ITEMID: 001-91238
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NOVINSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 34;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 6. The applicant was born in 1963 and previously resided in the town of Togliatti.
7. On 22 December 1999 police officers searched the applicant’s flat and arrested him on suspicion of having committed a number of crimes.
8. Thereafter the applicant was remanded in custody pending the outcome of the criminal proceedings against him.
9. The applicant alleged that he had been tortured during the pre-trial investigation.
10. By a judgment of 1 November 2000 the Samara Regional Court convicted the applicant and a number of co-accused and sentenced them to various terms of imprisonment. Having regard to various pieces of evidence, including the oral evidence given by a number of witnesses, the court found the applicant guilty of organising and inciting others to murder and bribery and sentenced him to twenty-one years’ imprisonment.
11. The applicant, one of his co-accused and their counsel appealed against the judgment of 1 November 2000.
12. On 22 October 2001 the Supreme Court examined and partly allowed the defence appeals. The applicant was acquitted of some of the charges and his sentence was reduced to nineteen years’ imprisonment.
13. The parties agree on the following time-line with regard to the applicant’s pre-trial detention.
14. The applicant was initially arrested on 22 December 1999. He has remained in detention since that date. Pending criminal proceedings against him, he was detained intermittently in IVS-1, IZ-63/1, IZ-77/3 and IZ-63/2.
15. From 11 to 16 June 2001 he was detained in IZ-63/1. On 16 June 2001 the applicant was sent to IZ-77/3 in the city of Moscow to take part in the appeal proceedings in his case. On 13 November 2001 the authorities transferred the applicant back to IZ-63/1. The applicant remained there until 5 December 2001. On that date he was transferred to prison facility IK-13 of the Samara Region to serve his sentence of imprisonment. Some years later, on 23 August 2006, the applicant was transferred from IK-13 to IK-26.
16. From 11 to 16 June 2001 and from 13 November to 5 December 2001 the applicant was detained in cell no. 36 of IZ-63/1.
17. According to the Government, the cell measured 34.02 square metres (6.3 x 5.4 x 3.1 metres), had a window and contained eight sleeping places, with no more than seven inmates being held together with the applicant.
18. The applicant stated that the cell measured around 30 square metres, contained ten two-tier beds designed for twenty detainees and a wooden table for ten persons. There were between 18 and 32 detainees in the cell at the relevant time. The prisoners were permitted daily outdoor exercise which lasted for 40 minutes. It was cold in the cell in winter (+13o C to +15o C) and stiflingly hot (+30o C to +40o C) in summer.
19. To support his allegations, the applicant referred to statements of support signed by a number of his fellow inmates who had witnessed the conditions of detention in the same cell or in other cells of IZ-63/1 (see paragraphs 37, 40, 43, 47, 56, 58, 59, 63 and 65 below).
20. The Government disputed the validity and veracity of these statements, submitting that none of the witnesses in question had been detained in the same cell simultaneously with the applicant.
21. The Government were requested to submit specific information on the number of inmates and beds in pre-trial detention centre IZ-63/1 from 11 to 16 June 2001 and from 13 November to 5 December 2001. They were invited to provide separate information for each day of the periods in question.
22. In response the Government submitted that no more than 1,100 inmates had been held in IZ-63/1 during the specified periods.
23. They could not submit copies of official logs and documentation as these documents had been destroyed following the expiry of the time-limit for their storage. From the documents confirming the destruction it follows that the registration logs in respect of the cells for the following three periods – 3 June to 25 September 2001, 26 September to 22 November 2001 and 23 November 2001 to 5 March 2002 – were destroyed in January 2007. The duty sheet (постовая ведомость) for June and November-December 2001 was destroyed in March 2005. The certificates on daily movements of inmates (справки о движении заключённых за сутки), daily logs on the presence and movements of inmates (суточные сводки о наличии и движении заключённых) and lists of inmates’ moves between cells (списки перемещения заключённых из камеры в камеру) for the year 2001 were destroyed in February 2003.
24. Instead, the Government submitted the following statements dated 10 January 2008 from officers D.K. and D.S., who had both served in that prison at the relevant time:
“In accordance with decree no. 63 of the Ministry of Justice of the RF dated 19 February 2001, the capacity of pre-trial detention centre no. 1 of the town of Samara was 1,100 inmates in 2001 and the overall number of inmates did not exceed that figure.
Cell no. 36 is equipped with eight sleeping places. In 2001 there were no more than eight inmates in the cell, including [the applicant].”
25. The Government also submitted, with reference to official certificates issued by the head of the prison authorities of IZ-63/1, that there had been 1,056 beds for inmates and 44 beds in the hospital unit of facility IZ-63/1. They also referred to order no. 63 of the Ministry of Justice dated 19 February 2001 on, among other things, the capacity of pre-trial detention centres in Russia. The order states specifically that IZ/63-1 had at the relevant time an overall living surface in cells of 4,400 square metres and was capable of accommodating 1,100 inmates.
26. The applicant partly agreed and partly disagreed with the information submitted by the Government. He stated that he may have remembered the exact number of inmates incorrectly and it was likely that in the specified periods there had been between 14 and 18 inmates with him in the cell. The applicant insisted that the cell was nevertheless overcrowded. He also specified that there had been eight two-tier bunk beds which had provided a total of sixteen sleeping places.
27. He submitted further statements by former inmates Mr S.V. Sidorchuk and Mr S.A. Rassokhin, who both again confirmed their earlier support (see paragraphs 46 and 51 below).
28. The applicant also submitted an article dated 25 September 2006 entitled “SIZO-1 – The gates of the Samara Prison System” (СИЗО-1 – ворота Самарской УИС), from an official newspaper published by the Central Department for the Execution of Sentences of the Ministry of Justice called Prison and Freedom (Тюрьма и воля) (issue no. 17-18), in which it was stated that:
“... for over forty-two years the staff of SIZO [IZ-63/1] have been carrying out difficult tasks on the State’s behalf. They do so in difficult conditions. In the first place, they have to cope with overcrowding. Although it has a capacity of 1,200 persons, around 1,600 inmates are being held here, whilst a couple of years ago the number of inmates was in excess of 3,000. For continuous periods of time, not only male but also female inmates were being held there.”
29. Between 16 June and 12 November 2001 the applicant was held in IZ-77/3 in the city of Moscow.
30. The applicant submitted that he had been detained in cell no. 524, measuring 27 square metres and containing 24 bunk beds. During the period between June and November 2001 the cell held between 34 and 48 inmates. It was infested with insects and had neither a separate toilet nor proper ventilation.
31. The Government submitted that the applicant had been detained in cells no. 523 and no. 524. Cell no. 523 measured 35.8 square metres, had 32 sleeping berths and contained no more than 28 persons besides the applicant. Cell no. 524 measured 32.8 square metres, had 32 sleeping places and contained no more than 28 persons besides the applicant. Each of the cells had two windows.
32. The Government submitted handwritten statements by prison inspectors Kh. and L. dated 20 January 2006, in which they certified that in 2001 there had been no more than 28 persons in cells 523 and 524.
33. According to the applicant these two cells were similar to each other and measured about 27 square metres, with 24 sleeping places each. At all the relevant times there were between 32 and 48 inmates in these cells. The prisoners had to sleep in turns. The cells were infested with insects, cockroaches and lice. The applicant admitted that some sanitation work had been carried out, but noted that it had been to no avail as the insects from the prisoners’ bedding had re-infested the cells each time.
34. The Government submitted that the inmates in both prisons had been provided with all the necessary bed linen, including a mattress, a blanket, two sheets, a pillowcase and a towel.
35. In respect of both prisons, the Government submitted that all prisoners had a fifteen-minute shower every seven days, that all the cells had been equipped with day-time as well as night-time lighting, that there had been a central heating system in the cells, that the inmates had been provided with food in accordance with the relevant instructions and rules and had had the possibility of receiving food parcels from their relatives, that the prisoners had been provided with medical assistance and had been regularly examined by prison doctors, that the WC area in both prisons had been separated from the living area by a brick wall and that the applicant had never complained about the conditions of his detention at the domestic level.
36. In his observations on the admissibility of the case the applicant submitted a number of statements from his fellow prisoners.
37. In an undated statement Mr S.N. Vasilyev fully confirmed the applicant’s account of the conditions of detention, specifically supporting his submissions in respect of, among other things, conditions in IZ-63/1.
38. In a statement dated 28 April 2006 Mr S.N. Vasilyev contested the Government’s factual submissions in respect of IZ-63/1. He stated that the Government’s presentation of the situation had been wrong, and he fully confirmed the applicant’s description of cells in IZ-63/1.
39. Mr S.N. Vasilyev is currently at liberty, living in the town of Togliatti.
40. In an undated statement Mr A.V. Bogolyubov, who also spent some time in IZ-63/1 (although not simultaneously with the applicant), supported the applicant’s submissions in respect of that prison.
41. The Government also stated that one Mr A.V. Bogolyubov, whom they had traced to one of the prisons of the Samara Region, had never been detained in the same cell of the same prison in the Samara Region together with the applicant.
42. It appears that the Mr A.V. Bogolyubov referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of Togliatti.
43. In a statement of 3 March 2006 Mr S.A. Rassokhin confirmed the applicant’s account of the conditions of detention in IZ-63/1.
44. The Government also stated that one Mr S.A. Rassokhin, whom they had traced to one of the prisons of the Samara Region, had never been detained in the same cell of the same prison in the Samara Region together with the applicant.
45. It appears that the Mr S.A. Rassokhin referred to by the applicant is a different person from the one referred to by the Government. The former is at liberty and currently resides in the town of Togliatti.
46. At the post-admissibility stage of the proceedings, the applicant submitted a fresh statement by Mr Rassokhin dated 27 January 2008, in which he said that he had been detained in IZ-63/1 in 2000-01 (although not in the same cell as the applicant) and had witnessed the fact that the actual number of beds in cells at that time was twice the figure submitted by the Government. Furthermore, in reality the cells measuring 30 square metres and containing 16 to 20 beds held twice as many inmates as there were beds.
47. In a statement of 25 April 2006 Mr S.V. Sidorchuk said that he had spent some time in IZ-63/1 at approximately the same time as the applicant. Mr Sidorchuk confirmed the applicant’s account of the conditions of detention.
48. In response to this statement, the Government submitted the following information. According to them, the inquiry revealed that Mr S.V. Sidorchuk had never been detained simultaneously with the applicant. They did not appear to dispute that Mr Sidorchuk had been detained in IZ-63/1 and had witnessed the conditions of detention in that prison.
49. Furthermore, the Government submitted a statement from Mr Sidorchuk dated 24 August 2006, in which he retracted his earlier statement in support of the applicant’s complaints.
50. In a statement of 6 February 2007 submitted by the Government, Mr Sidorchuk said that he remained a witness in the case, that he had not withdrawn his statement and that no pressure had been put on him by anyone. He added that he had never been detained at the same time as the applicant, with the result that his account of the conditions of detention concerned only himself and not the applicant.
51. At the post-admissibility stage of the proceedings, the applicant submitted a fresh statement by Mr S.V. Sidorchuk dated 27 January 2008. Mr Sidorchuk was then at liberty and resided in the town of Togliatti. He again confirmed the truth of the applicant’s factual allegations in respect of IZ-63/1. He also explained that his earlier retraction of the statement of 25 April 2006 had been due solely to the fact that at the relevant time he had applied for release on parole and that the prison officials had made insinuations and disguised remarks to the effect that his application for release might not be granted unless he retracted.
52. By letter of 21 March 2008 the applicant’s counsel, Ms Preobrazhenskaya, informed the Court that on 10 March 2008 Mr S.V. Sidorchuk had been apprehended by police officers and had spent the next six hours in the local department of the interior (the fact that Mr Sidorchuk was there between 1 p.m. and 7.15 p.m. is confirmed by an official certificate). He was questioned there by an assistant to the prosecutor, Mr S. Sviridov, in connection with his earlier statements in support of the applicant.
53. Mr S.V. Sidorchuk submitted a written statement dated 12 March 2008, according to which he was apprehended at 1.35 p.m. on 10 March 2008 and was then escorted to the police station, where he waited four and a half hours to be questioned by Mr S. Sviridov. The interview concerned the applicant’s case before the Court and the statements made by Mr S.V. Sidorchuk in that connection. No direct threats or overt intimidation were used, but Mr S.V. Sidorchuk stated that he had felt pressurised by the State in connection with the applicant’s case.
54. Mr S.V. Sidorchuk also submitted a copy of an interview record dated 10 March 2008 and a copy of the summons served on him by police officers on 10 March 2008. The interview record shows that he confirmed, among other things, the authenticity of his earlier statement dated 27 January 2008. The summons mentioned explicitly that Mr S.V. Sidorchuk was invited to an interview as a witness within the meaning of the domestic Code of Criminal Procedure, that he could come with his lawyer if he so wished and that he could be brought to the investigator by force or fined if he ignored the summons.
55. The Government acknowledged that the interview had taken place (having submitted copies of official duty rosters and police station logs to that effect as well as explanatory statements by the escorting police officers), but denied any pressure or coercion and argued that the aim had been to check the veracity of earlier statements made by Mr S.V. Sidorchuk.
56. In a statement of 18 April 2006 Mr V.I. Molochkov supported the applicant’s submissions in so far as they concerned cell no. 36 in IZ-63/1. It appears that Mr Molochkov was detained in that cell in 2001 at the same time as the applicant and that there were between 20 and 24 detainees and only 20 beds at that time.
57. The Government also stated that Mr V.I. Molochkov had never been detained in the same cell of the same prison in the Samara Region together with the applicant. According to them, he had been detained in a different cell of IZ-63/1 from 8 December 2000 until an unspecified date.
58. The following nineteen prisoners who were serving their sentence in IK-13 along with the applicant also supported his application: Mr A.S.Tikhonov (in respect of IZ-63/1), Mr V.G. Pamurzin (in respect of IZ-63/1), Mr S.Z. Suleymanov (in respect of IZ-63/1), Mr D.V. Vodopyanov (in respect of the conditions of detention in IZ-63/1), Mr O.V. Tkachenko (all complaints), Mr M. Moiseyev (all complaints), Mr D.N. Kartashov (all complaints), Mr S.N. Smirnov (all complaints), Mr D.I. Karlov (all complaints), Mr A.V. Borodin (in respect of IZ-63/1 in 2001), Mr N.R. Kofinullov (all complaints), Mr V.M. Kapitonov (all complaints), Mr V.S. Kalashnikov (all complaints), Mr A.V. Pronin (all complaints), Mr M.A. Mikhalkin (all complaints), Mr S.V. Sulkin (all complaints), Mr S.S. Kirzhenko (all complaints), Mr S.V. Karyakin (in respect of IZ-63/1), Mr S.V. Ashkhabekov (all complaints).
59. In a statement of 27 April 2006 Mr V.V. Slivin mentioned that he had been detained from 1997 to 2002 in IZ-63/1 in overcrowded cells. According to Mr Slivin, the Government’s factual submissions could not reflect the true conditions in IZ-63/1 any earlier than 2003.
60. The Government objected to this statement, as the applicant and Mr V.V. Slivin had never been detained in IZ-63/1 simultaneously. The Government did not appear to dispute that Mr V.V. Slivin had witnessed the conditions of detention in IZ-63/1 from 1997 to 2002.
61. In a statement of 24 August 2006 Mr Slivin said that he had been detained in IZ-63/1 from 1997 to 2002, that he personally had had no complaints about the conditions of detention there and that he had promised no support to the applicant. Mr Slivin confirmed that he had previously supported the applicant only in so far as his own personal experience was concerned.
62. In a statement of 6 February 2007 submitted by the Government, Mr V.V. Slivin stated that he had never supported the application and described the applicant’s allegation concerning pressure by the prison authorities as unfounded. He also wrote that “all references to him” were “without basis”.
63. In a statement of 7 May 2006 Mr A.A. Zotov confirmed that in 1998 and 1999 the conditions of detention in IZ-63/1 had been similar to the applicant’s description and that in 2003 some renovation work had been carried out by the prison authorities.
64. The Government also stated that Mr A.A. Zotov had never been detained in the same cell of the same prison in the Samara Region together with the applicant. They conceded that Mr A.A. Zotov had been detained in IZ-63/1 from 31 October 1997 to 27 March 1998.
65. In a statement of 12 May 2006 Mr I.V. Katkov said that the prisons in question had suffered from overcrowding both in 2005 and in 2006.
66. The Government questioned this statement, submitting that Mr I.V. Katkov had never been detained simultaneously with the applicant. They did not appear to dispute that Mr I.V. Katkov had been detained in IZ63/1 in 2005 and 2006.
67. The Government also submitted a statement by Mr I.V. Katkov dated 24 August 2006 in which he withdrew his support in respect of the applicant’s grievances.
68. The applicant submitted a number of further statements from his fellow inmates in support of his application, along with his observations on the merits of the case.
69. In handwritten statements dated 27 January 2008 one S.V Yunoshev and one M.Yu. Kondratyev, who had served their sentences along with the applicant in IK-26, confirmed the applicant’s description of the cells in IZ63/1, including the fact that they had been equipped with two-tier bunk beds, and the overcrowding in all of the cells in which he had been detained. Mr S.V. Yunoshev had not been detained in the same cells as the applicant, but he stated that the whole establishment had been overcrowded to twice its capacity. He also confirmed the applicant’s version of events in respect of the abortive visit by the applicant’s wife on 19 February 2007 (see paragraphs 81-82 below).
70. By letter of 13 September 2006 the applicant informed the Court that he had learnt that Mr S.V. Sidorchuk and Mr V.V. Slivin, under coercion from the authorities, had signed a retraction of their previous statements.
71. In the same letter he also alleged that the authorities had put “silent pressure” on him by refusing him access to work corresponding to his skills and preferences, that other prisoners had approached him with disguised threats, that there had been a general tightening of the prison regime “with reference to the applicant’s complaints to the Court” and that the authorities had sought to create a social vacuum around the applicant.
72. The Government in their letter of 20 February 2007 gave a detailed response to the applicant’s complaints and flatly denied his allegations, including those concerning the alleged pressure and tightening of the prison regime, claiming them to be unfounded. According to them, no pressure had been put on either Mr Sidorchuk or Mr Slivin.
73. The Government further submitted statements dated 6 February 2007 by the applicant’s fellow prisoners Mr V.V. Andreyev, Mr A.V. Ilyin, Mr I.A. Bokurskiy and Mr V.A. Myatlev, and statements from the applicant’s “good friends” Mr A.A. Skachkov, Mr A.S. Kobelev, Mr M.A. Cherantayev, Mr V.V. Gromadskiy and Mr V.E. Litvinov, who all confirmed that no pressure had been put on the applicant during his detention, that there had been no tightening of the prison regime or that at least the applicant had never spoken to them on the subject.
74. Similar statements had been made by a foreman of the applicant’s prison group, Mr A.V. Temkinov, as well as by prison staff including doctors and medical assistants.
75. On 6 February 2007 the applicant too had made a statement to the prison authorities to the effect that no pressure had been put on him since his transfer to prison IK-26 on 23 September 2006.
76. In response, the applicant submitted a handwritten statement by Mr V.V. Gromadskiy dated 27 November 2007 (see paragraph 73 above), explaining that the prison authorities had been putting pressure on him and other prisoners in connection with the applicant’s case and that the statement dated 6 February 2007 had been written as dictated by the head of prison IK-26.
77. The applicant also submitted that the pressure placed on him by the authorities had been demonstrated by his allegedly unjustified transfer to prison facility IK-26 in August 2006 as well as the refusal of permission for a visit by his wife in mid-February 2007.
78. The Government commented on these allegations by stating the following.
79. In respect of the applicant’s transfer from IK-13 to IK-26 on 23 August 2006, they submitted an official certificate issued by V.S., head of the Central Department of the Federal Service for the Execution of Sentences in the Samara Region. The certificate states as follows:
“In accordance with the legislation in force on the execution of sentences, individuals sentenced to imprisonment for the first time are held separately from those who have served a previous sentence of imprisonment.
With a view to executing this legislative provision, [IK-13] was reorganised into a strict-regime correctional facility for dangerous recidivists, whilst [IK-26] was reorganised into a strict-regime correctional facility for persons sentenced to imprisonment for the first time. In view of this reform ..., [the applicant], who had not been sentenced to imprisonment previously, was transferred along with other convicted prisoners (total number of 126) on 23 August 2006 from [IK-13] to [IK-26].
The above-mentioned establishments are situated in the same area, within 200 metres of each other.”
80. In his observations on the merits of the case, the applicant stated that this explanation was inadequate and simply untrue. He submitted that his transfer had been arbitrary, since some of the prisoners who would otherwise have qualified for such a transfer remained for some reason in IK13 (the applicant cited the following names: I.A. Bakurskiy, V.V. Slivin, Ya.I. Pykin, S.V. Sidorchuk and N.R. Kafeyatullov). At the same time, some fellow prisoners in IK-26 had not been serving prison terms for the first time and hence, according to the Government’s logic, should not have remained there. The applicant also pointed out that the Government had obtained the retraction of statements by the witnesses S.V. Sidorchuk, I.V. Katkov and V.V. Slivin on 24 August 2006, which was the day after the applicant’s transfer to IK-26 on 23 August 2006.
81. As regards the visit of the applicant’s wife, the Government submitted that on 19 February 2007 the applicant had asked for leave to see his wife, that on the same date leave had been granted (a copy of the applicant’s handwritten request with the prison officer’s stamp of approval on it was submitted), that the prison authority had made appropriate arrangements for the visit and that the visit had not taken place because the applicant’s wife failed to appear (handwritten reports by the prison officers concerned were submitted by the Government along with their observations on the merits of the case).
82. The applicant stated that his wife had wished to visit him on that date not in her private capacity but as his legal representative, with a view to collecting various documents for the purposes of submitting them to the Court. Permission for the visit was refused ostensibly because the applicant’s wife was not a lawyer, but merely a legal representative. At the same time, her visit in a private capacity had indeed been authorised but had she agreed to it, their communication would not have been covered by client-lawyer confidentiality rules and the applicant would not have been able to pass on to her his confidential documents, including the statements of his co-detainees. On 21 February 2007 the applicant’s wife had to hire a local lawyer, Ms Nechayeva, who later visited the applicant and successfully collected the documents in question. The applicant also joined his wife’s written statement dated 27 January 2008, confirming the course of events as described, and a copy of the order authorising Ms Nechayeva to represent the applicant.
83. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).
84. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide day-time and night-time illumination.
85. Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia.
86. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower.
87. Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month.
88. Order No. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme.
89. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.
90. The programme mentions pre-trial detention centre IZ-77/3 amongst the ones affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 1,109 inmates and in reality housed 1,562 detainees, in other words, 48.9% more than the permitted number.
91. The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps signiﬁcantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...
48. Speciﬁc mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...
50. The CPT would add that it is particularly concerned when it ﬁnds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufﬁcient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates ﬁtted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”
VIOLATED_ARTICLES: 3
34


ITEMID: 001-76253
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BOMPARD v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Marie-Claude Bompard, is a French national who was born in 1954 and lives in Bollène. She was represented before the Court by Mr R. Perdomo, a lawyer practising in Marseilles. The respondent Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a member of the French electorate. On 9 and 16 June 2002 parliamentary elections were held in France.
The applicant, together with a number of others, lodged an application with the Constitutional Council to have the elections declared null and void. She relied on Article L. 125 of the Elections Code, under which electoral boundaries must be reviewed according to population changes after the second national population census following the previous boundary review (see “Relevant domestic law and practice” below). The applicant alleged that the last electoral boundary review dated back to 1986. Since that time there had been two national censuses but, contrary to the provisions of electoral law, there had been no review of constituency boundaries according to population changes prior to the parliamentary elections of 9 and 16 June 2002. The applicant considered that, in the light of the statistics from the 1990 and 1999 censuses, it was apparent that the constituencies, whose boundaries had been drawn up in 1986, were unequal and differed significantly in terms of population. She contended in particular that such population differences infringed the principle of equal suffrage.
In a decision of 25 July 2002, the Constitutional Council dismissed the application on the ground that the matter raised fell within its power to review the constitutionality of Acts (Article 61 of the Constitution) and did not constitute an electoral dispute (Article 59 of the Constitution), but that the matter had not been referred to it for such a review. It observed in particular:
“... In seeking the annulment of the elections held on 9 and 16 June 2002 in the above-mentioned constituencies, the applicants contended that the current distribution of parliamentary seats between constituencies did not have ‘an essentially demographic basis’, in breach of the principle of equal suffrage.
Whilst it was incumbent upon the legislature, under Article 6 of the Declaration on the Rights of Man and the Citizen of 1789, taken together with Articles 3 and 24 of the Constitution, to change constituency boundaries in order to take into account, whenever necessary, any population changes that may have occurred since the entry into force of the Parliamentary Boundaries Act (Law no. 86-1197) of 24 November 1986, it is not for the Constitutional Council, when ruling, as in the present case, under Article 59 rather than Article 61 of the Constitution, to review the constitutionality of the legislative provisions contained in Table no. 1 annexed to Article L. 125 of the Elections Code. Accordingly, the single complaint submitted by the applicants must be dismissed.”
Article 3
“National sovereignty belongs to the people, who shall exercise it through their representatives and by means of referendum.
No section of the people nor any individual may arrogate to itself, or to himself, the exercise thereof.
Suffrage may be direct or indirect as provided by the Constitution. It shall always be universal, equal and secret.
All French citizens of either sex who have reached the age of majority and who enjoy civil and political rights may vote under the conditions to be determined by law.”
Article 59
“The Constitutional Council shall rule on the proper conduct of the election of deputies and senators in disputed cases.”
Article 61
“Institutional Acts, before their promulgation, and the rules of procedure of parliamentary chambers, before their entry into force, must be referred to the Constitutional Council, which shall rule on their conformity with the Constitution.
To the same end, Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, or sixty deputies or sixty senators.”
Article L. 125 (Law no. 86-825 of 11 July 1986, section 2, Official Gazette of 12 July 1986)
“Constituencies shall be determined in accordance with Table no. 1 annexed to this Code.
Constituency boundaries shall be reviewed, according to population changes, after the second national population census following the previous boundary review.”
Section 7
“Electoral boundaries cannot be redrawn within a period of one year prior to the normal date on which the chambers concerned are to be re-elected.”
“... Section 5 of the Act that has been referred to the Constitutional Council for review provides as follows: ‘Within six months following the publication of this Act, the government shall be authorised to draw up, by ordinance, Table no. 1 annexed to the Elections Code. The number of constituencies created in each département shall be set out in the table annexed to this Act. Save in the case of départements whose territory includes islands or enclaves, constituencies shall consist of contiguous areas. In addition, with the exception of constituencies to be created in the cities of Paris, Lyons and Marseilles and in départements which include one or more cantons not consisting of a contiguous area, or of which the population, according to the last national population census of 1982, exceeds 40,000, the constituency boundary shall follow the cantonal boundary. Population discrepancies between constituencies shall be permitted in order to accommodate public-interest imperatives, but in no event may the population of a constituency differ by more than 20% from the average population of constituencies in the same département.’
...
As to the complaint relating to the principle of equal suffrage:
... The parties making the referral argued that section 5 of the Act had infringed the principle of equal suffrage as enshrined in Article 3 of the Constitution. Section 5 referred, in its second paragraph, to a table annexed to the text of the Act by which it was established that each département was required to return at least two deputies to Parliament; this, they contended, had entailed very significant discrepancies in representation. The infringement of the principle of equal suffrage had been aggravated by the fact that within any given département the population of a constituency could vary, upwards or downwards, by up to 20% of the average constituency population. Such a considerable variation could not be justified by public-interest imperatives, especially as in départements where one or more cantons had a population of more than 40,000 the electoral boundaries did not even have to follow cantonal boundaries. The discrepancies in representation authorised by the law were, in their submission, excessive in view of the nature of the election.
... Under the first paragraph of Article 2 of the Constitution, the Republic ‘shall ensure the equality of all citizens before the law, without distinction of origin, race or religion’; Article 3 of the Constitution provides, in its first paragraph, that ‘national sovereignty belongs to the people, who shall exercise it through their representatives and by means of referendum’, and, in its third paragraph, that suffrage ‘shall always be universal, equal and secret’. The second paragraph of Article 24 of the Constitution provides: ‘The deputies to the National Assembly shall be elected by direct suffrage.’ Article 6 of the Declaration on the Rights of Man and the Citizen proclaims that the law ‘must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.’
... It transpires from those provisions that the National Assembly, whose members are returned by direct universal suffrage, must be elected on an essentially demographic basis; whilst the legislature may take account of public-interest imperatives as a result of which that fundamental rule carries less weight, it can do so only to a limited extent.
... In stipulating that each département should be represented by at least two deputies, the legislature sought to ensure that a close relationship would be maintained between the elected representative for a constituency and his or her constituents. Having regard, firstly, to the distribution of the population throughout French territory as recorded in the most recent national census to date, and, secondly, to the very limited number of départements for which the choice thus made gives the electorate a more favourable degree of representation, the provisions of section 5(2) of the Act are not, per se, contrary to the Constitution. They do imply, however, that any resulting inequalities of representation may not be significantly increased by the application of the rules governing the fixing of electoral boundaries within any given département.
... As regards the fixing of electoral boundaries within any given département, section 5(4) of the Act authorises the government, acting by ordinance, to vary the size of a constituency electorate, upwards or downwards, by up to 20% of the average electorate in the département, the legislature’s intention being to allow public-interest imperatives to be accommodated. As is apparent from section 5(3), the permitted margin reflects the need for constituency boundaries to follow cantonal boundaries. In the course of parliamentary debate the government explained that a further purpose of such discrepancy in representation was, in cases where cantonal boundaries were not followed, to take account of the ‘natural realities constituted by certain geographical entities’ and ‘the unity between them’.
... Whilst per se the derogations from the principle of equal suffrage cannot be attributed, in each case, to a manifest error of judgment, they may in the aggregate lead to the creation of situations where that principle is breached. Consequently, the provisions of section 5(3) and (4) of the Act must be construed as follows: it should be considered, firstly, that the possibility of not following cantonal boundaries in départements where one or more cantons do not have contiguous territory or have a population of over 40,000 can only apply to the cantons in question; secondly, the application of the maximum variance provided for in section 5(4) must be reserved for exceptional and duly substantiated cases; further, that possibility may be used only to a limited extent and must be based, in each individual case, on specific public-interest imperatives; lastly, the fixing of constituency boundaries must never be carried out arbitrarily. Any other interpretation would be unconstitutional.
...
Strictly subject to the interpretation set out above, the Parliamentary Elections Act, authorising the government to fix parliamentary constituency boundaries by ordinance, is not contrary to the Constitution.”
“... The National Assembly, whose members are returned by direct universal suffrage, must be elected on an essentially demographic basis. Whilst the legislature may take account of public-interest imperatives as a result of which that fundamental rule carries less weight, it can do so only to a limited extent and according to specific imperatives.
... It transpires from the Act under review that, save where geographically impossible, constituencies consist of contiguous territories. Cantonal boundaries have generally been followed. The territory of non-contiguous cantons and of cantons with a population of over 40,000 has been split into more than one constituency only in a limited number of cases. The discrepancy between the size of any given constituency electorate and the average electorate in the same département is not excessively disproportionate.
... However, the deputies who made the first referral argued that the fixing of boundaries as provided for in the Act, whilst not fundamentally open to criticism from a demographic point of view, was nevertheless arbitrary.
... Regardless of the pertinence of certain criticisms by the deputies who made the first referral against the fixing of electoral boundaries as provided for in the Act, it does not appear, as matters stand, and taking into account the variety and complexity of local situations that may give rise to different solutions whilst abiding by the same demographic rule, that the choices made by the legislature are in manifest breach of constitutional requirements.
... The Parliamentary Boundaries Act is not unconstitutional.”
“Having completed its review of disputes arising from the last parliamentary elections, the Council has the following observations to make, indicating the changes that it finds desirable in four areas.
(I) As regards the general conditions in which the elections were held:
From the experience of the 2002 elections it can be concluded that legislative improvements should be enacted.
The first matter is the fixing of electoral boundaries. The current boundaries are the result of the Parliamentary Boundaries Act (Law no. 86-1197) of 24 November 1986. They were based on the results of the national census of 1982. Since then two national censuses, carried out in 1990 and 1999, have revealed representation discrepancies that are somewhat at odds with the provisions of Article 6 of the 1789 Declaration taken together with Articles 3 and 24 of the Constitution. It is thus incumbent upon the legislature to modify those boundaries, as it is apparently preparing to do for the forthcoming elections to the Senate.”


ITEMID: 001-96007
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF KART v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
JUDGES: Alvina Gyulumyan;András Sajó;András Baka;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vladimiro Zagrebelsky
TEXT: 8. The applicant was born in 1954 and lives in Ankara.
9. In the parliamentary elections of 3 November 2002, as a member of the People’s Republican Party (CHP), he was elected member of parliament (MP) for the Konya constituency to the Grand National Assembly of Turkey (“the National Assembly”).
10. Prior to his election he practised as a lawyer in Konya and, in the course of his professional activities, two sets of criminal proceedings were brought against him, one for insulting a lawyer and the other for insulting a public official.
11. Once elected as an MP he enjoyed parliamentary immunity.
12. On 23 December 2002 the Karapınar public prosecutor applied to the General Directorate of the Ministry of Justice to have the applicant’s parliamentary immunity lifted for the purposes of the criminal proceedings against him for insulting a lawyer.
13. On 17 January 2003 the General Directorate of the Ministry of Justice transmitted the request to the Prime Minister’s Office.
14. On an unspecified date examination of the matter of the lifting of the applicant’s parliamentary immunity in the proceedings concerning the insulting of a lawyer was referred to the National Assembly’s joint committee (“the joint committee”) under Rules 131 et seq. of the Rules of Procedure of the National Assembly. The joint committee decided to stay the proceedings until the dissolution of the 22nd Parliament.
15. The applicant challenged that decision. His file was then sent before the plenary Assembly of the National Assembly (“the plenary Assembly”).
16. On 11 April 2003 the Konya Assize Court (“the Assize Court”) adopted a decision suspending the criminal proceedings against the applicant for insulting a public official, by virtue of Article 83 of the Constitution and Article 253 § 4 of the Code of Criminal Procedure.
17. On 4 December 2003 the Assize Court transmitted the case file to the Ministry of Justice with a view to having the applicant’s parliamentary immunity lifted.
18. On 23 December 2003 the Department of Criminal Affairs of the Ministry of Justice referred the matter to the Prime Minister.
19. The Prime Minister’s Office transmitted the case file to the joint committee.
20. On 28 May 2004, after noting that the applicant had requested the lifting of his immunity, the joint committee decided, in view of the nature of the charges, to stay the proceedings against him for insulting a public official until the end of his term of parliamentary office. It transmitted its decision to the plenary Assembly.
21. When the plenary Assembly met on 8 December 2004 the joint committee’s report was read and appended to the minutes of the meeting.
22. On 15 December 2004 the applicant challenged the joint committee’s decision. In his pleadings he made the point that parliamentary immunity had not been introduced to render MPs unaccountable or immune from punishment, but to allow them to discharge their duties in all freedom and independence and without fear. Unlike non-liability, he argued, inviolability was by nature a relative and temporary privilege. However, the scope of the inviolability, the procedure for lifting it and the shortcomings in its implementation had undermined due respect for the National Assembly. The applicant added that it was unacceptable in a society governed by the rule of law that an arrangement originally intended to help MPs to discharge their duties should be transformed into a personal privilege.
23. On 7 February 2005 the Secretariat of the Speaker’s Office informed the applicant that the two files concerning the lifting of his immunity had been placed on the agenda of the plenary Assembly.
24. At the meeting of the plenary Assembly on 16 February 2005 the applicant once again asked to be allowed to avail himself of his right to be judged in a fair trial and requested that the obstacles to his exercise of that right be removed.
25. The applicant was re-elected as a CHP party MP for the Konya constituency in the parliamentary elections of 22 July 2007.
26. On 8 January 2008 the Speaker of the National Assembly sent him a letter informing him of progress with the procedures for lifting his parliamentary immunity.
The relevant passages read as follows:
“... during the 22nd Parliament [2002-07] 299 files concerning immunity were forwarded to the joint committee. In 252 cases the committee decided to stay the proceedings until the next dissolution. In 226 cases that decision was challenged. The files corresponding to those cases were placed on the plenary Assembly’s agenda for examination. However, the plenary Assembly did not examine them.
During the 22nd Parliament two files concerned your immunity. The first, file no. 3/176, concerned the proceedings brought against you by the Konya-Ereğli public prosecutor for insulting a lawyer; the second, file no. 3/453, concerned the proceedings before the Konya Assize Court for insulting a public official. In both cases the joint committee decided to stay the proceedings until the end of your term of office. Following your appeal, the files were placed on the plenary Assembly’s agenda but have not been examined.
In this 23rd Parliament [which started in 2007] 77 files concerning the lifting of immunity remain pending before the joint committee. Two of those files are in your name; they were given the numbers 3/107 and 3/129 following your re-election on 22 July 2007. Since the beginning of this Parliament all the files, including yours, have been sent before three preparatory committees set up by the joint committee. These committees started work on 27 December 2007 ... They are to announce their decisions within a month of that date.”
27. On 23 and 24 January 2008 the applicant filed two defence memorials against the suspension of the two sets of criminal proceedings against him. In them he repeated his wish to be allowed to exercise his right to a fair trial.
28. The reports of the joint committee recommending a stay of the criminal proceedings against the applicant until the end of his term as an MP were placed on the National Assembly’s agenda of 15 January 2009, together with the applicant’s objections to those findings.
29. The matter is still pending before the Assembly.
30. Article 83 of the Turkish Constitution, on the subject of parliamentary immunity, reads as follows:
“Members of the Turkish Grand National Assembly shall not be liable for their votes and statements in the course of the Assembly’s work, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Bureau for that sitting, for repeating or revealing these outside the Assembly.
A member who is alleged to have committed an offence before or after election shall not be arrested, questioned, detained or tried unless the Assembly decides otherwise. This provision shall not apply in cases where a member is caught in the act of committing a crime punishable by a heavy penalty and in cases subject to Article 14 of the Constitution if an investigation has been initiated before the election. However, in such situations the competent authority shall notify the Turkish Grand National Assembly immediately and directly.
The execution of a criminal sentence imposed on a member of the Turkish Grand National Assembly either before or after his election shall be suspended until he ceases to be a member; the statute of limitations does not apply during the term of office.
Investigation and prosecution of a re-elected deputy shall be subject to whether or not the Assembly lifts immunity in the case of the individual involved.
Political party groups in the Turkish Grand National Assembly shall not hold discussions or take decisions regarding parliamentary immunity.”
31. Article 85 of the Constitution reads as follows:
“If the parliamentary immunity of a deputy has been waived ..., the deputy in question or another deputy may, within seven days from the day of the decision of the Grand National Assembly of Turkey, appeal to the Constitutional Court for the decision to be annulled on the grounds that it is contrary to the Constitution, law or the rules or procedure of the Turkish Grand National Assembly. The Constitutional Court shall decide on the appeal within fifteen days.”
32. The Rules of Procedure of the Grand National Assembly of Turkey provide, inter alia:
“Immunity
Requests to lift immunity and the committee competent to examine them
Rule 131: requests for the lifting of a member’s parliamentary immunity shall be transmitted by the Speaker’s Office to the joint committee, composed of members of the constitutional and judicial committees. ...
The preparatory committee and its hearings
Rule 132: the Chair of the joint committee shall appoint a preparatory committee composed of five sworn members to examine files concerning immunity. ...
This committee shall examine all the documents and, if necessary, hear the member concerned; it shall not hear witnesses.
The preparatory committee shall submit its report within one month of being convened.
The joint committee shall finalise the report within one month.
The report of the joint committee
Rule 133: the joint committee shall examine the report and its appendices [submitted by] the preparatory committee.
The joint committee shall decide whether to lift the member’s immunity or to stay the proceedings until the end of the term of parliamentary or ministerial office.
If the joint committee’s report recommends lifting immunity or if an objection is received within the conditions set out in paragraph 3, the report shall be examined by the plenary Assembly.
If the proceedings have been stayed and that decision is not overturned by the plenary Assembly, no action may be taken against the member concerned until the end of his or her term of parliamentary office, even if the legislature has been renewed.
The rights of the defence
Rule 134: When a request to lift a member’s immunity has been received, the member concerned may, if he wishes, defend himself or be defended by another member before the preparatory committee, the joint committee and the plenary Assembly.
The matter shall be decided on the evidence if a member who has asked to speak in his defence fails to answer the invitation to do so.
In any event, the defence shall have a say.
The mere fact that a member requests permission to waive his or her immunity shall not suffice.”
33. On 21 March 1994 the Turkish Constitutional Court adopted a series of judgments in cases concerning the lifting of several MPs’ parliamentary immunity. Those cases gave the Constitutional Court an opportunity to clarify the scope of parliamentary immunity. The relevant passages of the judgments read as follows:
“(a) Meaning of non-liability and parliamentary immunity
All democratic countries have granted the members of their legislative assemblies certain privileges and immunities in order to allow them to perform their legislative tasks properly. Quite evidently, the aim of granting the members of legislative assemblies a different status from that enjoyed by other citizens is not to make them a privileged group who are above the law.
Parliamentary immunity is not an aim; it is a means of enabling MPs to fulfil the nation’s wishes in full by perfectly reflecting the wishes of the people within the Assembly.
Even though Article 83 of the Constitution is entitled ‘Parliamentary Immunity’, it actually establishes two institutions: parliamentary non-liability and parliamentary immunity. The first paragraph of the Article explains that the members of the Grand National Assembly of Turkey are not liable for their votes and statements in the course of the Assembly’s work, for the views they express before the Assembly or, unless the Assembly decides otherwise on the proposal of the Speaker, for repeating or revealing these outside the Assembly.
The second paragraph of the Article stipulates that a member who is alleged to have committed an offence before or after election may not be arrested, questioned, detained or tried unless the Assembly decides otherwise. The only cases where this provision does not apply are those where a member is caught in the act of committing a crime punishable by a heavy penalty, provided that proceedings were initiated before the election, and cases subject to Article 14 of the Constitution.
Article 83 of the Constitution does not specify on what grounds immunity may be lifted, and the Rules of Procedure of the Assembly do not cover the subject. That does not mean that the legislature has a free hand in the matter. The rationale for immunity and the way in which it has developed over the years show that Parliament’s powers concerning the lifting of immunity are not absolute but limited. Furthermore, the fact that immunity has a place in the Constitution means that the rules and aims of immunity must be defined in the light of the rules and aims of the Constitution. There is no doubt that the intention, when immunity was provided for in Article 83, was to allow those responsible for legislative duties to carry them out in the knowledge that they were safely sheltered, and rightly so, from all worry and pressure. In other words, the aim of parliamentary immunity is to ensure that MPs are not prevented, even temporarily, from fulfilling their functions by arbitrary criminal proceedings. So the powers of the legislature in the matter are limited by the purpose for which immunity was institutionalised in the Constitution.
...
Provision has been made for decisions of the Grand National Assembly of Turkey concerning the lifting of immunity to be scrutinised by the Constitutional Court with regard to their conformity not only with the Constitution but also with the Rules of Procedure ...
When such decisions of the Grand National Assembly of Turkey are scrutinised, attention must be paid to the seriousness of the accusation and whether or not it is politically motivated. In addition, the decision must be in conformity with the rationale behind immunity as a constitutional institution.
In criminal proceedings an MP whose parliamentary immunity has been lifted is like any other citizen. He enjoys all the guarantees set out in the Constitution and laws of the Republic of Turkey. All the principles that apply to citizens likewise apply to him. He may, for example, be taken into police custody, questioned, detained and, to all intents and purposes, subjected like any other citizen to all the applicable procedural rules. ...”
34. Under Article 107 of the old Criminal Code enshrined in Law no. 765 of 1 March 1926:
“If the opening of proceedings is subject to authorisation, adoption of a decision or the resolution of a problem pending before another body ..., the running of time for the purposes of limitation shall be suspended until such authorisation is obtained, such decision adopted or such problem resolved.”
35. Law no. 5237 on the new Criminal Code was passed on 26 September 2004 and published in the Official Gazette on 12 October 2004. Article 67 of the Code provides:
“(1) When the investigation or prosecution depend on authorisation, adoption of a decision or the necessary resolution of a problem pending before another body, the running of time for the purposes of limitation shall be suspended until such authorisation [is granted], such decision adopted or such problem resolved ...
(2) Where an offence has been committed, the running of time shall be suspended from the time when:
(a) the prosecutor questions or takes a statement from the suspect or the accused;
(b) a decision is taken to remand the suspect or the accused in custody;
(c) an indictment for the offence is issued;
(d) a conviction is pronounced, even if it concerns only some of the accused parties.
(3) A suspension of limitation causes time to begin to run again. Where there is more than one ground for suspension of limitation, time begins to run again from the date of the last event triggering suspension ...”
36. Under Article 253 § 4 of the old Code of Criminal Procedure enshrined in Law no. 1412 of 4 April 1929, when the criminal proceedings, and therefore the trial, are subject to a condition precedent and it is established that the condition has not been met, a decision to stay the trial is adopted until the condition has been met.
On 4 April 2004 a new Code of Criminal Procedure was introduced.
37. On 29 January 2008 the Secretariat of the National Assembly took stock of the number of cases where parliamentary immunity had been lifted since 1991. It found that the National Assembly had lifted the parliamentary immunity of seventeen MPs in the course of the 19th, 20th and 21st Parliaments.
According to the lists and information provided by the parties, during the 22nd Parliament 299 files concerning the lifting of immunity were pending before parliamentary bodies, but no decisions to lift immunity were taken. Since the start of the 23rd Parliament, 315 files concerning the lifting of immunity have apparently been pending before the National Assembly.
38. Article 40 of the Statute of the Council of Europe (5 May 1949) provides:
“a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative [Parliamentary] Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions.”
39. The General Agreement on Privileges and Immunities of the Council of Europe (2 September 1949) includes the following provisions:
“Representatives to the Consultative [Parliamentary] Assembly and their substitutes shall be immune from all official questioning and from arrest and all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.”
“During the sessions of the Consultative [Parliamentary] Assembly, the representatives to the Assembly and their substitutes, whether they be members of parliament or not, shall enjoy:
a. on their national territory, the immunities accorded in those countries to members of parliament;
b. on the territory of all other member States, exemption from arrest and prosecution.
This immunity also applies when they are travelling to and from the place of meeting of the Consultative [Parliamentary] Assembly. It does not, however, apply when representatives and their substitutes are found committing, attempting to commit, or just having committed an offence, nor in cases where the Assembly has waived the immunity.”
40. The Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (6 November 1952) provides:
“The provisions of Article 15 of the Agreement shall apply to representatives to the [Parliamentary] Assembly, and their substitutes, at any time when they are attending or travelling to and from meetings of committees and sub-committees of the Consultative [Parliamentary] Assembly, whether or not the Assembly is itself in session at such time.”
“Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.”
41. In its Resolution 1490 (2006) on the Interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe, the Parliamentary Assembly of the Council of Europe stated:
“1. The Parliamentary Assembly refers to its Resolution 1325 (2003) and Recommendation 1602 (2003) on immunities of members of the Parliamentary Assembly, which underlined that immunities are granted in order to preserve the integrity of the Assembly and to safeguard the independence of its members in exercising their European office.
...
8. It resolves to interpret Article 15.a as follows: regardless of the national regime of immunity, Assembly representatives or substitutes shall be protected against prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.
9. The Assembly also considers that it is appropriate for the relevant Assembly organs, when examining requests for the waiver of immunity and for the defence of immunity of its members, to question whether the competent national authorities have respected the European Convention on Human Rights as interpreted by the European Court of Human Rights and other relevant Council of Europe legal instruments and texts which the respective countries have ratified or accepted. The Assembly should express its concern when Council of Europe norms have been obviously disregarded in respect of one of its members.
...
11. Consequently the Assembly decides to:
11.1. add the following paragraph after paragraph 6 in Rule 64 of the Assembly’s Rules of Procedure:
‘a. When dealing with requests for the waiver of the Council of Europe immunity, or with requests to defend that immunity of an Assembly member, the competent Assembly bodies shall interpret Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe as follows. Assembly representatives or substitutes are immune from prosecution and arrest in the exercise of their functions as Assembly members or when travelling on Assembly business, whether this is inside or outside of their national territory. If they are not active within this meaning or not travelling on Assembly business, the national regime shall apply within their country.
b. The terms ‘in the exercise of their functions’ include all official duties discharged by Assembly representatives and substitutes in the member States on the basis of a decision by a competent Assembly body and with the consent of the appropriate national authorities.
c. In case of doubt, the Bureau of the Assembly shall decide if Assembly members’ activities took place in the exercise of their functions.’”
42. Article 10 of the Protocol on Privileges and Immunities of the European Communities (8 April 1965) provides:
“During the sessions of the Assembly, its members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their Parliament;
(b) in the territory of any other member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the Assembly.
Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the Assembly from exercising its right to waive the immunity of one of its members.”
43. Rule 6 of the Rules of Procedure of the European Parliament, concerning the waiver of parliamentary immunity, states:
“1. In the exercise of its powers in respect of privileges and immunities, Parliament shall seek primarily to uphold its integrity as a democratic legislative assembly and to secure the independence of its members in performance of their duties.
2. Any request addressed to the President by a competent authority of a member State that the immunity of a member be waived shall be announced in Parliament and referred to the committee responsible.
3. Any request addressed to the President by a member or a former member to defend privileges and immunities shall be announced in Parliament and referred to the committee responsible.
The member or former member may be represented by another member. The request may not be made by another member without the agreement of the member concerned.
4. As a matter of urgency, in circumstances where a member is arrested or has his freedom of movement curtailed in apparent breach of his privileges and immunities, the President, after having consulted the chairman and rapporteur of the committee responsible, may take an initiative to assert the privileges and immunities of the member concerned. The President shall communicate his initiative to the committee and inform Parliament.”
44. Parliamentary immunity is not a homogeneous notion. Most European states recognise two categories of immunity for parliamentarians: firstly, the “non-liability” of parliamentarians in respect of judicial proceedings for opinions expressed and votes cast in the discharge of their parliamentary duties; secondly, their “inviolability” or “immunity in the strict sense”, shielding them from all arrest, detention or prosecution for offences unrelated to their parliamentary duties without the consent of the Chamber to which they belong. This comparative law study focuses on the latter aspect of parliamentary immunity (see the Venice Commission’s Report on the regime of parliamentary immunity, 1996).
45. The precise scope of the inviolability varies considerably from one country to another. The very nature of this aspect of immunity results in a wide array of legal approaches to its implementation. In some States there is no such institution (the Netherlands, San Marino). In others its scope is very limited. For example, in the United Kingdom inviolability covers civil matters only and MPs enjoy no particular protection in criminal matters and are treated like any other individual. In Ireland and Norway parliamentary inviolability serves to prevent MPs from being arrested during sessions or on their way to or from Parliament. It therefore affords them limited protection.
46. That said, most of the States Parties to the Convention grant their MPs immunity from criminal prosecution during their term as MPs that goes beyond the exercise of parliamentary functions (Albania, Austria and Germany – if the act does not clearly fall outside the ambit of their political activities – and Cyprus, Greece, Hungary, Lithuania, Poland, Russia, Serbia, Spain and Switzerland) and/or protection against imprisonment or deprivation of liberty (arrest or detention in all those countries which provide for immunity from prosecution, as well as Belgium, France, Georgia, Portugal and Romania). In certain cases MPs are protected from body searches, house searches and interception of their communications (Georgia, Hungary, Italy, Romania and Switzerland). Such proceedings or measures may be executed only with the consent of the assembly to which the MP belongs, except in Cyprus, where such decisions lie with the courts.
47. In several States the scope of inviolability has been restricted, as witnessed by some recent constitutional reforms. In France, for example, since the constitutional reform of 1995, the Chamber’s authorisation is no longer necessary for criminal proceedings to be brought, but only for detention, arrest and other judicial supervision measures. A similar change came about in Italy when Constitutional Law no. 3 of 29 October 1993 did away with the need for the prior authorisation of Parliament in order for criminal proceedings to be brought against an MP. In Romania, since the constitutional reform of 2003, senators may be placed under judicial investigation or criminal proceedings brought against them for acts not connected with votes cast or political opinions expressed in the course of their duties as senators.
48. In Germany’s Bundestag the practice is generally for a new parliament to lift immunity from prosecution for all offences (with the exception of defamation of a political character) at the start of the parliamentary term. The aim of this is to protect the reputation of each MP, by ensuring that they attract less media attention if proceedings are brought against them.
49. As to the scope of parliamentary inviolability ratione materiae, that is to say the acts it covers, there is a general tendency in the States Parties to the Convention for cases of flagrante delicto to be excluded. In such cases the prior authorisation of the Chamber concerned is not required, but even this does not necessarily prevent Parliament from examining the matter and subsequently requesting the suspension of the proceedings or the custodial measures (Georgia and Romania, for example). In some countries the law excludes certain types of act from inviolability, or the criterion may be the severity of the penalty incurred (the Portuguese Constitution excludes, in certain circumstances, deliberate offences punishable with imprisonment for over three years).
50. The duration of parliamentary inviolability also varies from one country to another. Some countries extend parliamentary immunity to criminal proceedings brought prior to the MP’s election (Belgium, Germany, Hungary, Italy, Portugal and Spain). In other countries, even if parliamentary authorisation is not required in order for proceedings initiated prior to the MP’s election to be continued, Parliament may, of its own motion or at the request of the interested party, request the suspension of the proceedings or the waiving of restrictive measures during the MP’s term of office (France, Poland and Switzerland).
51. Parliamentary immunity may be lifted in most countries. The procedure for lifting immunity is generally the same. It is usually provided for in the Chamber’s Rules of Procedure. It is set in motion by a proposal or a request for authorisation by the competent public authority (in most cases the Principal State Prosecutor), the injured party or the parliamentarian concerned. The request is transmitted to the Speaker of the Parliament, either directly or in certain cases through another authority (the Minister of Justice, the Prime Minister), then examined by a special or ad hoc parliamentary committee, which gives an opinion after hearing the MP concerned. It is then for the full Chamber to decide, with or without a debate, in private or in public, whether or not to lift immunity. The possibility of appealing against a decision of the Chamber to lift immunity exists in very few countries (Austria and Germany).
52. The possibility for MPs to waive their own parliamentary immunity is not widespread (Poland and Switzerland) and is sometimes limited to minor offences (summary offences in Hungary) or to specific offences (defamation in Ireland and the United Kingdom). Under Poland’s Constitution MPs have the right to consent to criminal proceedings. In Switzerland the Federal Assembly Act gives MPs the right to consent in writing to be prosecuted or arrested.
53. In most of the Contracting States no provision is made for MPs to forgo their immunity of their own free will because immunity is a privilege granted not to MPs on an individual basis but to Parliament, to guarantee its smooth operation. In France provisions governing immunity are traditionally a matter of public policy and MPs cannot renounce it. Any act that violates parliamentary immunity is considered null and void. The question of immunity must be raised by a judge. A similar approach has been adopted in the European Parliament, where renunciation of immunity has no legal effect.
54. This comparative presentation does not reveal any uniform pattern of existing parliamentary practice. It is worth noting, however, that a majority of European countries have recognised parliamentary immunity and incorporated it in their constitutional systems as an essential factor in the smooth functioning of the legislature.
55. There are nevertheless marked differences in the nature and scope of the protection inviolability offers MPs. They reflect the different political and historical experiences of the States, and often illustrate the needs that underlie inviolability. It would appear that the scope of this privilege, which is considered as an inextricable part of the separation of powers, the autonomy of Parliament or the protection of the parliamentary opposition, is defined in each State in keeping with the degree of autonomy necessary for Parliament to be able to fulfil its duties.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82414
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: PARKES and BOSHER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants, Mr Neil Anthony Parkes and Mr Richard Bosher, are British nationals who were born in 1960 and 1957. The latter lives in Surrey. They were represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 2 June 2000, leaving two children born in 1993 and 1997. His claim for widows’ benefits was made on 21 August 2000 and was rejected on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant’s wife died on 8 December 2000, leaving two children born in 1991 and 1993. His claim for widows’ benefits was made on 5 March 2001 and was rejected on 6 April 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-67911
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KIRYANOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Aleksandr Vladimirovich Kiryanov, is a Russian national who was born in 1966 and lives in Taganrog. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1998 the applicant applied to a bank for a low-interest loan to which he was allegedly entitled under the Law on Veterans. His application was refused on the grounds that the implementation of the above law required a Government's directive on the matter, which had never been issued.
The applicant challenged the Government's failure to issue the directive in question.
On 17 November 1998 the Taganrog Town Court of the Rostov Region declared the Government's failure to issue the directive unlawful and required it to do so within one month.
As submitted by the Government, on 10 December 1998 the same court examined another claim brought by the applicant against the Ministry of Finance of the Russian Federation and the Ministry of Finance of the Rostov Region. He sought a low-interest loan to be provided to him by the authorities. The court dismissed his claim having found that the right to a low-interest loan as set out in the Law on Veterans was not directly enforceable, and could not be implemented in the absence of a Government directive.
On 5 April 2004, after the case was communicated to the Government, the President of the Rostov Regional Court ordered supervisory review to be conducted over the judgment of 10 December 1998, and it was quashed in view of the allegedly unlawful composition of the court.


ITEMID: 001-90583
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ARAT AND OTHERSv. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1975, 1970, 1972, 1967, 1963, 1972, 1961 and 1972 respectively, and live in the town of Şölen.
6. The applicants were all employed as manual workers by the Şölen Town Council (hereafter “the Town Council”) until their contracts of employment were terminated by the Town Council on 29 April 1999.
7. On various dates in 1999 the applicants brought proceedings before the Ergani Civil Court of First Instance against the Town Council and claimed their unpaid salaries and other pecuniary rights to which they were entitled under the applicable legislation.
8. The applicants' claims were partly accepted by the Ergani Civil Court in its decisions adopted on 3 November 1999 and 30 December 1999.
9. Between December 1999 and March 2000 the applicants initiated enforcement proceedings against the Town Council and sought to obtain the sums awarded to them by the Ergani Civil Court together with statutory interest.
10. The sums claimed by the applicants were as follows:
11. In the course of the enforcement proceedings, the applicants unsuccessfully attempted to recover their monies from the Town Council's bank accounts at the State owned Ziraat Bank. The bank refused to make the payments on the ground that the monies deposited there by the Town Council had been allocated to a special fund earmarked for public services. Following this, the Town Council transferred all their monetary assets to the special fund to circumvent the Ergani Civil Court's decisions.
12. At the time of the adoption of the present judgment the applicants' attempts at recovering their monies were still continuing.
13. For a summary of the relevant domestic law and practice, see Demirhan and Others v. Turkey, nos. 28152/02, 28155/02 and 28156/02, §§ 16-18, 5 June 2007.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1