was necessary to ensure the proper conduct of the criminal proceedings pending against the applicant.
By a letter of 26 July 2007 the Director of the Cracow Regional Inspectorate of the Prison Service informed the applicant that his complaint about the allegedly inadequate medical care in Nowy Sącz Prison had been considered ill-founded.
The applicant also complained to the management of Tarnów Mościce Prison. He also wrote to the Minister of Health and Sanitary Inspectorate to complain of the overall poor sanitary conditions in prison. It appears that on an unspecified date a Sanitary Inspector fined Tarnów Mościce Prison and ordered the renovation of the toilets.
The applicant did not bring a civil action in tort to seek compensation for the alleged infringement of his personal rights.


ITEMID: 001-23116
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SIJAKOVA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Mrs Margarita Šijakova, Mrs Nada Elenova, Mrs Vladanka Risteska, Mrs Slobodanka Dimeska and Mrs Lila Štosic, are Macedonian nationals who were born in 1922, 1944, 1951, 1947 and 1947 respectively. The second applicant lives in Kavadarci, whereas the others live in Skopje, both in the Former Yugoslav Republic of Macedonia. They are represented before the Court by Mrs Margarita Šijakova, one of the applicants, a retired lawyer from Skopje.
The applicants’ children, after attaining 18 years of age, joined the monastic order of the Macedonian Orthodox Church. The applicants admit that they themselves are practising Orthodox Christians. They allege that some of their children left their homes and joined the monastic order without the applicants’ prior knowledge or consent.
In 1998 the applicants lodged a complaint before the Constitutional Court (Уставен суд на Република Македонија), requesting it to assess the constitutionality of the internal rules of the Church (Устав на Македонската Православна Црква), in particular Rules 133, 171 and 173. In their submissions the applicants complained, inter alia, that they had been deprived of their rights as parents to receive proper care from their children in the event of illness or in old age because the religious canons allegedly forbade contacts between monks and their parents. Furthermore, they argued that the Church could not establish monasteries as another form of “life community” because the only such form recognised and protected by the Constitution was the “family”. They argued that the Church, in claiming ownership of monasteries, which were defined as life communities in its internal rules, was thereby asserting ownership of human beings, so that their children could be regarded as being held in slavery. They further alleged that their children had been deprived of many of their fundamental human rights and freedoms as a result of the monastic canons and the vows they had taken before entering the monasteries.
On 17 May 2000 the Constitutional Court rejected the applicants’ complaint on the ground of lack of jurisdiction to review the constitutionality of the Church’s internal rules. In its decision, it referred to and summarised the most relevant provisions of the Church’s internal rules and quoted the impugned provisions.
In particular, Rule 133 reads as follows:
“The monastery is a holy place having a temple and other necessary facilities, i.e. [it is] a life community of persons belonging to the monastic order who have joined together in a spiritual community and have taken a holy vow to live in accordance with the monastic canons.”
Rule 171 provides inter alia:
“All the possessions of the Macedonian Orthodox Church, bishoprics, church communities and monasteries comprise the property of the Macedonian Orthodox Church.”
Rule 173 § 1 reads as follows:
“All churches, monasteries, ... - holy waters, cemeteries and places of Orthodox worship, and their movable and immovable assets which are under the canonical and spiritual jurisdiction of the Macedonian Orthodox Church are the property of the Macedonian Orthodox Church.”
The Constitutional Court reiterated the constitutional guarantee of freedom of religion, and the right of every individual to express his or her faith and religious beliefs freely and publicly, either alone or in community with others. It stated that this freedom entailed the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion. It further held that the manner in which an individual manifested his or her religious convictions or beliefs was a matter of private conscience, which ultimately determined the relationship between religious communities and the State. In that connection, the Constitutional Court observed that the Macedonian Orthodox Church and other religious communities and groups were separate from the State and were equal before the law, and none of them could have a distinct and privileged position or be controlled by the State.
The Constitutional Court further held that the Church and other religious communities or groups could not be regarded as institutional and formal associations of their adherents and that they had not been established pursuant to the provisions of the Law on Citizens’ Associations and Foundations. It therefore concluded that their internal rules were not a matter for constitutional review, as was the case with political parties, other associations and foundations whose programmes and internal regulations and their compliance with the Constitution might be assessed by the court.
On an unspecified date, most probably in 1999, the applicants lodged a criminal complaint (кривична пријава) with the Strumica Public Prosecutor’s Office (Основно јавно обвинителство Струмица), requesting it to institute criminal proceedings against the Bishop of Strumica, who had allegedly held their children in slavery, and had thus committed the criminal offence defined in Section 418 of the Criminal Code. Up to the time when the application was lodged the applicants had received no information about the outcome of the investigations by the competent authorities.
Article 19 of the Constitution (Устав на Република Македонија) provides that the freedom of religious confession is guaranteed. The right to express one’s faith freely and publicly, individually or with others is guaranteed. The Macedonian Orthodox Church and other religious communities and groups are separate from the State and equal before the law. They are free to establish schools and other social and charitable institutions, by means of a procedure regulated by law.
Article 40 § 3 of the Constitution provides that parents have the right and duty to provide for the nurture and education of their children. Children are responsible for the care of their old and infirm parents.
Article 110, which defines the jurisdiction of the Constitutional Court provides, inter alia, that it safeguards the freedoms and rights of the individual and citizen relating to freedom of communication, conscience, thought and public expression of thought, political association and activities as well as the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social and political affiliation.
This provision also specifies that the Constitutional Court decides on the constitutionality of the programmes and internal regulations of political parties and associations of citizens.
Rule 51 of the Rules of Procedure of the Constitutional Court (Деловник на Уставниот суд) provides that a person who considers that any of his rights or freedoms set forth in Article 110 of the Constitution has been violated by an individual legal act or decision may seek redress before the Constitutional Court within 2 months from the day of adoption of the final individual decision or from the day when he first learns of the action taken, but no later than 5 years from the day of its occurrence.
Section 418 of the Criminal Code (Кривичен законик) provides that whoever, in violation of international law, places another person in slavery or in a similar status or keeps him in such a status; buys or sells another person or hands him over to another person; mediates in the purchase, sale and handing over of such a person; or induces someone else to sell his freedom or the freedom of the person he provides for or takes care of shall be punished by from one to ten years’ imprisonment.


ITEMID: 001-76859
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: CEYLAN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Bahri Ceylan, is a Turkish national who was born in 1962. He was represented before the Court by Mr S. Çetinkaya, a lawyer practising in İzmir.
On 18 February 1999 the applicant was arrested and taken into custody by the Bursa police in connection with an investigation into the activities of the PKK (Partiya Karkerên Kurdistan – Workers’ Party of Kurdistan). He was transferred immediately to the premises of the Antalya security police, the authority in charge of the investigation. He was questioned until 23 February 1999, when he signed a statement and admitted carrying out activities within the organisation in question.
On the same day the applicant was interviewed by the Antalya public prosecutor and subsequently by a magistrate, partly confirming on both occasions the statements he had made to the police. The magistrate made an order for the applicant’s pre-trial detention. He was accordingly transferred to Nazilli E-type Prison in the Aydın district.
On 11 March 1999 the public prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) charged the applicant and six others with being a member of and assisting the PKK. He sought the application of Articles 168 and 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).
On 12 March 1999 the trial began in the National Security Court in the case, registered as no. 1999/74. The first hearing was devoted to purely procedural matters.
The second hearing was held on 22 April 1999 in the absence of the defendants – including the applicant – who had informed the court in writing that they would not be appearing in protest against the arrest of Mr A. Öcalan, the PKK leader. However, the applicant’s counsel, Mr Çetinkaya, submitted that his client had acted against his will out of solidarity with his fellow detainees. The trial judges confined themselves to reading out the indictment and checking that the lawyers present had been duly authorised.
At a hearing on 8 June 1999 in case no. 1999/74 the applicant and his counsel lodged defence pleadings which were read out and added to the file. The judges then asked the defendants to comment on the various statements taken during the preliminary investigation. The applicant said that he confirmed only the statements he had made in the context of his defence pleadings.
Having regard to all these considerations, the judges decided to join the case in question to case no. 1998/284, which was pending before the same bench.
Later that day the National Security Court resumed its examination of the joined case no. 1998/284. The applicant again appeared with his counsel.
At that hearing, in which a military judge took part, the National Security Court took note of the joinder of case no. 1999/74 and of the contents of the file in that case. The judges subsequently informed the new defendants of all the procedural steps taken previously and read out the documents in the file to the parties, including earlier statements by some of the applicant’s fellow defendants implicating him.
The applicant and his counsel challenged all the prosecution evidence in case no. 1999/74, including the statements in question, and, as to the merits, submitted their written pleadings, requesting the judges to endorse them. The pleadings were added to the file. No other decisive steps were taken that day.
On 18 June 1999 Article 143 of the Constitution was amended with the effect that military judges were barred from sitting as members of national security courts. Further to the consequent amendments made to the National Security Courts Act on 22 June 1999, the military judge on the bench of the İzmir National Security Court was replaced by a civilian judge.
The first hearing in which the new judge took part was held on 29 July 1999 and was attended by the applicant and his counsel. It began with the reading out of all the records of the previous hearings. As Mr Çetinkaya stated that he had nothing to add at that stage of the proceedings, no steps were taken in respect of the applicant. The next hearing was scheduled for 21 September 1999.
On 14 December 1999 the National Security Court found the applicant guilty of being a member of the PKK and sentenced him to twelve years and six months’ imprisonment. It held that although he had retracted all the statements which the police and the public prosecutor had taken from him, the confessions resulting from his pleadings filed on 8 June 1999 were sufficient to establish that he had indeed been a member of the PKK.
The applicant appealed on points of law. In a judgment of 27 November 2000 the Court of Cassation upheld the impugned judgment.
Before 22 June 1999 section 5 of Law no. 2845 provided that one of the three judges sitting in national security courts had to be a military judge (for the legislation in force at the time, see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, pp. 1557-60, §§ 2629).
Following the entry into force of Law no. 4390 on the above-mentioned date, military judges were no longer allowed to sit in the national security courts, which were eventually abolished by Law no. 5190 of 16 June 2004.


ITEMID: 001-99852
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VLADIMIR KRIVONOSOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 13;Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13;No violation of Art. 3;No violation of Art. 5-1
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1968 and lives in Taganrog, the Rostov Region.
5. On 18 December 1998 the applicant was arrested and allegedly beaten up by the police officers. On the same day he was remanded in custody on suspicion of robbery.
6. On 21 December 1998 the charges were brought against the applicant and he was provided with a legal-aid counsel.
7. On 14 March 2000 the applicant was released on a written undertaking not to leave the town.
8. On 13 June 2000 the Rostov Regional Court convicted the applicant of robbery and imposed a suspended sentence of five years' imprisonment on him. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial.
9. On 14 May 2001 the Rostov Regional Court convicted the applicant of fraud, kidnapping, illegal deprivation of liberty, extortion, burglary and theft and sentenced him to seven years and six months' imprisonment. The applicant was taken straight from the courtroom to the detention unit.
10. On 16 January 2002 the Supreme Court of Russia quashed the judgment of 14 May 2001 on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”.
11. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”.
12. On 1 July 2002 the Rostov Regional Court extended the applicant's detention until 1 October 2002.
“The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes.
They have been in custody: ..., [the applicant] – since 18 December 1998, ...
The Prosecutor requested that the defendants' detention be extended by 3 months.
Having examined the Prosecutor's request, and having heard the parties to the proceedings, the court considers it necessary to extend the defendants' detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences.
Under Articles 255 and 256 of the Russian Code of Criminal Procedure, the defendants' detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.”
13. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified.
14. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant's detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the decisions was identical to that applied in the decision of 1 July 2002.
15. The applicant appealed against each of the above-mentioned extension orders of the Supreme Court arguing that they were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above-mentioned decisions on appeal.
16. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant's detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court.
17. On 10 March 2005, that is, after the applicant's conviction by the Regional Court (see paragraph 19 below), the Supreme Court of Russia discontinued the examination of the applicant's appeal because he had been convicted in the meantime by the Regional Court.
18. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on over fifty occasions: at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; at the requests of the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; owing to the illness of the representatives and their failure to appear before the court; and owing to the illness of the co-defendants or following their complaints concerning their health. On one occasion the hearing was adjourned on account of the failure of the authorities to transport the defendants to the courtroom.
19. On 17 May 2004 the Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., found the applicant guilty of multiple counts of fraud, kidnapping, illegal deprivation of liberty, extortion, theft and burglary and sentenced him to six years' imprisonment.
20. The applicant lodged an appeal. He claimed, inter alia, that the lay judges had sat on the bench unlawfully. The law had been changed and after 1 January 2004 lay judges were no longer permitted to take part in the administration of justice.
21. On 10 March 2005 the Supreme Court of Russia, sitting as a bench of three judges, reduced the applicant's sentence to five years' imprisonment and upheld the rest of the judgment on appeal. One of the judges of the Supreme Court had previously examined the applicant's case on appeal on 2 November 2000 (see paragraph 8 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant's detention until 26 September 2003 (see paragraphs 14-15 above). One other judge had previously examined the applicant's case on appeal on 16 January 2002 (see paragraph 10 above). As to the applicant's allegation that the composition of the tribunal was unlawful, the court found that the trial had begun before 1 January 2004 and that the participation of two lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial.
22. From 25 May to 8 December 2001 and from 11 February 2002 to 23 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in the following cells:
(a) cell no. 21 measuring 54.5 square metres and designed to accommodate 13-16 detainees;
(b) cell no. 46 measuring 59.6 square metres and designed to accommodate 13-16 detainees;
(c) cell no. 48 measuring 54.2 square metres and designed to accommodate 10-15 detainees;
(d) cell no. 57 measuring 68.4 square metres and designed to accommodate 16-18 detainees;
(e) cell no. 90 measuring 58.2 square metres and designed to accommodate 16-18 detainees;
(f) cell no. 92 measuring 46.2 square metres and designed to accommodate 12-14 detainees;
(g) cell no. 109 measuring 54.2 square metres and designed to accommodate 11-14 detainees;
(h) cell no. 114 measuring 44.5 square metres and designed to accommodate 10-12 detainees; and
(i) cell no. 84 (punishment cell) measuring 6.6 square metres and designed for one person.
23. The Government were unable to provide any precise information on the number of persons detained together with the applicant, because the relevant documents had been destroyed following the expiration of the time-limit for storing them. They submitted, however, that the design capacity of the cells had not been exceeded.
24. In each cell the applicant had an individual bed and was provided with bedding (two bed sheets, a pillowslip, a blanket, a mattress and a pillow) and tableware (a cup, a spoon and a plate).
25. The dimensions, number and location of the windows in the cells corresponded to the established legal norms and allowed sufficient access of daylight. Until December 2002 the windows were covered with metal screens (жалюзийные решетки) installed to prevent communication between cells.
26. The cells were illuminated with 60-75 watt filament lamps (four lamps per regular cell, one lamp per punishment cell), which were on from 6 a.m. to 10 p.m. At night-time the cells were lit by 60-75 watt security lights with tinted glass shades.
27. All cells were ventilated by a system of exhaust ventilation. Natural ventilation through windows was also available.
28. The cells were equipped with potable water tanks, cupboards for storage of foodstuffs, lavatory pans separated from the main area of the cells by partitions, water taps, dining tables and benches corresponding to the number of detainees, radio receivers, electric plugs and ventilation equipment.
29. The food was served three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility.
30. The applicant was allowed a daily one-hour outside walk in a specially equipped exercise yard.
31. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 7 November 2008 and statements by prison wardens (although not dated). They also submitted documents attesting to the destruction of registration logs in respect of the cells in IZ-61/1 (журналы покамерного размещения) for the years 20012003 following the expiry of the three-year time-limit for storing them.
32. The applicant claimed that the number of detainees exceeded the design capacity of the cells by three to five times and that the detainees had to sleep in shifts.
33. Most cells where the applicant was detained were equipped with a small window. Access to daylight was restricted by metal screens and the arrangement of the bunks in two or three tiers.
34. The electric lighting was too dim to enable the inmates to read.
35. The ventilation system did not function most of the time.
36. The bedding was hardly ever changed; no tableware, toilet paper or personal hygiene items were provided to the applicant.
37. The food was scarce and of poor quality. It was always poorly presented.
38. The exercise yards were unequipped and too small to accommodate all the detainees properly.
39. In support of his statements the applicant produced written depositions by four former cellmates who had been detained with him in different cells between 2001 and 2005. In particular, Mr B. stated that he had been detained with the applicant in cell no. 90. The population of the cell had exceeded its design capacity by three to five times. Mr G. stated that he had been detained with the applicant in cell no. 109, which accommodated from 22 to 46 detainees at any one time. Mr F. stated that he had been detained with the applicant in cell no. 109 in a later period. The cell used to accommodate up to 105 detainees. Finally, Mr V. submitted that he had been detained with the applicant in cell no. 114, which accommodated from 25 to 40 detainees. All of the above-mentioned witnesses testified that they and the other detainees had slept in shifts. They further testified to the appalling sanitary conditions in the cells, poor access to daylight, inadequate electric lighting, absence of natural ventilation and malfunctioning of the artificial ventilation system. The applicant further submitted a photograph of cell no. 114, taken on an unspecified date in 2004, in support of the above-mentioned statements.
40. The Government submitted that the detention unit (конвойное помещение) of the Rostov Regional Court is situated in the semi-basement of the premises. It has eight individual cells measuring 1-1.5 square metres and three collective cells measuring six, ten and twelve square metres and designed for two, six and eight detainees respectively. The detention unit is equipped with two lavatory pans and wash stands (one for detainees and one for those escorting them). All cells are equipped with benches, artificial ventilation and central heating. The cells are illuminated with filament lamps. The detainees are provided with dry rations (сухой паек) when taken to the courthouse. They receive hot food in accordance with the schedule before their departure from, and after their return to, the detention facility.
41. The Government supported their submissions with the results of an inspection of the technical equipment of the premises of the Rostov Regional Court of 21 March 2008, a certificate issued by the director of IZ61/1 on 7 November 2008, the results of an inspection of the detention unit of the Rostov Regional Court of 12 November 2008 and recent photographs of the inspected premises (photocopies).
42. The applicant submitted that between 2001 and 2004 he had been transported between the Rostov Regional Court and the detention facility on over one hundred and seventy-five occasions.
43. The journey to and from the courthouse took several hours.
44. At the courthouse the applicant was detained in a small windowless cell without ventilation or heating. The cell was not equipped with a lavatory or a wash stand.
45. No food was provided to the applicant at the courthouse.
46. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (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”).
47. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP).
48. 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 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).
49. 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 reoffend (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).
50. Before 14 March 2001, detention 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 had 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.
51. The Codes distinguished between two types of detention: 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.
52. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but 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).
53. 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).
54. Access to the case-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.
55. 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).
56. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “before the court” (or “during the trial”).
57. 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 a particularly serious criminal offence.
58. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file 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).
59. Under the old CCrP, the detainee or his or her counsel or representative could challenge a 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 66 below) (Article 331 in fine).
60. 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 of its receipt (Article 108 § 10).
61. 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).
62. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (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 of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
63. 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 66 below).
64. Under the old CCrP, within fourteen days of 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 with 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.
65. The duration of the trial is not limited.
66. 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).
67. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15).
68. The new CCrP does not provide for the participation of lay judges in the administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)).
It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1).
69. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows:
Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004.
Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing.
70. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
71. On 4 May 2001 the Ministry of Justice adopted the Rules on food supplies for convicts and persons detained in remand centres. According to Annex no. 3 to the Rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicts on their way to a prison, a remand centre or colony; persons released from custody on the way to their place of residence; persons for the duration of their stay in patient care institutions; and convicted juveniles. The Rules were amended in 2004 and repealed in 2005.
72. On 4 February 2004 the Ministry of Justice adopted the Rules on supplies of dry rations, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, precooked first and second courses, sugar, tea and tableware) during their presence at a courthouse. Detainees should be supplied with hot water with which to consume the ration.
73. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 sq. m. It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO no. 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony no. 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private 'because they know that all complaints usually pass through the colony's administration'.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-85871
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FOSTER  v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Colin Foster, is a British national who was born in 1943 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 3 September 2000. They had no children from the marriage. On 1 May 2001, the applicant made a claim for widows’ benefits under the new system in place as from 9 April 2001. On 12 June 2001 the applicant was informed that his claim had been disallowed as he was not entitled to the benefits at issue because his wife had died before 9 April 2001. On 25 June 2001 the applicant made a request for reconsideration. On 7 September 2001 his claim was reconsidered but the decision remained unchanged. On an unspecified date the applicant appealed. On 12 December 2001 the appeal tribunal confirmed the previous decision.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-69305
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: CZERBINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jan Czerbiński, was born in 1962. He has two nationalities: Polish and German. He lives in Gliwice, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 a cheque drawn on the applicant's closed account was cashed in a Polish bank. Subsequently, the police started to investigate the case and interviewed the applicant.
In 1998 the applicant moved to Germany.
In February 1999 the police summoned the applicant, however, the summons was returned undelivered as the applicant had moved.
On 2 June 1999 the prosecution service filed with the Zgorzelec District Court (Sąd Rejonowy) a bill of indictment against the applicant. He was charged with drawing and cashing the cheque on 30 November 1994.
On 29 June 1999 a hearing was held. The applicant, despite having been properly summoned, failed to attend it. The court was informed that the applicant did not live at the address provided by him.
On 1 July 1999 the Zgorzelec District Court ordered that the applicant be detained on remand for a period of two months. The decision was reasoned as follows:
“The pre-trial detention is justified by Article 258 § 1 (2) of the Code of Criminal Procedure since the accused is avoiding the criminal justice system.”
On 1 July 1999 a “wanted” notice was issued concerning the applicant.
On 19 March 2003 the applicant was taken into custody by the Polish police while crossing the German-Polish border.
On 20 and 28 March 2003 the District Courts in Gliwice and Kędzierzyn-Koźle decided that the applicant should be remanded in custody in connection with three other criminal proceedings pending against him.
The applicant appealed against the decision of 1 July 1999 ordering his pretrial detention but his appeal was dismissed on 10 April 2003 by the Jelenia Góra Regional Court (Sąd Okręgowy). The court gave the following reasons for its decision:
“Among the complaints made in the appeal only one, concerning the wrong legal basis of the impugned decision is right. Admittedly, in the present case [the decision] should be based on Article 258 § 1 (1) of the Code of Criminal Procedure since the accused did not have his permanent place of residence in the country and anyway he did not properly inform the person conducting the investigation of his address but instead gave an address where he was not present and subsequently – despite being instructed to do so – did not notify his actual place of residence. Therefore, it was justified to consider that it was probable that the accused was hiding (Article 258 § 1 (1) of the Code of Criminal Procedure). However, this mistake in the impugned decision did not have any influence on its contents as in fact the District Court had based the decision on the risk that the accused would go into hiding.
As for the accused's claim that the impugned decision did not refer to any evidence supporting the charges against him, it is not true since the reasoning of the impugned decision point to such evidence. It is obvious to everybody that in a situation where the pre-trial detention is based on the risk of flight, detention constitutes the only effective preventive measure. Therefore, the accused's allegation concerning the failure to explain why a different preventive measure could not be applied is groundless.
As for the accused's submissions made under Article 259 § 1 (2) of the Code of Criminal Procedure (provision of care to his brother, renovation of a hotel and the risk of losses in the hotel) they are groundless and unconfirmed. Therefore, they cannot justify release from pre-trial detention.
Taking the above into account and in view of the fact that the pre-trial detention of Jan Czerbiński is justified, and since his case does not disclose any grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure, the impugned decision is upheld.”
On 9 May 2003 the Zgorzelec District Court dismissed an application for release from detention made by the applicant on 7 May 2003. The decision dismissing the application referred to the fact that the criminal proceedings against the applicant had reached only “the stage of jurisdictional proceedings”. Moreover, the evidence collected in the case showed a significant probability that the applicant had committed the act with which he was charged. The detention was justified by Article 258 § 1 (1) of the Code of Criminal Procedure as the applicant had moved to Germany and had not notified his actual place of residence. There existed in his case a risk of flight. In addition, only detention on remand would “secure the proper conduct of the proceedings”. The applicant's case did not disclose any of the grounds for release from pre-trial detention listed in Article 259 § 1 of the Code of Criminal Procedure relating to the hardship suffered by the applicant or his family. Finally, certain effects of the applicant's pretrial detention “constituted the normal consequences of such a preventive measure”.
The applicant's appeal against this decision was dismissed on 10 May 2003.
On 11 May 2003 the applicant attempted to commit suicide.
On 20 May 2003 the applicant's pretrial detention was prolonged until 20 August 2003. The decision repeated the grounds for pre-trial detention given in the decision of 9 May 2003. The applicant appealed against this decision, but his appeal was dismissed on 10 June 2003.
On 24 June 2003 the applicant made a fresh application for release from detention to the Zgorzelec District Court but it was dismissed on 1 July 2003. The decision dismissing the applicant's application repeated the grounds of the decision of 9 May 2003.
On 15 July 2003 the applicant's counsel applied to the Zgorzelec District Court for the applicant's release from detention and asked that it be replaced with police supervision and seizure of his passport. On 17 July 2003 the court dismissed the application. The decision dismissing the application repeated the grounds given in the decision of 9 May 2003.
On 20 August 2003 the applicant's pretrial detention was further extended until 20 November 2003. The reasons given for the extension repeated those in the decision of 9 May 2003.
On 27 August 2003 the applicant was hospitalised in the Bytom hospital.
On 6 and 9 October 2003 the applicant made new applications for release from detention to the Zgorzelec District Court but they were dismissed on 10 October 2003. The reasons given for the dismissal of the applications repeated those in the decision of 9 May 2003.
On 21 November 2003 the Zgorzelec District Court gave a judgment. The applicant was convicted as charged and sentenced to 8 months' imprisonment, suspended for two years. On the same date the Zgorzelec District Court decided to release the applicant.
The applicant remained in detention on remand ordered by the Gliwice District Court in connection with another set of criminal proceedings against him. On 27 April 2004 he was released.
Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.
Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
Article 263, in a version applicable at the material time, sets out timelimits for detention.
“§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.
§ 2. If the special circumstances of a case make it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by the trial court, for up to 12 months.
§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.
§ 4. Detention on remand may be prolonged for a fixed period exceeding the periods provided in §§ 2 and 3 by the appellate court (...) at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.


ITEMID: 001-5199
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: A.B. v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, a Swiss citizen born in 1939, is a pensioner residing in Basel. He is represented before the Court by Mr Joset and Ms Pauen, lawyers practising in Binningen in Switzerland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 June 1994 the applicant entered voluntarily and for the 45th time the psychiatric university clinic in Basel on account of his mental illness. On 7 June 1994 he requested his release.
In the subsequent proceedings the applicant was represented by a lawyer.
On 9 June 1994 an expert member of the Psychiatric Commission (Psychiatrische Kommission) of the Canton of Basel-Stadt examined the applicant in hospital. As a result, the Psychiatric Commission authorised on 15 June 1994 his forced confinement in hospital (zwangsweise Hospitalisierung) until 21 July 1994. In its decision the Commission referred to the applicant's chronic illness, in particular his manic ideas (Wahnideen) and that he might endanger others. The Commission thereby relied on S. 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) concerning detention for welfare purposes (fürsorgerische Freiheitsentziehung; privation de liberté à des fins d’assistance; see below, Relevant domestic law and practice).
On 20 July 1994 the psychiatric university clinic requested the applicant’s continuing psychiatric detention as his situation had not ameliorated. An expert member of the Psychiatric Commission again examined the applicant on 21 July 1994 and concluded that he suffered from a chronic mental illness. The expert noted that the applicant was ready to stay in the clinic until he had found a new apartment.
On 25 July 1994 the Psychiatric Commission authorised, with reference to the expert’s examination of 21 July, the applicant's continuing forced confinement until he had found a new apartment or at the latest until 21 October 1994.
On 5 August 1994 the applicant filed an appeal with the Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt, requesting his immediate release from the clinic or at least a finding that his stay in the clinic had been unlawful. He submitted, inter alia, that he had not been properly heard by the members of the Psychiatric Commission.
The Court of Appeal transmitted the appeal on 10 August 1994 to the Psychiatric Commission which, on 23 August 1994, filed its observations. The Commission noted that the applicant had agreed to stay in the clinic until he found a new apartment; he could move about freely and also leave the clinic though he returned at night to sleep. As long as he was under medicaments there was no danger of endangering others, though this could change immediately if the medicaments were taken belatedly, or not at all.
On 7 September 1994 the applicant was released from the clinic.
On 15 December 1994 the Court of Appeal declared the applicant's appeal inadmissible as he had meanwhile been released and therefore lacked interest in his appeal (fehlendes Rechtsschutzinteresse). The Court thereby referred to its constant case-law. To the extent that the applicant requested compensation in view of the alleged unlawfulness of his detention, the Court noted that he had the possibility of filing a separate civil claim according to S. 429a of the Swiss Civil Code (see below, Relevant domestic law and practice). The decision of the Court of Appeal was served on 16 January 1995.
On 15 February 1995 the applicant filed a public law appeal (staatsrechtliche Beschwerde) and an appeal (Berufung) with the Federal Court (Bundesgericht), claiming that he had a legal interest in his complaints, and requesting legal aid. In his appeal, he furthermore addressed the unlawfulness of his detention, in his public law appeal he complained about the length of the proceedings.
In a decision dated 2 March 1995 and issued in respect of the applicant's appeal, the Federal Court dismissed his request for legal aid and imposed advance court costs of 1,500 Swiss Francs (CHF) on the applicant. The Court found in particular that the appeal lacked prospects of success as the applicant had meanwhile been released. The Court thereby referred to its case-law as well as a previous case in which it had already explained this case-law to the applicant’s lawyer. As the applicant failed to pay the court costs, the Federal Court declared the appeal inadmissible on 29 March 1995.
On 3 May 1995 the Federal Court rejected the applicant's public law appeal. Insofar as the applicant complained of the length of the proceedings before the cantonal authorities, the Court found that he lacked practical interest in his appeal as he had meanwhile been released.
B. Relevant domestic law and practice
Under the heading “Detention for Welfare Purposes” the Swiss Civil Code lists in Sections 397a-f the grounds and procedures leading to such detention, including psychiatric detention. For instance, S. 397f provides for a “simple and speedy” (einfach und rasch) judicial procedure in which the person is, if necessary, legally represented and, in first instance, there is an oral hearing. Under a separate heading “Responsibility of Guardianship Organs” the Civil Code lists in S. 426-430 liabilities and ensuing procedures in guardianship matters. Here, S. 429a , concerning “Detention for Welfare Purposes” provides, inter alia, that “Whoever has been damaged by an unlawful deprivation of liberty is entitled to damages and, if justified by the severity of the breach, to satisfaction.”
According to the case-law of the Federal Court, a complaint about unlawfulness of such detention may be raised by means of a claim for damages, but not of a public law appeal or an appeal after release from detention. For instance, in a decision of 1983 the Federal Court held:
“Il est de jurisprudence que le recours de droit public exige un intérêt actuel et pratique à ce que la décision attaquée soit annulée: le Tribunal fédéral doit trancher des questions concrètes, et non pas théoriques. L’intérêt actuel nécessaire fait défaut, en particulier lorsque l’acte de l’autorité a été exécuté ou est devenu sans objet ... Toutefois, le Tribunal fédéral renonce à faire d’un tel intérêt une condition de recevabilité du recours de droit public quand cette exigence empêcherait le contrôle de la constitutionnalité d’un acte qui peut se reproduire en tout temps et qui, en raison de sa brève durée, échapperait toujours à sa censure ...
En l’espèce, l’internement de la recourante a duré du 13 au 17 juin 1982. La recourante n’a dès lors plus d’intérêt actuel, puisque la mesure critiquée a pris fin. Les circonstances exceptionnelles qui permettent de renoncer à cette exigence ne sont pas réalisées. En matière de privation de liberté à des fins d’assistance, le séjour dans un établissement approprié n’est pas légalement limité à un bref laps de temps : il peut se prolonger tant que l’assistance personnelle ne peut pas être fournie d’une autre manière aux personnes indiquées à l’art. 397a CC. L’intérêt actuel peut donc exister encore au moment où le Tribunal fédéral est saisi d’un recours de droit public.
On ne saurait dire que celui qui a été relaxé après une mesure de privation de liberté à des fins d’assistance a encore un intérêt actuel à former un recours de droit public parce qu’il peut se prévaloir de l’illégalité du placement pour réclamer une indemnité. L’art. 429a CC donne droit à une indemnité à titre de dommages-intérêts et de réparation morale en cas de privation illégale de liberté ...” (Arrêts du Tribunal fédéral [ATF] 109 I a 170 et seq.).
This case-law also applies to other types of detention (see ATF 110 Ia 140) and was confirmed in 1999 (ATF 125 Ia 394). In the last mentioned decision, the Federal Court furthermore generally found that a person who had been released from detention can, pursuant to Article 5 § 5 of the Convention, institute separate proceedings for damages in which all complaints may be raised about the unlawfulness of detention


ITEMID: 001-96477
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GRIMM v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Wolfgang Grimm, is a German national who was born in 1955 and lives in Nürtingen. He is represented before the Court by Mr W. Burdenski, a lawyer practising in Frankfurt. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 December 1998 the applicant instigated divorce proceedings before the Frankfurt/Main District Court (Amtsgericht). The couple has two children, born in 1987 and 1990.
Between 1998 and 2006 the Frankfurt District Court held a number of hearings.
During a hearing held on 11 May 2007 the parties agreed that the issue of parental authority had been disposed of. However, the issues of alimony and equalisation of accrued assets remained controversial. The applicant lodged a request with the District Court to sever these ancillary matters from the divorce proceedings pursuant to section 628 § 1 No. 4 of the Code of Civil Procedure (see Relevant domestic law, below). The applicant’s wife opposed this request.
Following the hearing, the District Court rejected the applicant’s request and refused to issue a divorce decree before the settlement of the ancillary matters. It conceded that the divorce proceedings, which had already lasted eight years, had been extraordinarily lengthy. However, the applicant had not established that the length of the proceedings amounted to an unacceptable hardship. A date for a new hearing was scheduled for 17 August 2007. By letter of 11 July 2007 the applicant’s previous counsel indicated that he no longer represented him. The hearing was then postponed to 15 February 2008 in response to the request of the applicant’s new counsel in view of the extent of the case-file.
On 27 August 2007 and 12 February 2008 the applicant expanded his cross-action.
On 19 November 2007 the applicant lodged a fresh request to sever the ancillary matters and to decree the divorce. He alleged that the length of the proceedings as such constituted an unacceptable hardship. It was preventing him from marrying his new partner and his psychological health had been ruined. He further alleged that the length of the proceedings was primarily imputable to his wife’s conduct.
On 15 February 2008 the District Court held a hearing.
By a decision given in written proceedings on 30 April 2008, the District Court submitted to the parties a proposal for a friendly settlement regarding alimony for the applicant’s wife and children and distribution of accrued assets. The parties were granted a time-limit until 30 May 2008 to make a statement on the settlement proposal, and until 1 July 2008 on other aspects. The applicant was further informed that, for reasons of procedural efficiency, the severing of the ancillary matter could not be envisaged as long as it had not been established how to deal with the applicant’s pension entitlement.
On 29 May 2008 the applicant’s wife rejected the settlement proposal.
By letter of 22 July 2008 the applicant’s counsel requested an extension of the time-limits for an indefinite period in view of extra-judicial settlement negotiations regarding all ancillary matters. The other party confirmed the settlement negotiations by letter of 28 July 2008.
On 20 October 2008 the District Court asked the parties’ counsels whether it was likely that the dispute would be disposed of by friendly settlement.
On 12 December 2008 the applicant’s counsel informed the District Court that a response was not yet possible due to ongoing settlement negotiations.
In response to a status enquiry by the District Court dated 30 March 2009 the applicant’s opponent’s counsel replied on 27 April 2009 that the applicant had not yet replied to his latest settlement proposal.
During a hearing in parallel proceedings which took place on 8 May 2009 the parties confirmed that they continued to negotiate on an overall friendly settlement.
On 1 August 2005 the applicant lodged an application with the Court, complaining about the length of the divorce proceedings pending before the Frankfurt District Court.
On 29 January 2007 and 12 February 2007 the Court received friendly settlement declarations signed by the parties under which the applicant agreed to waive any further claims against Germany in respect of the facts giving rise to this application against an undertaking by the Government to pay him 9,000 euros to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case as far as it regards the length of the divorce proceedings, pending before the Frankfurt am Main District Court (file no. 35 F 3003/99-54), until the date on which the parties conclude the friendly settlement.
On 13 March 2007 the Court decided to strike the application out of its list of cases pursuant to Article 37 § 1 of the Convention.
Section 623 of the Code of Civil Procedure provides that divorce proceedings as such and proceedings relating to alimony, partition of property, pension rights adjustments and custody – so called ancillary matters (Folgesachen) – have to be examined and decided in joint proceedings (Verbundverfahren).
Section 628 § 1 No. 4 stipulates that the court may grant the divorce decree before deciding on an ancillary issue only if the joint decision would delay the decision on divorce to such an extraordinary extent that the delay would amount to an unacceptable hardship, even taking into account the importance of the ancillary matter.