ITEMID: 001-114134
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BANIČEVIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicants, Mr Ante Baničević and Ms Marija Baničević, are Croatian nationals, who were born in 1950 and 1951 respectively and live in Smokvica. They were represented before the Court by Mr M. Tvrdeić, a lawyer practising in Zagreb.
The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 17 July 1993 the applicants’ son was killed in a road traffic accident.
4. The Dubrovnik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Dubrovniku) on 16 November 1995 instituted criminal proceedings in the Korčula Municipal Court (Općinski sud u Korčuli) against D.T., the driver who had allegedly caused the accident.
5. On 7 September 2000 the applicants and their two children lodged a civil action for damages in the Korčula Municipal Court against the insurance company J., with which D.T. was insured. Since the criminal proceedings were pending, the Korčula Municipal Court on 8 March 2002 stayed the civil proceedings until the judgment in the criminal proceedings became final.
6. In a judgment of 12 July 2002 the Korčula Municipal Court found D.T. guilty of causing a road traffic accident and the death of the applicants’ son. However, in a judgment of 13 December 2002 the Dubrovnik County Court (Županijski sud u Dubrovniku), acting as the appeal court, terminated the proceedings against D.T. owing to the expiry of the statutory limitation period. It held that since no procedural steps had been taken in the proceedings for over five years, that is, between 21 October 1996 and 26 March 2002, the prosecution of the offence in question had become timebarred on 21 October 2001, under Article 19 of the Criminal Code.
7. On 2 June 2003 the Korčula Municipal Court granted the applicants’ civil claim for damages. The relevant part of the judgment reads as follows:
“Under section 376(1) of the Civil Obligations Act a claim for damages becomes statute-barred three years after the injured party learned about the damage and the identity of the person who caused it (subjective time-limit), or five years after the damage occurred (objective time-limit).
In the present case the injured party learned about the damage on the day the road traffic accident in question occurred, when their son and brother died, and the threeyear limitation period started to run on that day, 17 July 1993. The claimants brought their civil action on 7 September 2000, that is to say, after the limitation period prescribed under section 376 of the Civil Obligations Act had expired.
However, section 377 of the Civil Obligations Act provides that where the damage was caused by a criminal offence, the statutory limitation period for seeking damages expires at the same time as the statutory limitation period for the criminal prosecution, where the latter period is longer.
Criminal case file no. ... shows that the damage in question was the result of a criminal offence, although these proceedings did not end in a final conviction. However, the outcome of the proceedings undoubtedly shows that the damage was the result of a criminal offence. The institution of criminal proceedings interrupts the running of the limitation period for seeking compensation for damage caused by a criminal offence. In the case at issue the statutory limitation period in respect of the criminal offence under Article 272 subparagraph (4) in conjunction with subparagraphs (1) and (2) of the Criminal Code is ten years; hence, the same statutory limitation period is to be applied in respect of the claim for damages in connection with that offence.
The civil action in issue was brought on 7 September 2000, that is, before the expiry of the statutory limitation period prescribed in respect of the criminal prosecution, which means that the action was lodged before the expiry of the statutory limitation period under section 377(1) of the Civil Obligations Act.”
8. On 1 September 2005 the Dubrovnik County Court, acting as the court of appeal, reversed the first-instance judgment. The relevant part of the judgment reads as follows:
“... the statutory limitation period in respect of a claim for compensation for damage caused by a criminal offence is to be assessed according to section 377 of the Civil Obligations Act only where the existence of a criminal offence and the perpetrator’s responsibility have been established in a final judgment on conviction.
Only in exceptional circumstances may a civil court assess, as a preliminary issue, whether the damage was caused by a criminal offence, namely where, owing to certain procedural requirements, it has not been possible to conduct criminal proceedings against the perpetrator (for example owing to the latter’s death); that is not the case here.
It is clear from the above that in the case under consideration, the provision to be applied is not section 377 of the Civil Obligations Act but rather section 376 of that Act.”
9. On an unspecified date in 2006 the applicants lodged an appeal on points of law against that judgment with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining that the Dubrovnik County Court had misinterpreted the relevant law concerning the application of the statutory limitation period.
10. On 12 April 2006 the Supreme Court dismissed the applicants’ appeal on points of law. The relevant part of the decision reads as follows:
“The longer statutory limitation period in respect of a claim for compensation for damage, under section 377 of the Civil Obligations Act, is applicable if the damage was caused by a criminal offence. The statutory limitation period is to be assessed according to that provision only where the existence of a criminal offence and the perpetrator’s responsibility have been established by a final conviction. In the present case the criminal responsibility of the perpetrator ... has not been established by a final judgment of the criminal court. A civil court may only exceptionally assess whether the damage was caused by a criminal offence, in order to establish the applicable statutory limitation period. It can, in the course of the civil proceedings, deal with that issue only where, owing to certain procedural requirements, it has not been possible to conduct criminal proceedings against the perpetrator. In the present case, however, criminal proceedings were conducted and terminated by a secondinstance judgment dismissing the charges [on procedural grounds].”
11. The applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 25 October 2006, arguing that the lower courts had misinterpreted the rules on application of the statutory limitation period.
12. On 4 November 2009 the Constitutional Court dismissed the applicants’ constitutional complaint, endorsing the arguments of the lower courts. This decision was served on the applicants’ counsel on 12 December 2009.
13. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as then in force, read as follows:
“(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired.
(2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired.
...”
“(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it.
(2) In any event that claim shall become statute-barred five years after the damage occurred.
...”
“(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution.
(2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages.
...”
“The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor’s claim.”
“...
(3) Where the statutory limitation period has been interrupted by the lodging of a civil action or other request ... it shall start to run again after the termination of the proceedings.
...”
14. The relevant parts of the Criminal Code (Kazneni zakon, Official Gazette no. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001) provide:
“(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered.
...”
“(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia, ..., may not be instituted after expiry of the following periods, calculated from the time the offence was committed:
...
- five years if the case concerns a criminal offence punishable by more than three years’ imprisonment,
...”
(1) The limitation period shall start to run from the date on which the offence was committed.
...
(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.
...
(5) The statutory limitation period shall start to run again after each interruption.
(6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.”
“(1) Road users who, by violating the regulations on traffic safety, endanger other road users in such a manner that they cause an accident in which another sustains serious bodily injury or extensive material damage shall be punished by a term of imprisonment of between six months and five years.
(2) If the offence referred to in paragraph 1 of this Article is committed by negligence, the perpetrator shall be punished by a fine or by a term of imprisonment not exceeding three years.
...
(4) If the offence referred to in paragraph 2 of this Article results in the death of one or more persons, the perpetrator shall be punished by a term of imprisonment of between six months and five years.”
15. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide:
“(1) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons, provided that this does not cause significant delays in the proceedings.
...”
“A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings.”
“Persons entitled to lodge a claim for compensation (Article 128) may, until the end of the trial, withdraw their claim in the criminal proceedings and pursue it in the civil proceedings. ... “
“(1) The court can, by means of a judgment, dismiss the charges, acquit the accused or find him or her guilty.”
“The court shall issue a judgment dismissing the charges:
...
(6) if the accused has been exempted from prosecution by an amnesty or pardon, or if the statutory limitation period has expired, or if other circumstances barring prosecution exist.”
16. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005) read as follows:
“If it is necessary for a court, in order to make its decision, to first settle an issue of the existence of a right or legal relationship, and no decision on this issue has yet been adopted by a court or other competent body (preliminary issue), the court may settle the issue itself, unless otherwise provided for under special rules.
The court’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled.
In civil proceedings, where an issue arises in relation to a criminal offence and the perpetrator’s criminal liability, the court shall be bound by the final judgment of the criminal court by which the accused was found guilty.”
17. In its judgment no. Rev-358/1991-2 of 19 December 1991, the Supreme Court held that if a civil action for damages had been lodged after the criminal prosecution had become time-barred, the longer statutory limitation period under section 377 of the Civil Obligations Act could not be applied. The relevant part reads:
“Under section 377(1) of the Civil Obligations Act a claim for compensation for damage caused by a criminal offence is time-barred when the statutory limitation period for the criminal prosecution expires. The criminal prosecution of the third defendant undoubtedly became time-barred [in the course of] the criminal proceedings against him in case no. ..., in which the charges against him were dismissed, because the prosecution had become time-barred by a final judgment of 9 March 1987, in other words, before the civil action in these civil proceedings was lodged (on 21 September 1989). Therefore, the claim [for damages] also became time-barred on that date.”
18. The Supreme Court, in its decision no. Rev-2563/1992-2 of 6 April 1993, examined the possibility for a court in civil proceedings to assess the statutory limitation period under section 377 of the Civil Obligations Act if criminal liability had not been established by a final criminal court judgment. The relevant part of the decision reads as follows:
“The conclusion of the lower courts that section 377 of the Civil Obligations Act is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect. This is because, according to the well-established case-law, if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his or death or mental illness, or the offence at issue has been exempted from prosecution by a pardon or amnesty, or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution, the fact that the damage was caused by a criminal offence may, if the defendant has invoked the statute of limitations, be established (as a preliminary issue) in the civil proceedings.
It is also to be noted that the longer statutory limitation period under section 377 of the Civil Obligations Act is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage.”
19. The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence.
The relevant part of the appeal decision of the Bjelovar County Court (Županijski sud u Bjelovaru) of 22 April 1999 (no. Gž-626/99) 1999 reads as follows:
“... The statutory limitation period under section 377 of the Civil Obligations Act, as a longer limitation period, can be applied only if it has been established, by a judgment of a criminal court, that the damage was caused by a criminal offence. This limitation period cannot be applied if the criminal proceedings were terminated by a decision without a finding of guilt in respect of the person responsible. However, there is some doubt as to whether the civil court is allowed to establish whether the damage was caused by a criminal offence.
The civil court is allowed to do so only if there existed some circumstances barring the criminal prosecution, with the result that no criminal proceedings could be conducted against the perpetrator. Only then, in order to assess the statutory limitation period in respect of damage caused by a criminal offence, may the civil court itself establish whether the damage was caused by acts constituting a criminal offence.”
The same approach was followed in the appeal judgment of the Varaždin County Court (Županijski sud u Varaždinu) of 3 February 2003 (no. Gž151/03-2), concerning a case where the alleged perpetrator of the offence had died during the criminal proceedings.


ITEMID: 001-90051
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF S. AND MARPER v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Ledi Bianku;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Stanislav Pavlovschi
TEXT: 9. The applicants were born in 1989 and 1963 respectively and live in Sheffield.
10. The first applicant, Mr S., was arrested on 19 January 2001 at the age of 11 and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001.
11. The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant’s solicitors, and on 14 June 2001 the case was formally discontinued.
12. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [[2002] EWHC 478 (Admin)].
13. On 12 September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) [[2003] EWCA Civ 1275]. As regards the necessity of retaining DNA samples, Lord Justice Waller stated:
“... [F]ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual’s propensity to commit certain crime and be used for that purpose within the language of the present section [section 82 of the Criminal Justice and Police Act 2001]. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner ... Why cannot the aim be achieved by retention of the profiles without retention of the samples?
The answer to [these] points is as I see it as follows. First the retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself Convention compliant; second any change in practice would have to be Convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime.”
14. Lord Justice Sedley considered that the power of a chief constable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible.
15. On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of section 64(1A) of the Police and Criminal Evidence Act 1984 (PACE), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the information could not be used. In two cases, compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained: as a result it had not been possible to convict either suspect.
16. Lord Steyn noted that the value of retained fingerprints and samples taken from suspects was considerable. He gave the example of a case in 1999, in which DNA information from the perpetrator of a crime was matched with that of “I” in a search of the national database. The sample from “I” should have been destroyed, but had not been. “I” had pleaded guilty to rape and was sentenced. If the sample had not been wrongly detained, the offender might have escaped detection.
17. Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime-scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime-scene sample would be matched immediately with an individual’s profile on the national database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime.
18. Lord Steyn also noted that PACE dealt separately with the taking of fingerprints and samples, their retention and their use.
19. As to the Convention analysis, Lord Steyn inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed. Questions of whether, in the future, retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments required it, judicial decisions could be made, when the need occurred, to ensure compatibility with the Convention. The provision limiting the permissible use of retained material to “purposes related to the prevention or detection of crime ...” did not broaden the permitted use unduly, because it was limited by its context.
20. If the need to justify the modest interference with private life arose, Lord Steyn agreed with Lord Justice Sedley in the Court of Appeal that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “provided for by law”, as required by Article 8 of the Convention.
21. As to the justification for any interference, the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted. Counsel for the Home Secretary had contended that the aim of the retention had nothing to do with the past, that is, with the offence of which a person had been acquitted, but was to assist in the investigation of offences in the future. The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime. Lord Steyn saw five factors which led to the conclusion that the interference was proportionate to the aim: (i) the fingerprints and samples were kept only for the limited purpose of the detection, investigation and prosecution of crime; (ii) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints would not be made public; (iv) a person was not identifiable from the retained material to the untutored eye; (v) the resultant expansion of the national database by the retention conferred enormous advantages in the fight against serious crime.
22. In reply to the contention that the same legislative aim could be obtained by less intrusive means, namely by a case-by-case consideration of whether or not to retain fingerprints and samples, Lord Steyn referred to Lord Justice Waller’s comments in the Court of Appeal, which read as follows:
“If justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible.”
23. Lord Steyn did not accept that the difference between samples and DNA profiles affected the position.
24. The House of Lords further rejected the applicants’ complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of Article 14 of the Convention when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation. Lord Steyn held that, even assuming that the retention of fingerprints and samples fell within the ambit of Article 8 of the Convention so as to trigger the application of Article 14, the difference of treatment relied on by the applicants was not one based on “status” for the purposes of Article 14: the difference simply reflected the historical fact, unrelated to any personal characteristic, that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken. The applicants and their suggested comparators could not in any event be said to be in an analogous situation. Even if, contrary to his view, it was necessary to consider the justification for any difference in treatment, Lord Steyn held that such objective justification had been established: firstly, the element of legitimate aim was plainly present, as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent; secondly, the requirement of proportionality was satisfied, section 64(1A) of PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime.
25. Baroness Hale of Richmond disagreed with the majority, considering that the retention of both fingerprint and DNA data constituted an interference by the State in a person’s right to respect for his private life and thus required justification under the Convention. In her opinion, this was an aspect of what had been called informational privacy and there could be little, if anything, more private to the individual than the knowledge of his genetic make-up. She further considered that the difference between fingerprint and DNA data became more important when it came to justify their retention as the justifications for each of these might be very different. She agreed with the majority that such justifications had been readily established in the applicants’ cases.
26. PACE contains powers for the taking of fingerprints (principally section 61) and samples (principally section 63). By section 61, fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorises the taking, or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence. Before fingerprints are taken, the person must be informed that the prints may be the subject of a speculative search, and the fact of the informing must be recorded as soon as possible. The reason for the taking of the fingerprints is recorded in the custody record. Parallel provisions relate to the taking of samples (section 63).
27. As to the retention of such fingerprints and samples (and the records thereof), section 64(1A) of PACE was substituted by section 82 of the Criminal Justice and Police Act 2001. It provides as follows:
“Where (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution. ...
(3) If (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must, except as provided in the following provisions of this section, be destroyed as soon as they have fulfilled the purpose for which they were taken.
(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”
28. Section 64 in its earlier form had included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence, the fingerprints and samples, subject to certain exceptions, were to be destroyed “as soon as practicable after the conclusion of the proceedings”.
29. The subsequent use of materials retained under section 64(1A) is not regulated by statute, other than the limitation on use contained in that provision. In Attorney-General’s Reference (No. 3 of 1999) [2001] 2 AC 91, the House of Lords had to consider whether it was permissible to use in evidence a sample which should have been destroyed under the then text of section 64 of PACE. The House considered that the prohibition on the use of an unlawfully retained sample “for the purposes of any investigation” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge.
30. The Data Protection Act was adopted on 16 July 1998 to give effect to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 (see paragraph 50 below). Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1). “Sensitive personal data” means personal data consisting, inter alia, of information as to the racial or ethnic origin of the data subject, the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings (section 2).
31. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. Under the first principle personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, and provides, inter alia, that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (§ 5 (a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing of sensitive personal data is necessary for the purpose of, or in connection with, any legal proceedings (§ 6 (a)), or for the administration of justice (§ 7 (a)), and is carried out with appropriate safeguards for the rights and freedoms of data subjects (§ 4 (b)). Section 29 notably provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules 2 and 3. The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
32. The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notices”) in this respect (section 40). The Act makes it a criminal offence not to comply with an enforcement notice (section 47) or to obtain or disclose personal data or information contained therein without the consent of the data controller (section 55). Section 13 affords a right to claim damages in the domestic courts in respect of contraventions of the Act.
33. A set of guidelines for the retention of fingerprint and DNA information is contained in the Retention Guidelines for Nominal Records on the Police National Computer 2006 drawn up by the Association of Chief Police Officers in England and Wales. The Guidelines are based on a format of restricting access to the Police National Computer (PNC) data, rather than the deletion of that data. They recognise that their introduction may thus have implications for the business of the non-police agencies with which the police currently share PNC data.
34. The Guidelines set various degrees of access to the information contained on the PNC through a process of “stepping down” access. Access to information concerning persons who have not been convicted of an offence is automatically “stepped down” so that this information is only open to inspection by the police. Access to information about convicted persons is likewise “stepped down” after the expiry of certain periods of time ranging from five to thirty-five years, depending on the gravity of the offence, the age of the suspect and the sentence imposed. For certain convictions the access will never be “stepped down”.
35. Chief police officers are the data controllers of all PNC records created by their force. They have the discretion in exceptional circumstances to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories “owned” by them. An “exceptional case procedure” to assist chief police officers in relation to the exercise of this discretion is set out in Appendix 2. It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed. Before deciding whether a case is exceptional, the chief police officer is instructed to seek advice from the DNA and Fingerprint Retention Project.
36. Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted (section 83 of the 2006 Act, adding section 18A to the 1995 Act.). Thereafter, samples and information are required to be destroyed unless a chief constable applies to a sheriff for a two-year extension.
37. The Police and Criminal Evidence Order of Northern Ireland 1989 was amended in 2001 in the same way as PACE applicable in England and Wales. The relevant provisions currently governing the retention of fingerprint and DNA data in Northern Ireland are identical to those in force in England and Wales (see paragraph 27 above).
38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred, in particular, to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 United Nations Convention on the Rights of the Child.
39. The report also expressed concerns at the increasing use of the DNA data for familial searching, inferring ethnicity and non-operational research. Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database, and prioritising them in terms of “closeness” to a match. This allows possible genetic relatives of an offender to be identified. Familial searching might thus lead to revealing previously unknown or concealed genetic relationships. The report considered the use of the DNA database in searching for relatives as particularly sensitive.
40. The particular combination of alleles in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor. Ethnic inferring through DNA profiles is possible as the individual “ethnic appearance” is systematically recorded on the database: when taking biological samples, police officers routinely classify suspects into one of seven “ethnic appearance” categories. Ethnicity tests on the database might thus provide inferences for use during a police investigation in order, for example, to help reduce a “suspect pool” and to inform police priorities. The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality.
41. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). The Convention provides, inter alia:
“Personal data undergoing automatic processing shall be
...
(b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
(c) adequate, relevant and not excessive in relation to the purposes for which they are stored;
...
(e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”
“Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. ...”
“Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”
42. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia:
“2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.
...”
“3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.
...”
“7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”
43. Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia:
“3. Use of samples and information derived therefrom
Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. ...
...
Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes.
4. Taking of samples for DNA analysis
The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority.
...
8. Storage of samples and data
Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.
Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.
Samples and other body tissues, or the information derived from them, may be stored for longer periods
– when the person so requests; or
– when the sample cannot be attributed to an individual, for example when it is found at the scene of an offence.
Where the security of the state is involved, the domestic law of the member State may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law.
...”
44. The Explanatory Memorandum to the Recommendation stated, as regards item 8:
“47. The working party was well aware that the drafting of recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society.
...
49. Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt.
50. The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By ‘final decision’ the CAHBI [Ad hoc Committee of Experts on Bioethics] thought that this would normally, under domestic law, refer to a judicial decision. However, the working party recognised that there was a need to set up databases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member States keep a criminal record and that such record may be used for the purposes of the criminal justice system ... It took into account that such an exception would be permissible under certain strict conditions:
– when there has been a conviction;
– when the conviction concerns a serious criminal offence against the life, integrity and security of a person;
– the storage period is limited strictly;
– the storage is defined and regulated by law;
– the storage is subject to control by Parliament or an independent supervisory body.”
45. According to the information provided by the parties or otherwise available to the Court, a majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. At least twenty member States make provision for the taking of DNA information and storing it on national databases or in other forms (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Luxembourg, the Netherlands, Norway, Poland, Spain, Sweden and Switzerland). This number is steadily increasing.
46. In most of these countries (including Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain and Sweden), the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes, notably those punishable by certain terms of imprisonment.
47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other member States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for one and ten years respectively in the event of an acquittal and Switzerland for one year when proceedings have been discontinued. In France, DNA profiles can be retained for twenty-five years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal.
48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person’s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons.
49. Complaint mechanisms before data-protection monitoring bodies and/or before courts are available in most of the member States with regard to decisions to take cellular samples or retain samples or DNA profiles.
50. Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13).
51. The Prüm Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, which was signed by several member States of the European Union on 27 May 2005, sets out rules for the supply of fingerprinting and DNA data to other Contracting Parties and their automated checking against their relevant databases. The Convention provides, inter alia:
“2. ... The Contracting Party administering the file may process the data supplied ... solely where this is necessary for the purposes of comparison, providing automated replies to searches or recording ... The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned ... above.”
52. Article 34 guarantees a level of protection of personal data at least equal to that resulting from the Data Protection Convention and requires the Contracting Parties to take into account Recommendation No. R (87) 15 of the Committee of Ministers of the Council of Europe.
53. The Council framework decision of 24 June 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters states, inter alia:
“Establishment of time-limits for erasure and review
Appropriate time-limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time-limits are observed.”
54. In the case of R. v. R.C. [[2005] 3 SCR 99, 2005 SCC 61] the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender’s DNA sample on the national database. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion, Fish J observed:
“Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v. Plant, [1993] 3 S.C.R. 281, at p. 293, the Court found that section 8 of the Charter protected the ‘biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state’. An individual’s DNA contains the ‘highest level of personal and private information’: S.A.B., at paragraph 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological make-up. ... The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.”
55. Article 40 of the United Nations Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
56. The National Council for Civil Liberties (“Liberty”) submitted case-law and scientific material highlighting, inter alia, the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities.
57. Privacy International referred to certain core data-protection rules and principles developed by the Council of Europe and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention. It emphasised, in particular, the “strict periods” recommended by Recommendation No. R (92) 1 of the Committee of Ministers for the storage of cellular samples and DNA profiles. It further pointed out a disproportionate representation on the United Kingdom National DNA Database of certain groups of the population, notably youth, and the unfairness that that situation might create. The use of data for familial testing and additional research purposes was also of concern. Privacy International also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which existed in that respect.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-100527
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: PALADE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 1. The applicant, Mr Grigore Palade, is a Romanian national who was born in 1963 and lives in Galaţi.
2.
3. On 13 June 2001 the applicant murdered G.C. in the latter's apartment, cut the victim's body into pieces and disposed of some of them in rubbish bins around the town.
He was apprehended by police on 18 June 2001 while trying to leave the country. He was convicted of murder and sentenced by the first-instance court on 11 February 2003. The decision became final on 8 December 2004.
4. Throughout the criminal trial against him and the proceedings complained of in the case at hand the applicant remained in detention.
5. Between November 2001 and June 2003 a series of articles was published in the local newspaper Monitorul de Galaţi concerning the criminal trial against the applicant.
The following articles were submitted by the applicant:
– “The Butcher 'Gogu' committed to trial” (“Măcelarul 'Gogu', trimis în judecată”), written on 10 November 2001 by C.S.;
– “The indictment of horror” (“Rechizitoriul groazei”) a detailed article written on 15 November 2001 by the same C.S.;
– “Gogu 'the Butcher''s trial postponed” (“Procesul lui Gogu 'Măcelaru' a fost amânat”) written on 1 February 2002 by the same C.S.;
– “Key-witness in Gogu the Butcher's trial” (“Martor-cheie în procesul lui Gogu Măcelaru”), written on 26 April 2002 by E.T.;
– “Gogu the Butcher is caught up in the victim's relatives' games” (“Gogu Măcelaru este ţinut in şah de rudele victimei sale”); written on 17 December 2002 by E.T.;
– “Gogu 'the Butcher' unhappy with his sentence” (“Gogu 'Măcelaru' nemulţumit de pedapsa primită”), written on 23 June 2003 by V.T.
A photograph of the applicant's face accompanied the articles published on 15 November 2001 and 17 December 2002.
6. V.T.'s article's introductory paragraph read as follows:
“The [man] who, two years ago, had killed his friend, chopped his body into several pieces and spread his internal organs all around the town, appealed against the judgment by which he has been convicted to 19 years' imprisonment.”
The article went on to reiterate the main facts of the case, the qualification given by the prosecutor to the crimes committed, the fact that “the [first-instance court] laid a distraint upon the applicant's apartment in order to secure payment of the compensation”, and that “the defence counsel had tried to lend weight to the idea that the applicant was not mentally responsible when he had committed the crime” (“nu era în toate minţile”) but that “the psychiatric expert evaluation the murderer underwent concluded that he had been responsible for his acts”.
Lastly, V.T. reported on the first hearing in the appeal proceedings as follows:
“... [The applicant] asked the judges ... to find that he had been provoked by the victim who, allegedly, had tried to kill him. This aspect does not justify the horror [the applicant] committed after ...”
7. On 8 July 2003 the applicant filed a criminal complaint for defamation against Monitorul de Galaţi and its reporters, giving as an example the article published by V.T. on 23 June 2003. He sought 20,000 US Dollars in damages. He argued that he had been defamed by the name given to him “Gogu the Butcher” and by the mention of his alleged insanity, which had not been proven by any medical report.
8. The Galaţi District Court held thirteen hearings in the case.
At the hearing on 10 October 2003, upon the court's request, the applicant clarified his complaint as referring only to V.T.
9. On 7 and 28 November 2003 the applicant requested legal aid, arguing that his financial situation was precarious. On 6 February 2004 the court dismissed his request as unfounded, after it carried out the necessary checks.
10. On 7 May 2004 the applicant requested that other articles published about his criminal trial be adduced in the case. The court noted that the applicant was detained, considered that it was difficult for him to obtain evidence and therefore ordered the newspaper to produce copies of the other articles.
11. The publisher informed the court that no other articles had been published.
At the hearing on 1 October 2004 the applicant contested that information and asked the court for a new postponement in order to adduce copies of other relevant articles. However, the court noted that on 5 March 2004 the applicant had declared that he had not wished to present other evidence and that, in any case, he had had enough time, from the beginning of the proceedings, to produce copies of other articles he might have considered relevant. It therefore dismissed the request and proceeded to hearing evidence from the parties and the prosecutor, after which it withdrew for deliberations.
12. The court delivered its judgment 15 October 2004. It acquitted the journalist on the grounds that he had not intended to insult or defame the applicant and that he had acted within the limits of his profession and based the article on court decisions which, in its opinion, constituted credible sources. The relevant parts of the judgment read as follows:
“The facts [committed by the defendant] do not constitute the offence of insult or defamation, as the defendant did not act with the intention to commit such an offence.
The defendant had the professional obligation to report on current issues of public concern ...
Given the extreme gravity of the crime imputed to the victim, and its social consequences, the victim exposed himself to public disapproval (oprobriu public); the defendant did not intend to defame or insult the victim but rather to meet his obligation to inform the public about his acts.
The defendant is a journalist and the victim used to work for a company that raised and processed poultry; therefore a certain degree of exaggeration in describing the victim in the title is acceptable.
Furthermore, ... the defendant wrote that the victim had been mentally responsible for his acts and it is a well known fact that only a person that is mentally responsible may be convicted ...
The court decision was an official and credible source for the defendant when he drafted the article; therefore it is obvious that by presenting the victim as mentally responsible for his acts, he had no intention of interfering with the victim's reputation.”
13. The applicant appealed. Before the Galaţi County Court he complained about the acquittal and considered that his right to present his case adequately had been restricted as he had not benefited from legal aid. He did not request further evidence.
14. In a final decision of 7 April 2005 the County Court upheld the firstinstance court decision. The County Court re-examined the facts and the evidence and concluded that the journalist had not intended to insult or defame the applicant and that the affirmations complained of were not capable of producing such consequences. It also considered that given the nature of the offence and the applicant's situation, he was capable of defending himself.


ITEMID: 001-119706
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF E.A. v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicant was born in 1966. After his release from detention in 2008 the applicant resided in the town of Perm.
7. The applicant arrived in Russia from Uzbekistan in 2002 or 2003. He was arrested on 11 August 2003 in the town of Perm in relation to criminal proceedings against him (see paragraph 25 below).
8. During his admission to Perm detention centre no. 1 in August 2003 the applicant had a check-up and was questioned about his past illnesses. According to the documents submitted by the Government, since the 1990s the applicant had been suffering from pulmonary tuberculosis and had received treatment in Uzbekistan. According to the applicant, in 1995 and 1998 he had pneumonia and had no pulmonary tuberculosis before his arrest in August 2003.
9. The applicant had a chest fluorography examination in the detention centre and was examined by a chest physician who prescribed treatment (such as ethambutol and B6 vitamin) in relation to his tuberculosis. On 18 August 2003 a blood sample from the applicant was submitted for HIV testing (an “enzyme-linked immunosorbent assay”). An additional similar test and a confirmatory test (“western blot”) were carried out on 3 and 4 September 2003 respectively.
10. The case file contains a document dated 9 September 2003 which appears to be the record of the HIV-related initial physical examination (involving, inter alia, vital signs, lymph nodes, skin, thorax and lungs). The applicant’s weight was 73 kg. The reference to the HIV stage is not legible. The next check up was scheduled for February 2004. The Government also submitted the applicant’s “epicrisis” record for 2003, which indicates HIV stage 2Б under the domestic classification (see paragraph 29 below). It is indicated in the record that during 2003 the applicant did not request any treatment or medication. Another document entitled “Plan for treatment in 2003” indicated that the applicant was to be examined in February 2004. This document did not specify any treatment, including HIV-related medication.
11. It can be seen from the typed copy of the applicant’s medical file that on several occasions in late 2003 and early 2004 he was examined by a chest physician who maintained his medication in relation to tuberculosis.
12. After the closure of the criminal proceedings against him (see paragraph 25 below), in June 2004 the applicant was transferred to prison no. 12 in the Perm region. Subsequently, he also spent periods of time in prison no. 9, as well as in the psychiatric and other units of the hospital for detainees (August - October 2004, February - March 2005, July 2005 and several months in 2006 and 2007). The applicant was treated, inter alia, for tuberculosis, gonorrhoea, haemorrhoids, hepatitis C, a psychiatric condition, and in relation to acts of self-mutilation.
13. In particular, in September 2004 the applicant was admitted to tuberculosis hospital no. 7 in relation to the progression of his infection with the hepatitis C virus. He had a number of blood tests, such as a full blood count (including leukocytes, erythrocytes, and lymphocytes), a urine test, a chest fluorography, an X-ray and an abdominal ultrasound scan, and was examined by a chest physician and a neurologist. It appears that, although scheduled, a consultation by an infectious disease specialist was not provided. It is indicated in one of the documents submitted by the Government that the applicant’s weight dropped to 60.5 kg in September 2004. However, it can be seen from the record of a check-up done on 1 October 2004 that his weight was then 70 kg. This record mentions HIV stage 2 or 3 (not clearly legible). The next check-up was scheduled for April 2005.
14. The Government submitted a handwritten medical document (which appears to relate to 2004) bearing the stamp of prison no. 9 and indicating HIV stage 3A.
15. It appears that in April 2005 the applicant was examined by an infectious disease specialist who prescribed laboratory testing for bilirubin and some laboratory tests in relation to liver function. The record of a check-up of the applicant of 25 July 2005 indicates HIV stage 2Б. The next check-up was scheduled for 25 January 2006.
16. In July 2005 the applicant complained that he was not being provided with adequate medical treatment in relation to his diseases, in particular as regards his HIV infection. The Kizel prosecutor’s office in charge of the supervision of prisons examined the applicant’s complaint and stated that the applicant had been provided with medical care free of charge, and that he had been regularly admitted to a medical facility and had consultations by infectious disease specialists. The prosecutor’s office also mentioned that no funds had been allocated to prison no. 12 for out-patient treatment of HIV-positive detainees in 2005 and thus the relevant medication had not been available there.
17. In March 2006 the applicant was again hospitalised and his discharge certificate refers to HIV stage 3. In July 2006 he had a periodic check-up; the record indicates HIV stage 3 (corrected from “4”).
18. In July 2006 the applicant complained about the issue of medical care to the Federal Department for the Execution of Sentences. This authority stated in reply that an infectious disease specialist had concluded that antiretroviral therapy (ART) was not necessary. Another similar complaint was examined in August 2006 by the Kizel prosecutor’s office in charge of the supervision of prisons. Dismissing the applicant’s complaint, this authority mentioned that prison hospital no. 9 had facilities for carrying out an immunological assessment, should it be prescribed for the applicant. So far there had been no indications for such an assessment.
19. In September 2006 the Medical Office of the Regional Department for the Execution of Sentences examined and dismissed the applicant’s further complaint relating to his HIV treatment. They stated that the applicant had received the necessary testing and medication, as well as consultations by specialist doctors, including an infectious disease specialist. They indicated that a decision on immunological assessment had to be taken by a medical professional. The applicant’s illnesses and their staging had not, at the relevant time, required ART.
20. Between October 2006 and May 2007 the applicant was kept in hospital no. 7 in the Perm region, on account, in particular, of the aggravation of his pulmonary tuberculosis. According to the Government, in October 2006 the applicant failed to comply with unspecified recommendations made by the regional centre for the prevention of and fight against AIDS and infectious diseases (“the AIDS centre”).
21. The applicant had a check up in January 2007; the record indicates HIV stage 4Б. In March 2007 he underwent an immunological assessment. It appears that he started a highly active antiretroviral therapy (HAART) regimen in April 2007. In early 2008 the regimen was adjusted.
22. The applicant sought early conditional release. By a judgment of 4 September 2008 the Solikamsk Town Court of the Perm Region granted his application and ordered his release, considering that his continued detention was not necessary for the purposes of his “correction”. The applicant was released soon thereafter. The court ordered him to report to the supervising authority and not to change his place of residence without prior notice to that authority.
23. According to the applicant, the administration of the detention facility told him that he had fifteen days to leave Russia or he would be deported.
24. According to the Government, in October 2008 and January 2009 the applicant attended the AIDS centre, where he confirmed that he was taking medication.
25. On 15 April 2004, rejecting the applicant’s plea of self-defence, the Leninskiy District Court of Perm convicted the applicant of causing injuries to one person and causing fatal injuries to another person. The court sentenced the applicant to six years and one month of imprisonment. On 25 May 2004 the Perm Regional Court upheld the judgment. The applicant made submissions through a videoconferencing facility from the remand centre.
26. The applicant served his sentence of imprisonment from June 2004 to September 2008, when he was released (see paragraphs 12 and 22 above).
27. By Decree no. 170 of 16 August 1994 the Federal Ministry of Health adopted Guidelines relating to HIV/AIDS Diagnosis and Treatment (section 1) and Dispensary Supervision (section 2). The Guidelines state as follows.
28. There is a clear link between the illness’s progress and the reduction of CD4 lymphocytes, the latter process being the main feature of HIV pathogenesis (point 1.1.). Staging of HIV should be determined depending on clinical and other relevant considerations listed in the Guidelines (points 1.3. and 1.5.). An HIV-positive person should be subjected to an initial examination confirming the HIV diagnosis and determining the stage of the illness and any concomitant illnesses. The initial examination should include, inter alia, HIV serological testing (an enzyme-linked immunosorbent assay test and a western blot test) and a CD4 cell count (point 2.1. of the Guidelines). Subsequent examinations should be carried out in accordance with the gravity of the patient’s state of health, or on a periodic basis. A subsequent examination at HIV stage 2 or 3 should be carried out in twelve months for a CD4 cell count of below 500, and in twenty-four months for a CD4 cell count of above 500 or if unknown.
29. Basic therapies include ART and prophylaxis to prevent secondary diseases. Antiretroviral therapy should be prescribed at stages 2A, 3A, 3Б and 3B (under the Russian classification) during periods of clinical activity and with regard to the clinical data (point 1.6.2.1. of the Guidelines). As to periods of remission, sustaining ART should be provided, with regard to clinical and immunological assessment. Depending on the CD4 level, the therapy should be constant or administered in three-month periods with three-month interruptions. If the CD4 level is not known, no sustaining therapy should be provided in certain situations or at stage 3A.
30. Federal Law no 38-FZ on the Prevention of HIV Propagation in Russia provided, in its pre-January 2005 version, that the State guaranteed the availability of the relevant examinations for detecting HIV infection; diagnosis and treatment; and provision of free medical care to HIV-positive Russian citizens (section 4 of the Law).
31. In 2004 the World Health Organisation (WHO) published its Guidelines “Scaling up Antiretroviral Therapy in Resource-Limited Settings. Guidelines for a public health approach.” They read as follows:
“WHO recommends that, in resource-limited settings, HIV-infected adults and adolescents should start ARV therapy when the infection has been confirmed and one of the following conditions is present.
*Clinically advanced HIV disease:
-WHO Stage IV HIV disease, irrespective of the CD4 cell count;
-WHO Stage III disease with consideration of using CD4 cell counts <350/mm3 to assist decision-making.
*WHO Stage I or II HIV disease with CD4 cell counts <200/mm3...
... The treatment of patients with WHO Stage IV disease (clinical AIDS) should not be dependent on a CD4 cell count determination. However, where available, this test can be helpful in categorizing patients with Stage III conditions with respect to their need for immediate therapy. For example, pulmonary TB can occur at any CD4 count level and, if the CD4 cell count level is well maintained (i.e. >350/mm3), it is reasonable to defer therapy and continue to monitor the patient. For Stage III conditions a threshold of 350/mm3 has been chosen as the level below which immune deficiency is clearly present such that patients are eligible for treatment when their clinical condition portends rapid clinical progression ... For patients with Stage I or Stage II HIV disease the presence of a CD4 cell count <200/mm3 is an indication for treatment.
In cases where CD4 cell counts cannot be assessed the presence of a total lymphocyte count of 1200/mm3 or below can be used as a substitute indication for treatment in the presence of symptomatic HIV disease. While the total lymphocyte count correlates relatively poorly with the CD4 cell count in asymptomatic persons, in combination with clinical staging it is a useful marker of prognosis and survival. An assessment of viral load (e.g. using plasma HIV-1 RNA levels) is not considered necessary before starting therapy. Because of the cost and complexity of viral load testing, WHO does not currently recommend its routine use in order to assist with decisions on when to start therapy in severely resource-constrained settings. It is hoped, however, that increasingly affordable methods of determining viral load will become available so that this adjunct to treatment monitoring can be more widely employed.
It should be noted that the current WHO Staging System for HIV Infection and Disease for Adults and Adolescents was developed several years ago and has consequent limitations. Adaptations at the level of national programmes may therefore be appropriate. Nevertheless, it remains a useful tool for assisting in defining parameters for initiating therapy in resource-limited settings and thus has continued to be applied in this revision.”
Under these Guidelines, if CD4 testing was, at the time, not available, it was recommended that ART be offered to patients with: (i) WHO Stage IV disease, irrespective of the total lymphocyte count; (ii) WHO Stage III disease, irrespective of the total lymphocyte count, the recommendation to start ART in all patients with stage III disease without reference to total lymphocyte counts reflecting, in the WHO’s opinion, the consensus of expert opinion; and (iii) WHO Stage II disease with a total lymphocyte count ≤ 1200/mm3. A total lymphocyte count of ≤ 1200/mm3 could be substituted for the CD4 count when the latter was unavailable and HIV-related symptoms existed. It was not useful in the asymptomatic patient. Thus, in the absence of CD4 cell testing, asymptomatic HIV-infected patients (WHO Stage I) should not be treated because there was currently no other reliable marker available in severely resource-constrained settings.
32. In 2004 the WHO also published “HIV/AIDS Treatment and Care. WHO Protocols for countries of the Commonwealth of Independent States”. The Protocols provide that the initial evaluation of an HIV positive patient must, inter alia, include routine laboratory assessments (haemoglobin, white blood cell count and differential, urinalysis, liver function tests, creatinine) and a CD4 cell count. ART should be started at (i) stage IV irrespective of CD4 cell count; (ii) stage III disease if symptoms present (including, but not restricted to, chronic diarrhoea of unknown aetiology, prolonged fever of unknown aetiology, pulmonary tuberculosis, recurrent invasive bacterial infections, or recurrent/persistent mucosal candidiasis), with consideration given to using CD4 cell counts < 350/mm3 to assist decision making. A CD4 count is advisable to assist with determining the need for immediate therapy. For example, pulmonary TB may occur at any CD4 level and other conditions may be mimicked by non-HIV aetiologies (for example, chronic diarrhoea, prolonged fever); (iii) stage I or II disease with CD4 cell counts = 200/mm3. The precise CD4 level above 200/mm3 at which ART treatment should be started is not established. ART is recommended for all patients with TB with a CD4 count < 200 cells/mm3 and should be considered for patients with CD4 < 350 cells/mm3.
33. In 2006 the WHO issued revised guidelines: “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” (with previous updates from 2003). They read as follows:
“In resource-limited settings the decision to initiate ART in adults and adolescents relies on clinical and immunological assessment. In order to facilitate the rapid scale-up of ART programmes with a view to achieving universal access to this therapy, WHO emphasizes the importance of using clinical parameters in deciding when to initiate it. However, it is recognized that the value of clinical staging in deciding when to initiate and monitor ART is improved by additional information on baseline and subsequent (longitudinal) CD4 cell counts. While WHO continues to advocate wider availability of affordable point-of-care CD4 cell count testing, the lack of a CD4 count should not delay the initiation of ART if the patient in question is clinically eligible. WHO encourages national programmes to increase access to CD4 measurement technologies ...
Clinical staging is intended for use where HIV infection has been confirmed by HIV antibody testing. It should form part of the baseline assessment (first visit) on entry into a care and treatment programme and is used to guide decisions on when to start co-trimoxazole prophylaxis and when to start and switch ART in situations where CD4 testing is not available ...
ART results in improvement in clinical status and brings about effective reversal of the clinical stage in patients with symptomatic disease. However, the value of clinical staging in monitoring the efficacy of ART, defining ART failure and determining when to switch ART is less clear. Studies are urgently needed to address the use of clinical criteria (clinical stage on treatment) in deciding when to switch ART in the absence of CD4 cell counts or viral load testing.
The optimum time to commence ART is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART ...
The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/ mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/mm3 [A-III]. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/ mm3 is unknown.
Patients with CD4 cell counts in this range require regular clinical and immunological evaluation.
The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART [A-III]. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered. This level also conforms to what is indicated in other consensus guideline documents. 4 CD4 cell counts can be helpful in categorizing patients with stage 3 conditions in respect of their need for immediate therapy. For example, pulmonary tuberculosis or severe bacterial infections can occur at any CD4 count level and it is reasonable to delay ART and continue to monitor patients with CD4 cell counts above 350 cells/ mm3. However, the initiation of ART is recommended for all HIV-infected individuals with pulmonary TB and CD4 counts below 350 cells/ mm3 ... and also for patients with severe bacterial infections who have CD4 counts below this value.”
34. According to the WHO Clinical Protocols on HIV/AIDS Treatment and Care, adopted in 2007, the core component of treating HIV-positive persons is the provision of ART, including HAART, combining three or more drugs. The initial evaluation of a patient should include confirmation of HIV infection status with the potential time of infection established, if possible; a detailed personal, family and medical history; a physical examination; laboratory and other examinations; specialist examinations, as appropriate; and clinical and immunological staging. Clinical staging (stage 3 or 4) and CD4 counts are the best primary markers and viral load the secondary marker for deciding whether to start ART.
35. In 2010 the WHO issued a revised and updated version of the Guidelines “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” The revised text indicates that all adolescents and adults with HIV infection and CD4 counts of or less than 350 cells/mm3 should start ART, regardless of the presence or absence of clinical symptoms. Those with severe or advanced clinical disease (WHO clinical stage 3 or 4) should start ART irrespective of their CD4 cell count. All patients should have access to CD4 cell-count testing to optimise pre-ART care and ART management. Viral-load testing is recommended to confirm suspected treatment failure. Irrespective of CD4 cell counts, patients co-infected with HIV and tuberculosis should be started on ART as soon as possible after starting TB treatment.
36. The United Nations Guidelines on HIV/AIDS and Human Rights, under the heading “Freedom from Cruel, Inhuman or Degrading Treatment or Punishment” state that denial to prisoners of access to HIV-related health care can constitute cruel, inhuman or degrading treatment, whereas prisoners suffering from AIDS should be considered for early release and given proper treatment outside prison.
37. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
VIOLATED_ARTICLES: 3


ITEMID: 001-61414
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RAKEVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
TEXT: 8. The applicant was born in 1961 and lives in Yekaterinburg.
9. On 25 September 1999 the applicant was visiting her acquaintance M.
10. According to the applicant, she stayed overnight to study the Bible and share her religious opinions. On 26 September 1999, M., offended by the applicant's views, called an ambulance to escort her to a mental hospital. Confused by the arrival of the ambulance, the applicant asked M. for an explanation, but was ordered by the medical staff to follow them.
11. According to the Government, the acquaintance had met the applicant in the street the day before and, perplexed by her unusual behaviour, took her home to take care of her. The applicant did not sleep all night long, cried, looked around, called for her mother (who lived in Kazakhstan) and hallucinated. The acquaintance therefore had to call an ambulance.
12. The applicant was taken to the Yekaterinburg City Psychiatric Hospital No. 26. The doctor on duty considered that she was suffering from a grave mental disorder, displaying symptoms of fear, anxiety and disorientation, which rendered the applicant a danger to herself and helpless. The applicant had cried and was uncooperative with the doctor.
13. On 26 September 1999 the hospital applied to a court for approval of the applicant's confinement.
14. Two days later, on 28 September 1999, a medical commission diagnosed the applicant as suffering from paranoid schizophrenia and confirmed that she should be kept in hospital. According to the doctors, once in the hospital, the applicant remained suspicious and distrustful. She did not reveal her emotions or explain the behaviour which had led to her hospitalisation. She accused the medical staff of stealing her belongings. The applicant insisted that her detention had been inspired by her acquaintance who was a member of a religious sect and who had intended to lure her into the sect. Having no trust in the doctors, the applicant refused any treatment. She was untidy, wore three jerseys at once and did not undress for bed. The applicant also refused to wash for fear of catching a cold, and wrote complaints which she hid in her underwear. All that time, according to the medical report, she remained emotionally cold and mannered, whilst repeating herself.
15. On 5 November 1999 the Ordzhonikidzevskiy District Court of Yekaterinburg, after a hearing at the hospital, confirmed that the detention had been necessary as the applicant had suffered from an acute attack of paranoid schizophrenia. In its findings, the court relied on assertions by the hospital that the applicant's aggravated mental condition had put her physical integrity in danger and that she had been delirious. The hospital's representatives also testified that the applicant had been taken to the hospital by the emergency services in a deranged state of mind and that she “had remained awake throughout the night studying the Bible and weeping”. A work colleague of the applicant testified that the applicant “had become uncooperative and filed frequent complaints about her co-workers' alleged prejudices”.
16. The applicant's representative allegedly did not have any access to the report of the medical commission either before or after the hearing, despite his requests.
17. On 11 November 1999 the applicant lodged an appeal against the decision of 5 November. The applicant states that she was unable to file detailed points of appeal as, at that time, the final text of the court decision had not been served on her.
18. On 24 December 1999 the Sverdlovsk Regional Court dismissed the appeal and confirmed that the applicant's detention had been necessary. However, the court established that the applicant no longer needed in-patient treatment as she had a job, was a single mother of a schoolboy and had already spent a considerable time in the hospital.
The basic principles of psychiatric medical care in Russia are governed by the Law on Psychiatric Treatment and Associated Civil Right Guarantees, enacted in 1992 (“the Psychiatric Treatment Law”, “the Law”).
Section 29 of the Law sets out the grounds for an involuntary placement in a psychiatric hospital:
“A mentally disturbed individual may be hospitalised in a psychiatric hospital against his will or the will of his legal representative and without a court decision having been taken, if the individual's examination or treatment can only be carried out by in-patient care, and the mental disorder is severe enough to give rise to:
a) a direct danger to the person or to others, or
b) the individual's helplessness, i.e. an inability to take care of himself, or
c) a significant impairment in health as a result of a deteriorating mental condition, if the affected person were to be left without psychiatric care.”
Section 32 of the Law specifies the procedure for the examination of patients compulsorily confined in a hospital:
“1. A person placed in a psychiatric hospital on the grounds defined by section 29 of the present Law shall be subject to compulsory examination within 48 hours by a commission of psychiatrists of the hospital, which commission shall take a decision as to the necessity of hospitalisation. If no reasons for hospitalisation are established and the hospitalised person expresses no intention of remaining in the hospital, the person shall be released immediately.
2. If hospitalisation is considered necessary, the conclusion of the commission of psychiatrists shall be forwarded to the court having territorial jurisdiction over the hospital, within 24 hours, for a decision as to the person's further confinement in the hospital.”
Sections 33-35 set out in detail the procedure for judicial review of applications for the compulsory treatment of mentally ill persons:
“1. Involuntary hospitalisation for in-patient psychiatric care on the grounds defined by Section 29 of the present Law shall be subject to review by the court having territorial jurisdiction over the hospital.
2. An application for the involuntary placement of a person in a psychiatric hospital shall be filed by a representative of the hospital where the person is detained.
The application containing the grounds for involuntary psychiatric hospitalisation shall be accompanied by a reasoned conclusion of a commission of psychiatrists as to the further necessity of the person's in-patient treatment in a psychiatric hospital.
3. A judge who accepts the application for review shall simultaneously order the person's detention in a psychiatric hospital for the term necessary for that review.”
“1. An application for the involuntary placement of a person in a psychiatric hospital shall be reviewed by a judge on the premises of the court or hospital within five days after receipt of the application.
2. The person shall be allowed to participate personally in the hearing in order to determine whether he should be hospitalised. If, on the information provided by a representative of the psychiatric hospital, the person's mental state does not allow him to participate personally in the hearing, the application shall be reviewed by the judge on the hospital's premises.
3. The presence at the hearing of a public prosecutor, a representative of the psychiatric institution requesting hospitalisation, and a representative of the person whom it is intended to detain, shall be mandatory.”
“1. Upon examination of the application on the merits, the judge shall either grant or refuse it.
2. The judge's grant of the application shall justify the person's hospitalisation and further confinement in the hospital.
3. The judge's decision shall be subject to appeal within ten days by the person placed in the psychiatric hospital, his representative, the head of the psychiatric hospital as well as by an organisation entitled by virtue of law or by its charter to protect citizens' rights, or by a public prosecutor. The appeal shall be made in accordance with the rules established in the Code of Civil Procedure of the RSFSR.”
Sections 47-1 and 48-1 of the Law provide a patient with the right to complain about the unlawful actions of medical staff:
“1. Unlawful actions of medical, social, educational and other staff and of medical commissions involved in psychiatric care may be complained about ... to a court, a supervising authority or a public prosecutor...”
“1. The complaints [defined in section 47-1] shall be considered by a court in accordance with chapter 24-1 of the Code of Civil Procedure...”
Chapter 24-1 of the Code of Civil Procedure outlines the procedure for the judicial review of administrative penalties.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4