ITEMID: 001-4820
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: YILDIRIM v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Turkish national, born in 1956 and living in Eferding in Austria. He is represented before the Court by Mr Hans Leitner, a lawyer practising in Wels.
A.
On 17 July 1989 the applicant married an Austrian national before the competent authorities in Turkey. At the time of their marriage his wife was already pregnant and the applicant knew that he was not the father of the future child. After their marriage, the applicant and his wife moved to Austria. They separated in September 1989.
On 15 January 1990 the applicant's wife gave birth to a daughter. As the applicant and his wife were still married, the child was deemed to be their legitimate daughter in accordance with section 138 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) and was entered in the birth register as such. The applicant submits that he was not aware of this legal presumption or the fact that the husband can only bring an action to contest the legitimacy of a child born in wedlock within a one-year time-limit after its birth, while after that only the Public Prosecutor can do so. Moreover, he claims that his wife had assured him that the name of the natural father had been entered in the birth register.
In 1991 the applicant and his wife filed a petition for divorce by consent with the Wels District Court. The applicant submits that it was only in the course of the divorce proceedings that he became aware of the fact that the child was considered to be his daughter. By then the one-year time-limit for contesting the child's legitimacy had already expired.
On 4 November 1991 the applicant, referring to section 158 of the Civil Code, requested the Wels Public Prosecutor's Office (Staatsanwaltschaft) to institute proceedings to contest the legitimacy of the child.
On 11 November 1991 the Public Prosecutor's Office heard the applicant's wife. She stated that she had not had any sexual relationship with the applicant before their marriage and that Mr. T.M. was the child's father. T.M. was questioned by a German court under letters rogatory. He conceded having had a sexual relationship with the applicant's wife before her marriage, but claimed that he was not the only one.
On 21 January 1993 the Wels Public Prosecutor's Office informed the applicant that it did not see any reason to bring an action to contest the legitimacy of the child. Such an action would not be in her interests as T.M., whom the mother considered to be the child's natural father, had also denied his paternity. As the action could result in the finding that the applicant was not the child's father, she risked losing her maintenance claim against him, and it appeared uncertain in the circumstances whether or not it would ever be possible to determine who her natural father was.
On 8 April 1993 the Linz Senior Public Prosecutor's Office (Oberstaatsanwaltschaft) dismissed the applicant's request to instruct the Public Prosecutor's Office to file an action to contest the legitimacy of the child. It confirmed the Public Prosecutor's assessment of her interests and added that the said action was not required by any public interest as the applicant had already known when he married that his wife was pregnant with another man's child.
On 12 April 1994 the Federal Ministry of Justice (Bundesministerium für Justiz) rejected the applicant's further request to instruct the Public Prosecutor's Office to file an action to deny his paternity, on the ground that the applicant could not claim to have a right to the initiation of proceedings by the Public Prosecutor.
The Ministry noted that the one-year limitation-period during which the husband could lodge an action to contest the legitimacy of a child born in wedlock served the purpose of limiting any uncertainty as regards the status of the child. Thus, it served legal certainty and, as a general rule, the interests of the child. Nevertheless, the legislator had accepted as a consequence that paternity based on the presumption of legitimacy and natural paternity will in some cases not coincide. Following expiry of the time-limit, only the Public Prosecutor could bring such an action if it was required in the interests of the child or in the public interest.
The applicant had argued that the public interest required an action in his case, as he had not been familiar with Austrian law and had therefore failed to comply with the time-limit. However, the Ministry noted that, according to his own submissions, he had known that his wife was pregnant with another man's child when they were married. Given that they separated before the child's birth, he could have been expected to seek legal advice, all the more so as Turkish law contains a similar time-limit for such actions. The applicant had further argued that the action was required in the interests of the child, who had no contact with him and did not regard him as its father. Her maintenance would not be endangered as Austria was a welfare State. In this regard the Ministry found that the Public Prosecutor had rightly assessed the situation. It did not suffice that the child's interests were not endangered; the action had to be required in its interest. This was not the case, as it was by no means sure that eventual paternity proceedings against T.M. would be successful.
On 20 June 1994 the Constitutional Court (Verfassungsgerichtshof) refused to deal with the applicant's complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof).

On 14 December 1995 the Administrative Court rejected the applicant's complaint on the ground that he had no right to appeal. As he had failed to introduce an action within the one-year time-limit, he no longer had any right to contest the child's legitimacy himself. Nor did he have a right to have such proceedings introduced by the Public Prosecutor. The decision was served on the applicant on 20 May 1996.
B. Relevant domestic law
According to section 138 § 1 of the Civil Code a child who is born while its mother is married is presumed to be legitimate. This presumption may only be rebutted by a judicial decision establishing that the child is not the child of the mother's husband.
Section 156 §§ 1 and 2 of the Civil Code provides that the mother's husband may contest the legitimacy of the child within a one-year time-limit, which starts running from the moment when the husband learns about the circumstances which cast doubt on the child's legitimacy, but not before the birth of the child.
Section 158 of the Civil Code provides that, in case the husband has not contested the legitimacy of the child within the one-year time-limit, or in case he has died or his whereabouts are unknown, the Public Prosecutor may contest the legitimacy of the child, if he deems that this is required in the public interest or in the interests of the child or its descendants.


ITEMID: 001-57805
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF CRÉMIEUX v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 6-3;Not necessary to examine Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mr Paul Crémieux, a French citizen born in 1908, is retired and lives at his female companion’s home in Marseilles. At the material time he was chairman and managing director of SAPVIN, a wholesale wine firm, whose head office is in Marseilles.
7. In October 1976, in the course of an investigation into the SODEVIM company, customs officers seized documents relating to business transactions between SAPVIN and foreign firms.
8. Thereafter, from 27 January 1977 to 26 February 1980, the customs authorities carried out eighty-three investigative operations in the form of interviews and of raids on SAPVIN’s head office, on the applicant’s home and at other addresses of his and on the homes of other people, during which further items were seized.
Each of the house searches was made under Articles 64 and 454 of the Customs Code (see paragraphs 19-20 below). They were conducted by officials from the National Customs Investigations Department ("the DNED") in the presence of a senior police officer (officier de police judiciaire); a report was made on each of them and they all led to Mr Crémieux’s being subsequently interviewed.
9. Several such searches were made on 23 January 1979.
One of them began at 7 a.m. at the applicant’s Paris home, in his absence. The customs officers were received by Mr Crémieux’s son; they inspected the office and took away 518 documents, some of which, according to Mr Crémieux, had no connection with the customs investigation. The son initialled the inventory of documents. The applicant, who had arrived at 9.10 a.m., signed the report together with his son; he denied having been able, as the Government maintained, to go through the documents.
Another search began at 8 a.m. at the home of Mr Crémieux’s female companion, whom, the applicant claimed, the DNED officials had followed into the bathroom when she said she wanted to put on a dressing-gown. Numerous personal papers were seized.
Searches were also made of the homes of other people, who had business relations with the applicant and his company.
10. On 24 January and 17 May 1979 Mr Crémieux was questioned by customs officers.
On 16 February 1979 they opened the private strongbox he had at SAPVIN’s head office and took seventeen documents from it.
11. On a complaint by the Mediterranean Interregional Head Office of Customs, the Marseilles public prosecutor’s office began a judicial investigation in respect of Mr Crémieux and seven other people and passed the case to a local investigating judge on 16 June 1981.
12. On 29 November 1982 this judge charged the eight with offences against the legislation and regulations governing financial dealings with foreign countries.
The customs agreed to compound with those charged (see paragraph 23 below) - Mr Crémieux was to pay 1,400,000 French francs (FRF) and SAPVIN FRF 20,000,000 - and the judge accordingly issued a discharge order on 16 June 1987.
13. On 8 August 1983 and 4 and 11 April 1984 Mr Crémieux applied to the Marseilles investigating judge for a declaration that the customs officers’ reports on the facts and on the seizures were null and void.
On 24 April 1984 the judge made an order that the file on the investigation in respect of Mr Crémieux and those charged with him should be sent to the Marseilles public prosecutor for an opinion.
The customs authorities and the public prosecutor’s office submitted that the relevant reports were valid and the house searches lawful.
14. On 22 June 1984 the investigating judge made an order whereby the case was referred directly to the Indictment Division of the Aix-en-Provence Court of Appeal for a decision on the lawfulness of the proceedings (Article 171 of the Code of Criminal Procedure).
15. On 30 July 1984 the Indictment Division held that all the impugned reports were valid.
In the terms set out below, it dismissed an application by Mr Crémieux for a declaration that Articles 454 and 64 of the Customs Code had ceased to have effect in the light of the principles laid down in the Constitutional Council’s decision of 29 December 1983 (Official Gazette (Journal officiel), 30 December 1983, p. 3871):
"Paul Crémieux relied on the fact that in this decision the Constitutional Council held that ‘in order expressly to satisfy the requirements not only of the liberty of the individual and the inviolability of the home but also of the fight against customs evasion, the provisions of Article 89 of the Budget Act 1984 should have been accompanied by provisions and clarifications precluding any improper interpretation or practice and, accordingly, could not, as they stood, be held to be constitutional’.
The Indictment Division, however, cannot rule on the constitutionality of Articles 454 and 64 of the Customs Code in whatever form or context such unconstitutionality is pleaded.
This is because Article 27 of the Criminal Code provides that ‘any judge ... who stays or suspends the application of a statute ...’ shall be guilty of criminal malfeasance in public office."
The Indictment Division did not rule on the issue - raised by the applicant before the investigating judge - whether the disputed customs measures were compatible with Article 8 (art. 8) of the Convention.
16. Mr Crémieux appealed on points of law. In the first of his three grounds he relied on, inter alia, the Convention:
"Violation on account of the refusal to apply Articles 62 and 66 of the Constitution of 4 October 1958 and Article 8 (art. 8) of the Convention ..., violation through improper application of Articles 64 and 454 of the Customs Code and of Article 593 of the Code of Criminal Procedure;
In that the Court of Appeal in the judgment appealed against upheld the validity of the house searches made by customs officers accompanied by a senior police officer (officier de police judiciaire) between 27 January 1977 and 26 February 1980 under Articles 64 and 454 of the Customs Code, and in particular the one made on 23 January 1979 at the applicant’s home;
On the grounds that the Indictment Division cannot rule on the constitutionality of Articles 454 and 64 of the Customs Code in whatever form or context such unconstitutionality is pleaded and that Article 127 of the Criminal Code indeed provides that ‘any judge ... who stays or suspends the application of a statute’ shall be guilty of criminal malfeasance in public office;
Whereas, firstly, Article 66 of the Constitution of 4 October 1958 makes the right of State officials to search the home of an offender subject to prior judicial leave, and Articles 64 and 454 of the Customs Code, which did not provide for any such safeguard, before the promulgation of the Constitution of 4 October 1958, were thus implicitly but necessarily abrogated by the Constitution, which, by Article 62, is directly binding on the courts without that entailing any review of the constitutionality of legislation; and the Indictment Division therefore contravened the aforementioned provisions;
Whereas, secondly, the provisions of Articles 64 and 454 of the Customs Code are incompatible with those of Article 8 (art. 8) of the Convention ..., which are directly binding on national courts, Article 8 (art. 8) providing for the inviolability of the home; and the Indictment Division thus also contravened the provisions of that treaty;
Whereas, in the alternative, Articles 64 and 454 of the Customs Code, assuming that they remained in force after the promulgation of the Constitution of 4 October 1958, require, in accordance with the provisions of the Constitution, that when administrative officials search a person’s home they must have sought and obtained prior judicial leave; and that the report on the house search is null and void unless it mentions that this formality was complied with; on this account likewise the Indictment Division infringed the aforementioned provisions."
17. The Criminal Division of the Court of Cassation dismissed the appeal on 21 January 1985. In relation to the foregoing ground it held:
"Articles 454 and 64 of the Customs Code, as enacted by the Act of 28 December 1966, are legislative in nature and have never been repealed. It is accordingly not within the jurisdiction of the ordinary courts to review their constitutionality. Furthermore, the provisions they contain satisfy the requirements of Article 8 (art. 8) of the Convention ..., paragraph 2 (art. 8-2) of which allows interference by a public authority with an individual’s home where such interference is, inter alia, ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, [and] for the prevention of disorder or crime’."
18. The criminal provisions of customs law in France are treated as a special body of criminal law.
19. Two provisions of the Customs Code are relevant as regards these officials:
"The officials designated below shall be empowered to establish offences against the legislation and regulations governing financial dealings with foreign countries:
1. customs officers;
2. other officials of the Ministry of Finance with the rank of at least inspector;
3. senior police officers (officiers de police judiciaire).
The reports made by senior police officers shall be forwarded to the Minister for Economic Affairs and Finance, who shall refer cases to the prosecuting authorities if he thinks fit."
"The officials referred to in the preceding Article shall be empowered to carry out house searches in any place as provided in Article 64 of this code."
20. When the house search was made (23 January 1979), Article 64 of the Customs Code was worded as follows:
"1. When searching for goods held unlawfully within the customs territory, except for built-up areas with a population of at least 2,000, and when searching in any place for goods subject to the provisions of Article 215 hereinafter, customs officers may make house searches if accompanied by a local municipal officer or a senior police officer (officier de police judiciaire).
2. In no case may such searches be made during the night.
3. Customs officers may act without the assistance of a local municipal officer or a senior police officer
(a) in order to make searches, livestock counts, and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officials may force an entry in the presence of a local municipal officer or a senior police officer."
21. The Budget Acts of 30 December 1986 (section 80-I and II) and 29 December 1989 (section 108-III, 1 to 3) amended Article 64, which now provides:
"1. In order to investigate and establish the customs offences referred to in Articles 414-429 and 459 of this code, customs officers authorised for the purpose by the Director- General of Customs and Excise may make searches of all premises, even private ones, where goods and documents relating to such offences are likely to be held and may seize them. They shall be accompanied by a senior police officer (officier de police judiciaire).
2. (a) Other than in the case of a flagrant offence (flagrant délit), every search must be authorised by an order of the President of the tribunal de grande instance of the locality in which the customs headquarters responsible for the department in charge of the proceedings is situated, or a judge delegated by him.
Against such an order there shall lie only an appeal on points of law as provided in the Code of Criminal Procedure; such an appeal shall not have a suspensive effect. The time within which an appeal on points of law must be brought shall run from the date of notification or service of the order.
The order shall contain:
(i) where applicable, a mention of the delegation by the President of the tribunal de grande instance;
(ii) the address of the premises to be searched;
(iii) the name and position of the authorised official who has sought and obtained leave to make the searches.
The judge shall give reasons for his decision by setting out the matters of fact and law that he has accepted and which create a presumption in the case that there have been unlawful activities of which proof is sought.
If, during the search, the authorised officials discover the existence of a bank strongbox which belongs to the person occupying the premises searched and in which documents, goods or other items relating to the activities referred to in paragraph 1 above are likely to be found, they may, with leave given by any means by the judge who made the original order, immediately search the strongbox. Such leave shall be mentioned in the report provided for in paragraph 2(b) below.
The judge shall take practical steps to check that each application for leave made to him is well-founded; each application shall contain all information in the possession of the customs authorities that may justify the search.
He shall designate the senior police officer responsible for being present at the operations and keeping him informed of their progress.
The search shall be carried out under the supervision of the judge who has authorised it. Where it takes place outside the territorial jurisdiction of his tribunal de grande instance, he shall issue a rogatory letter, for the purposes of such supervision, to the President of the tribunal de grande instance in the jurisdiction of which the search is being made.
The judge may go to the scene during the operation.
He may decide at any time to suspend or halt the search.
The judicial order shall be notified orally to the occupier of the premises or his representative on the spot at the time of the search, who shall receive a complete copy against acknowledgement of receipt or signature in the report provided for in paragraph 2(b) below. If the occupier of the premises or his representative is absent, the judicial order shall be notified after the search by means of a registered letter with recorded delivery. Notification shall be deemed to have been made on the date of receipt entered in the record of delivery.
Failing receipt, the order shall be served as provided in Articles 550 et seq. of the Code of Criminal Procedure.
The time-limits and procedures for appeal shall be indicated on notification and service documents.
(b) Searches may not be commenced before 6 a.m. or after 9 p.m. They shall be made in the presence of the occupier of the premises or his representative; if this is impossible, the senior police officer shall requisition two witnesses chosen from persons not under his authority or that of the customs.
Only the customs officers mentioned in paragraph 1 above, the occupier of the premises or his representative and the senior police officer may inspect documents before they are seized.
The senior police officer shall ensure that professional confidentiality and the rights of the defence are respected in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure; Article 58 of that code shall apply.
The report, to which shall be appended an inventory of the goods and documents seized, shall be signed by the customs officers, the senior police officer and the persons mentioned in the first sub-paragraph of this section (b); in the event of a refusal to sign, mention of that fact shall be made in the report.
Where an on-the-spot inventory presents difficulties, the documents seized shall be placed under seal. The occupier of the premises or his representative shall be informed that he may be present at the removal of the seals, which shall take place in the presence of the senior police officer; the inventory shall then be made.
A copy of the report and of the inventory shall be given to the occupier of the premises or his representative.
A copy of the report and the inventory shall be sent to the judge who made the order within three days of its being drawn up.
3. Customs officers may act without the assistance of a senior police officer
(a) in order to make searches, livestock counts and inspections at the homes of holders of livestock accounts or owners of rights of pasture; and
(b) in order to look for goods which, having been followed and kept under uninterrupted surveillance as provided in Article 332 hereinafter, have been taken into a house or other building, even if situated outside the customs zone.
4. If entry is refused, customs officers may force an entry in the presence of a senior police officer."
22. Article 458 of the Customs Code provides:
"Offences against the legislation and regulations governing financial dealings with foreign countries may be prosecuted only on a complaint by the Minister for Economic Affairs and Finance or one of his representatives authorised for the purpose."
23. The customs authorities may, in certain circumstances, compound with persons being prosecuted for customs offences or for offences against the legislation and regulations governing financial dealings with foreign countries (Article 350 of the Customs Code).
VIOLATED_ARTICLES: 8


ITEMID: 001-102090
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SYLENOK AND TEKHNOSERVIS-PLUS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The first applicant (“the applicant”) was born in 1963 and lives in Chernigiv. The second applicant (“the applicant company”) is a limited liability company owned by the applicant and registered and based in Chernigiv.
6. On 8 January 2001 the applicant was arrested in the street by plain-clothes police officers – Mr S., Mr K., Mr A. and Mr G. The applicant resisted his arrest, being unaware at the time that they were police officers. According to the applicant, during the arrest and later on at the police station he was beaten by the police officers.
7. On 11 January 2001 the applicant was hospitalised with a broken rib, pneumothorax, head concussion and numerous bruises on his body. A forensic medical examination conducted between 11 January and 1 February 2001 revealed numerous bruises on different parts of the applicant's body and brain concussion. At the same time it did not confirm that the applicant had a broken rib.
8. On 18 January 2001 the applicant complained to the Chernigiv City Prosecutor's Office (the CCPO) about the beatings.
9. On 26 January 2001 the CCPO refused to institute criminal proceedings in respect of the applicant's allegations. It noted that according to the explanations of the police officers the applicant had violently resisted his arrest and therefore they had applied force and had used handcuffs. Furthermore, the police investigator Mr Z. had explained that he and other police officers had not committed any unlawful actions involving the applicant at the police station. Therefore, it concluded that the use of force against the applicant had been lawful.
10. On 12 March 2001 the Chernigiv Regional Prosecutor's Office (the CRPO) quashed the decision of 26 January 2001 owing to incompleteness of the investigation and instructed the CCPO to conduct additional investigative actions, including questioning of the applicant and detailed questioning of each police officer involved in the incident about the circumstances of the applicant's arrest and the individual actions of each police officer involved.
11. An additional forensic examination of 16 March 2001 concluded that the applicant had numerous bruises resulting from the application of force 45 to 50 times, a broken rib, chest trauma, pneumothorax and brain concussion.
12. On 5 April 2001 the CCPO refused to institute criminal proceedings on the ground that, as it transpired from the testimony of the police officers involved in the incident, they had applied force lawfully during the arrest and had not used any unlawful means against the applicant in detention.
13. On 17 April 2001 the Chernigiv Desnyansky District Court (the Desnyansky Court) quashed the decision of 5 April 2001 on the ground that the applicant and eyewitnesses to the incident had not been questioned and that the decision of the CCPO had not established the circumstances in which the applicant had received so many injuries. The court ordered criminal proceedings to be instituted in the case.
14. On 17 May 2001 the CCPO started the criminal investigation. Between 28 May and 5 July 2001 seven witnesses were questioned.
15. Between 20 May and 6 December 2001 the applicant was summoned five times by the investigator but failed to appear.
16. On 27 June 2001 the applicant was found guilty of inflicting medium bodily harm on one of the arresting officers – Mr G. This decision was upheld on appeal but quashed in cassation proceedings on 7 September 2004.
17. On 24 July 2001 the criminal proceedings into the infliction of bodily harm on the applicant were suspended for failure to identify the offenders.
18. On 11 December 2001 the CRPO quashed the decision on suspension of the criminal proceedings and they were resumed.
19. On 20 December 2001 the applicant was summoned by the investigator but failed to appear.
20. On 26 December 2001 three witnesses were questioned.
21. On 23 January 2002 the applicant was recognised as a victim in the case.
22. On 28 January 2002 the applicant was questioned as a victim.
23. Between 29 January and 18 March 2002 nine witnesses were questioned.
24. On 4 February 2002 the applicant failed to appear for questioning. On this date and further on 8 and 14 February 2002 the investigator ordered that the applicant be brought before him (примусовий привід).
25. On 14, 15 and 19 March 2002 the cross-examination between the applicant and Mr T., and police officers G., V., Gr., K. and L., took place.
26. On 20 May 2002 the criminal proceedings were suspended for failure to identify the offenders.
27. On 12 May 2003 the CRPO quashed the decision of 20 May 2002 on the suspension of criminal proceedings. The proceedings were resumed.
28. On 16 May 2003 the investigator requested the applicant to provide him with the medical documents concerning the incident in order to conduct an additional forensic medical examination. According to the Government, the applicant did not provide the documents requested.
29. On 25 May 2003 the criminal proceedings were suspended for failure to identify the offenders.
30. On 1 July 2005 the CRPO quashed the decision of 25 May 2003 on the suspension of criminal proceedings. The proceedings were resumed.
31. On 12 July 2005 the investigator ordered that the applicant be brought before him. At this time the applicant was detained in the Chernigiv SIZO in connection with other proceedings.
32. On 14 July 2005 the criminal proceedings were suspended for failure to identify the offenders.
33. On 5 August 2005 the CRPO quashed the decision of 14 July 2005 on the suspension of criminal proceedings. The proceedings were resumed.
34. On 16 and 24 August 2005 the applicant was summoned by the investigator but failed to appear.
35. On 14 September 2005 one witness was questioned.
36. On 15 September 2005 the criminal proceedings were suspended for failure to identify the offenders.
37. On 7 December 2006 the CRPO quashed the decision of 15 September 2005 on the suspension of criminal proceedings. The proceedings were resumed.
38. Between 25 December 2006 and 24 May 2007 ten witnesses were questioned.
39. On 12 June 2007 the CRPO terminated the criminal proceedings for lack of corpus delicti in the actions of the police officers. The CRPO noted that most of the witnesses, owing to the significant lapse of time, could not remember details of the incident and that the original testimonies of the police officers were correct and these officers had acted in accordance with the law.
40. On 11 December 2007 the General Prosecutor's Office (the GPO) quashed the decision of 12 June 2007 and remitted the case for an additional investigation.
41. On 11 February and 4 and 14 March 2008 the applicant was summoned by the investigator but failed to appear.
42. On 14 March 2008 the criminal proceedings were suspended for failure to identify the offenders.
43. On 19 January, 12 February and 26 August 2009 the applicant was summoned by the investigator but failed to appear.
44. Since September 2009, when the applicant was placed on the list of wanted persons in the context of another criminal case in which he was a defendant, the applicant has failed to appear on summons of the investigator.
45. On 5 March 2010 the CRPO received the medical documents from the applicant and on 9 March 2010 the forensic medical examination was ordered.
46. On 9 June 2004 the Chernigiv Commercial Court awarded the applicant company (from the State budget) 14,240.69 Ukrainian hryvnias (UAH) in damages, UAH 142.41 in fees and UAH 118.00 in costs and expenses. On 1 September 2004 the judgment became final and on 17 September 2004 the court issued a writ of enforcement.
47. On 17 December 2004 the applicant company lodged the writ with the Desnyanskiy District State Bailiffs' Service.
48. On 20 December 2004 the bailiffs' service refused to enforce the judgment of 9 June 2004 owing to non-compliance of the enforcement writ with the formalities.
49. On 16 February 2005 the applicant company lodged the same enforcement writ with the Chernigiv Regional State Bailiffs' Service, which rejected it the next day for lack of jurisdiction.
50. On 1 September 2006 the applicant company lodged the writ with the Central State Bailiffs' Service, which rejected it the same day, as the enforcement writ did not indicate the debtor or its location.
51. On 7 November 2006 the applicant company requested the Chernigiv Commercial Court to specify in the enforcement writ the accounts of the State Treasury from which the awarded amounts should be paid.
52. On 23 November 2006 the court rejected the applicant company's request on the ground that the representative of the Treasury had not appeared and the other parties did not know the accounts, nor were they indicated in the case-file materials.
53. On 1 June 2007 the applicant company repeatedly requested the court to bring the enforcement writ into compliance with the formalities. This request was rejected on 26 June 2007.
54. On 5 February 2008 the applicant company lodged the same request with the same court once again.
55. According to the Government, the judge of the Chernigiv Commercial Court invited the representative of the applicant's company to the court to provide explanations, but the representative failed to appear.
56. Relevant domestic law concerning the applicant's case can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007). Relevant domestic law concerning the applicant company's complaints is summarised in Voytenko v. Ukraine (no. 18966/02, §§ 20-22, 29 June 2004).
VIOLATED_ARTICLES: 13
3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70625
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SOTTANI v. ITALY [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Giovanni Sottani, is an Italian national who was born in 1950 and lives in Scandicci (Florence). He was represented before the Court by Mr Di Donato, Ms Costantini and Mr De Stefano, lawyers practising in Florence.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 March 1991 the applicant’s wife, B.C., who had been suffering from acute leukaemia, died at Careggi Hospital in Florence. After carrying out a hospital autopsy (autopsia amministrativa) on 5 March 1991 to determine the cause of death, the doctors indicated in the medical record that the applicant’s wife had died of acute bronchopneumonia.
On 3 April 1991 the applicant lodged a criminal complaint with the public prosecutor’s office at Florence Magistrate’s Court (“the prosecutor’s office”), claiming, inter alia, that certain delays had contributed to his wife’s death, especially delays in performing a chest X-ray and in recording the results of a platelet test. In addition, the applicant stated that one of the doctors who treated his wife had described a “French drug” used in her treatment as “dreadful” and “directly attacking the DNA cells”. The applicant thus complained that he had not been informed that the drug was dangerous and asked whether it had already passed the trial stage or was still undergoing trials.
On an unspecified date and on the basis of an expert report, the public prosecutor, considering that the delays indicated by the applicant had no causal link with the death of B.C. and that her leukaemia had reached a terminal phase, requested that the investigating judge discontinue the proceedings. On 24 September 1991 the applicant lodged an objection, indicating, inter alia, that the “question concerning the amsacrine-based drug administered to his wife” had not been addressed.
On 7 October 1991, on the basis of a medical certificate, the investigating judge found that B.C.’s leukaemia had not reached the terminal phase as the expert had indicated. He dismissed the request for discontinuation and ordered a new expert report. The investigating judge questioned in particular whether the amsacrine-based drug had been administered to the applicant’s wife “in accordance with the knowledge of specialised medical science in that field”.
In a report dated 4 February 1992, the expert indicated that the doctors had not committed any error, carelessness or negligence in the treatment of B.C.’s illness. Having analysed the medical literature, the expert also expressed the opinion that the amsacrine-based drug had been administered to her in accordance with technical knowledge in the relevant field.
On 20 February 1992 the public prosecutor again requested that the case be discontinued, and the applicant lodged an objection on 12 March 1992.
On 13 April 1992 the investigating judge dismissed the objection and discontinued the proceedings.
On 22 July 1992 the applicant applied for the reopening of the preliminary investigation, but his application was rejected on 28 July 1992.
On 28 January 1994 the applicant again lodged a criminal complaint with the prosecutor’s office. He complained that morphine, which is contra-indicated in cases of respiratory disorders, had been administered to his wife and that certain doctors had fabricated the time of her death on the medical record in order to avoid liability for manslaughter.
According to an expert report dated 28 December 1994, the therapy chosen for the treatment of the applicant’s wife was adequate and there was no causal link between the administration of the morphine and her death.
On 14 March 1995 the prosecutor’s office accordingly called for the discontinuance of the proceedings. The applicant lodged an objection on 27 March 1995.
On 31 March 1995 the investigating judge discontinued the proceedings.
On an unspecified date the applicant learnt from an article in the New England Journal of Medicine of 26 January 1995 that F.L., a colleague of P.R.F., the doctor in charge of the haematology department of Careggi Hospital, had worked on trials involving the amsacrine-based drug “A.”, used to treat leukaemia.
In a parliamentary question of 4 May 1998, M.B., a member of parliament, requested that the Minister of Justice and the Minister of Health conduct an inquiry at the haematology department of Careggi Hospital to ascertain, in particular, details of any trials of the drug “A.”.
In a letter of 10 June 1998, the Health Minister therefore requested that Careggi Hospital provide him promptly with any information about any such trials.
That request, which went unanswered, was repeated on 23 June and 9 July 1998.
In a note of 16 July 1998, Careggi Hospital informed the Health Minister that no further trials involving the drug “A.” had been carried out since 1993.
On 6 August 1998 the Health Minister requested that the Rome carabinieri find out whether there had been any trials of the drug “A.” at Careggi Hospital during the period preceding the death of the applicant’s wife and, if so, to obtain details of any such trials.
In a report of 26 October 1998, the carabinieri informed the Health Minister that, according to the information provided by P.R.F., no trials of the drug “A.” had been conducted at Careggi Hospital. However, P.R.F. had indicated that the drug in question had been administered to the applicant’s wife as part of her leukaemia treatment and that she had died following an acute infection that had been an adverse effect of the drug. In addition, P.R.F. asserted that the patient’s relatives had been informed that the drug had been administered.
In the meantime, on 5 September 1998, the applicant had again lodged a criminal complaint with the prosecutor’s office. He claimed, inter alia, that the drug “A.”, whilst still undergoing trials, had been administered to his wife without her knowledge and without the consent of her family. On 15 September 1998 the prosecutor’s office ordered an expert report.
On 29 October 1999 the prosecutor ordered the carabinieri to add to the case file the documents attesting to the participation of the applicant’s wife in the trials.
In an undated report based on the article from the New England Journal of Medicine, the expert observed that international trials of treatment for acute leukaemia had been under way during the period when the applicant’s wife was being treated in hospital. The medication used in that treatment included the drug “A.”, which had not been registered in Italy. According to the article, the patients who participated in the trials had given their consent in accordance with the regulations of each hospital. On the basis of the documents provided by the carabinieri, the expert went on to indicate that B.C. had been included in the trials without her knowledge and that she had died not from acute bronchopneumonia but from a heart attack following the administration of the drug “A.”.
On 24 April 2001 the doctors who had treated B.C. were committed for trial on a charge of manslaughter. They were accused of giving the applicant’s wife a drug that had not been registered in Italy without informing her either of the risks incurred or of her inclusion in the trials.
The case was listed for a preliminary hearing on 6 November 2001. On that date the applicant joined the proceedings as a civil party.
On 7 January 2002 the preliminary hearings judge found that there was no case to answer. He considered that it had not been established with certainty that the drug administered to B.C. could lead to heart complications or that her death had been caused by a heart attack, since the initial medical report had indicated acute bronchopneumonia as the cause of death. In addition, he noted that the public prosecutor had not ordered a judicial autopsy in the course of the initial investigation. Because of that omission in the judicial investigation, the exact cause of B.C.’s death could no longer be established.
The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide:
“Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ...”
“Injured parties shall exercise the rights and powers expressly afforded to them by law, and may, furthermore, at any stage of the proceedings, submit pleadings and, except in cassation proceedings, request the inclusion of evidence.”
“Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ...”
“1. In the course of the preliminary investigation, the public prosecutor and the person being investigated [persona sottoposta alle indagini] may apply to the judge for the immediate production of evidence [incidente probatorio] ...”
“1. Injured parties may request that the public prosecutor apply to the investigating judge for the immediate production of evidence [incidente probatorio] in the course of an investigation.
2. In the event that the public prosecutor fails to grant that request, he shall give reasons for his decision and notify the same to the injured party.”
Article 116 of the implementing provisions of the CCP, pertaining to investigations into deaths that appear to have occurred as a result of a crime, provides:
“Where it is suspected that a person died as a result of a crime, the public prosecutor shall verify the cause of death and, should he consider it necessary, order an autopsy ...”


ITEMID: 001-114514
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF I.G. AND OTHERS v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objections dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
JUDGES: George Nicolaou;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicants are of Roma ethnic origin. The first applicant, Ms I.G., was born in 1983. The second applicant, Ms M.K., was born in 1981. The third applicant, Ms R.H., was born in 1972. She died on 9 October 2010. Her three children, Ms B.P., Mr D.M. and Mr R.M., expressed the wish to pursue the application in the third applicant’s stead.
7. The applicants were sterilised in the gynaecology and obstetrics department of Hospital and Health Care Centre in Krompachy (Nemocnica s poliklinikou Krompachy – “Krompachy Hospital”), a medical institution which was then under the authority of the Ministry of Health.
8. The first applicant was sterilised on 23 January 2000.
9. According to the first applicant, after her admittance and preliminary checks, the gynaecologist in the hospital ordered her to be transferred to theatre for a Caesarean section. She was asked to write down names for her future child on a piece of paper. The first applicant was subsequently transferred to theatre and a Caesarean section was performed on her. During the operation, the first applicant was sterilised by tubal ligation. This was the applicant’s second delivery, and also her second delivery by Caesarean section.
10. When she woke up from the anaesthetic, the first applicant was told that she had given birth to a girl.
11. The first applicant submitted that she had not been given any further details about the delivery, nor was she told that she had undergone tubal ligation and that she had been sterilised.
12. The next morning she was approached by the doctor treating her, who came into her room and asked her to sign a document. The first applicant was told that she had to sign the document because she had undergone a Caesarean section and all women who had Caesarean sections had to sign it.
13. On 28 January 2000 the first applicant was transferred to a hospital in Košice due to an inflammation as a post-surgery complication. On 9 February 2000 she underwent further surgery due to a serious infection and sepsis. This operation was considered life-saving. During the operation the doctors performed a hysterectomy on the first applicant.
14. The first applicant first learned that she had been sterilised during her second delivery, while reviewing her medical files with her lawyer on 16 January 2003. The medical file contained a form entitled “Request for authorisation of sterilisation”. The form had been filled in using a typewriter. It was dated 23 January 2000 and had been signed by the first applicant.
15. The second half of the pre-printed form contained the decision of the district sterilisation committee at Krompachy Hospital dated 23 January 2000. This decision approved the first applicant’s sterilisation. It indicated that the sterilisation was required for medical reasons, that the applicant had two children, that she had earlier given birth by Caesarean section, and that she had a small pelvis. The conditions laid down in the 1972 Sterilisation Regulation had been met in relation to the applicant’s sterilisation. The decision was signed by the president of the committee, the district medical specialist on the issue and the secretary to the sterilisation committee.
16. The first applicant submitted that her sterilisation had been contrary to Slovakian law, as at the relevant time she was 16 years old and her legal guardians had not consented to the operation.
17. The first applicant has been living in constant fear that her partner will leave her because she is not able to bear him any more children.
18. The second applicant was sterilised in Krompachy Hospital on 10 January 1999. The sterilisation was performed on her during her second delivery by Caesarean section. Shortly after being admitted to Krompachy Hospital, she was transferred to a ward, where she was approached by a nurse who told her that the delivery would have to be by Caesarean section. The Caesarean delivery was then performed. During the operation medical staff of Krompachy Hospital also performed a tubal ligation on the second applicant.
19. At the date of delivery the second applicant was 17 years old (that is to say, a minor) and not legally married. She submitted that neither she nor her parents had been advised of her sterilisation prior to it, and that they had never signed any document consenting to it. According to their statements in the course of civil proceedings on the second applicant’s action (for further details see below), the second applicant and her parents stated that the medical staff had informed them orally after the operation.
20. The second applicant learned only four years later, during a criminal investigation, that her medical record contained a form entitled “Request for sterilisation” with her signature dated 9 January 1999. The form lists as the reason for the sterilisation “multiple varicose veins in the pelvis minor” and indicates that the applicant had given birth to two children by Caesarean section. The same document contains a decision by the district sterilisation committee approving the request and dated 9 January 1999.
21. When the second applicant’s partner learned that she would not be able to have another child due to the sterilisation, he left her. Due to her inability to have more children, her social status in her community has fallen and, as a result, it was very difficult for the second applicant to find a new partner.
22. The second applicant currently has a partner, but she is worried about the future of this relationship because she and her partner want to have a child together and her partner is complaining about her infertility. The second applicant is also suffering serious medical side-effects from her sterilisation.
23. The third applicant was sterilised in Krompachy Hospital on 11 April 2002. The sterilisation was performed during her fourth delivery, when she delivered her fourth and fifth children (twins). It was her first delivery by Caesarean section.
24. Prior to her delivery the third applicant had regular pre-natal checkups with the chief gynaecologist in Krompachy Hospital. She was told that her pregnancy would be risky because she was expecting twins. In the eighth month of her pregnancy she was informed that she would have to deliver by Caesarean section.
25. The third applicant arrived at Krompachy Hospital in the evening of 10 April 2002 after she had begun having contractions. She was admitted to the gynaecology ward at 10.15 p.m. and spent the night there. At approximately 8 a.m. on 11 April 2002 she was taken to theatre. A nurse gave her a pre-medication injection as a precursor to the anaesthetic. The applicant felt that her head was spinning. A nurse, with the doctor standing beside her, asked the third applicant to sign a paper. Because she was feeling dizzy as a result of the injection, the third applicant was unable to read what was written on the paper. The nurse told the applicant that she had to sign it as she was going to have a Caesarean delivery.
26. The third applicant submitted that she had signed the document without understanding its contents.
27. On 18 April 2002 the third applicant was discharged from Krompachy Hospital at her own request. She stated that the hospital had asked her to sign a document prior to her discharge. She was given no time to read the document when signing it. In reply to a question from the applicant, the doctor stated that the paper confirmed that she had been sterilised. The doctor refused to give any further explanation to the applicant.
28. The discharge report indicates that the third applicant was sterilised during the Caesarean delivery. It was only later, on 14 August 2003, during questioning at a police station, that a police investigator showed the applicant the request for sterilisation, which appeared to include her signature.
29. The form had been filled in using a typewriter and was dated 10 April 2002. The second part contains the decision of the sterilisation committee dated 10 April 2002 approving the operation as compliant with the 1972 Sterilisation Regulation. The document states that there were “medical reasons” for the operation and that the applicant had already had three children.
30. With a view to describing the overall situation and context in which they had been sterilised, the applicants submitted that they had received inferior treatment during their stay in Krompachy Hospital. In their view, racial prejudice on the part of medical personnel had played a significant role in the quality of the treatment they received.
31. In particular, the applicants stated that they had been accommodated separately from nonRoma women, in what were called “Gypsy rooms”. They had been prevented from using the same bathrooms and toilets as nonRoma women, and could not enter the dining room, where there was a television set. The second applicant had also experienced verbal abuse from health care personnel during her stay in Krompachy Hospital.
32. With reference to the Body and Soul Report (see below), the applicants stated that the chief gynaecologist at Krompachy Hospital had admitted that patients were categorised and separated according to their “adaptability” and level of hygiene. That categorisation was carried out by him on an individual basis. According to the Body and Soul Report the same physician had also stated that Roma did not know the value of work, that they abused the social welfare system and that they had children simply to obtain more social welfare benefits.
33. The Government disputed the above allegations. They relied, inter alia, on a statement by a gynaecologist at Krompachy Hospital that there had been no deliberate segregation of Roma women. On the contrary, due to the similarity of their habits Roma women themselves asked to be placed in rooms together; they even moved without authorisation to other rooms for that purpose. There were also cases where Roma women with a higher social status requested isolation from other patients of Roma origin.
34. In response to the publication by the Centre for Reproductive Rights and the Centre for Civil and Human Rights of Body and Soul: Forced and Coercive Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia (“the Body and Soul Report”), the Human Rights and Minorities Section of the Office of the Government of Slovakia initiated a criminal investigation of the alleged unlawful sterilisation of several women, including the three applicants.
35. The first and third applicants joined the Office of the Government in their criminal complaint and, together with the second applicant, also acted as witnesses and injured parties in the proceedings.
36. The proceedings were formally brought by the regional criminal investigation department in Košice on 31 January 2003.
37. In a decision of 24 October 2003 the regional criminal investigation department in Žilina, to which the case had been transferred, discontinued the criminal investigation, finding that the alleged events underlying the investigation had not occurred and that nothing indicated that any offence under the Criminal Code had been committed.
38. On 31 October 2003 the applicants and two others lodged a complaint against the police investigator’s decision of 24 October 2003. On 9 March 2004 the regional prosecutor’s office in Košice dismissed it, holding that injured parties, including the applicants, were not entitled to lodge complaints against the decision of 24 October 2003. In a separate letter of 9 March 2004 the regional prosecutor addressed the arguments of the complainants and found that the police investigator’s decision had been lawful and correct.
39. On 15 April 2004 the applicants requested the General Prosecutor to submit a complaint of a breach of law to the Supreme Court. The General Prosecutor’s Office considered it a request for review of the lawfulness of the criminal proceedings. On 10 June 2004 it informed the applicants that their request had been refused, and that the General Prosecutor fully approved the proceedings and the decision to terminate the investigation.
40. On 1 June 2005 the Constitutional Court quashed the decision given by the regional prosecutor’s office in Košice on 9 March 2004, for the reasons set out below.
41. On 28 September 2005 a public prosecutor of the regional prosecutor’s office in Košice dismissed a further complaint against the police investigator’s decision of 24 October 2003. The public prosecutor found that all the available and necessary evidence had been gathered with a view to determining the issue. It had not been shown that the medical doctors concerned had taken unauthorised actions with a view to preventing the birth of children, or that they had otherwise acted in a manner contrary to the law.
42. Following the Constitutional Court’s judgment of 13 December 2006 (see below) the Košice regional prosecutor’s office, on 9 February 2007, quashed the investigator’s decision of 24 October 2003 to discontinue the criminal proceedings.
43. Subsequently, the police investigator examined and cross-examined the applicants and the medical staff. On 28 December 2007 the investigator again discontinued the proceedings, concluding that no criminal offence had been committed.
44. On 4 January 2008 the applicants lodged a complaint. They argued that the investigator had failed to deal with all relevant aspects of the case and had not remedied the shortcomings to which the Constitutional Court had pointed in the judgment of 13 December 2006.
45. On 19 February 2008 the Košice regional prosecutor’s office dismissed the applicants’ complaint, holding that the sterilisations had been carried out in accordance with the law then in force, and that the applicants had been duly advised of their sterilisation. No objective or subjective appearance of any criminal offence had been established in any of the individual cases of sterilisation.
46. On 16 March 2008 the applicants complained about that decision to the General Prosecutor’s Office.
47. On 19 May 2008 the latter replied that no reason had been found to reach a different conclusion. In particular, the prosecuting authorities had considered all relevant aspects of the case and had correctly concluded that no criminal offence had been committed. The General Prosecutor’s Office expressed the view that, contrary to what the prosecuting authorities at lower level had held, the applicants could not be considered injured parties for the purpose of the criminal proceedings, as they had suffered no harm to their health, nor any other damage, and their rights had not been infringed.
48. On 12 February and 2 June 2004 respectively the first and second applicants claimed damages from Krompachy Hospital. They relied on Articles 420 and 444 of the Civil Code and claimed that they had been unlawfully sterilised by the defendant’s employees. The third applicant brought a similar action with the Spišská Nová Ves District Court on 7 October 2004.
49. The cases were examined by courts at two levels of jurisdiction. It was established that the Krompachy municipality was to be considered the defendant once Krompachy Hospital had ceased to exist. The applicants’ claims were determined as follows.
50. On 20 January 2005 the Spišská Nová Ves District Court rejected the first applicant’s claim as statute-barred. On 23 May 2005 the Košice Regional Court quashed that decision.
51. Subsequently the District Court heard the parties and witnesses, obtained the opinion of an expert and took documentary evidence. On 12 January 2009 it dismissed the first applicant’s claim. In the judgment it admitted that the first applicant’s sterilisation had not been life-saving surgery. As the applicant had been under the age of majority, her parents’ approval should have been obtained prior to the surgery.
52. With reference to the expert opinion, the court further established that the reason for the first applicant’s permanent infertility was the hysterectomy. That operation had been carried out as a life-saving intervention several days after the delivery, for reasons which were unrelated to the sterilisation. The operation had thus had no lasting consequences for the first applicant. The court concluded that there was no causal link between the breach of the first applicant’s rights in the context of her sterilisation and its alleged effect on her health, private and family life and position in society.
53. The first applicant appealed. She argued that she had been deprived of the ability to have children by her sterilisation on 23 January 2000. The subsequent hysterectomy could not absolve the defendant from liability for her unlawful sterilisation. She contested the District Court’s argument that the sterilisation had not permanently deprived her of the ability to conceive.
54. On 26 October 2009 the Regional Court upheld the first-instance judgment. It held that the District Court had established the relevant facts and had applied the law correctly. A causal link between the unlawful sterilisation of the first applicant and the damage which she alleged she had thereby suffered had ceased to exist with the performance of the hysterectomy. The Regional Court concluded that during the short period between the sterilisation and the hysterectomy the first applicant could not have suffered any damage resulting from an impairment of her position in society, contrary to her allegation. Without further specification the judgment indicated that the first applicant might have suffered damage of a different nature, but that this was not the subject matter of the proceedings.
55. On 2 May 2005 the District Court rejected the action of the second applicant. On 6 February 2006 the Regional Court quashed that decision.
56. Subsequently the District Court heard the parties and witnesses and examined documentary evidence. It also obtained the opinion of an expert, the second applicant having previously challenged several other experts appointed by that court.
57. On 11 May 2009 the District Court dismissed the action. On the basis of the expert opinion it established that the second applicant had not suffered serious damage to her health and that the operation had not affected her life and position in society. The judgment stated that the second applicant could become pregnant, for example by means of sterilisation reversal surgery or by assisted reproduction. The applicant had been living with her second partner for four years and she had not shown that her social life had been impaired. Finally, the District Court held that, had the second applicant shown that her health had been damaged as a result of her sterilisation, she would have been entitled to 1,593 euros (EUR) in compensation under the relevant law.
58. On 27 January 2010 the Regional Court quashed that judgment as erroneous. It held that the hospital staff had acted contrary to the law in that they had not obtained the approval of the second applicant’s legal guardians prior to her sterilisation.
59. On 15 June 2010 the District Court ordered the defendant to pay EUR 1,593.3 to the second applicant. It found no reason to avail itself of its right under Regulation 32/1965 to grant a higher award.
60. On 10 November 2010 the Košice Regional Court upheld the District Court’s judgment of 15 June 2010 while holding second applicant’s argument that it was not clear whether she could become pregnant as a result of sterilisation reversal surgery or assisted reproduction, and that such methods were not accessible to her. For the appeal court, it had not been reliably established that the second applicant and her partner would have had children if she had not been sterilised. Finally, the Regional Court held that the award could not be increased on the ground of the alleged impairment of the applicant’s position as a member of a socially excluded Roma community. That issue was to be assessed from the perspective of cultural norms shared in society as a whole, under which infertile men and women were no longer subject to denigration and mockery.
61. On 24 October 2011 the District Court discontinued the proceedings in respect of the third applicant. It held that under the relevant law the right claimed had been extinguished upon her death.
62. On 24 May 2004 the applicants lodged a complaint with the Constitutional Court. They referred to the above decisions by the police investigator of the regional criminal investigation department in Žilina and the regional prosecutor’s office in Košice of 24 October 2003 and 9 March 2004 respectively, and alleged that their rights under Articles 3, 8, 12, 13 and 14 of the Convention and several constitutional provisions had been breached.
63. On 1 June 2005 the Constitutional Court found that the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 13 and 3 of the Convention, in that it had erroneously rejected their complaint against the police investigator’s decision of 24 October 2003 without addressing its merits. The Constitutional Court quashed the decision of the regional prosecutor’s office of 9 March 2004 and ordered that authority to examine the applicants’ complaint. That order, together with the finding of a violation of the applicants’’s office in Košice to reimburse the applicants’ costs and expenses in the constitutional proceedings.
64. On 30 November 2005 the applicants complained that the authorities involved in the above criminal investigation had failed to ensure that those responsible for their sterilisation were prosecuted and that the applicants were awarded compensation. The applicants alleged a violation of Articles 3, 8, 13 and 14 of the Convention. They also relied on several constitutional rights.
65. On 13 December 2006 the Constitutional Court found that by its decision of 28 September 2005 the regional prosecutor’s office in Košice had violated the applicants’ rights under Articles 3 and 8 of the Convention in their procedural aspect,
66. The Constitutional Court quashed the decision in issue and ordered the regional prosecutor’s office to re-examine the case, taking into account the applicants’ rights under Articles 3 and 8 of the Convention. The decision indicated the issues which the prosecuting authorities were required to clarify.
67. The Constitutional Court awarded the equivalent of EUR 1,430 to each of the applicants. It ordered the regional prosecutor’s office to reimburse the applicants’ costs.
68. On 24 April 2008 the applicants complained under Articles 3, 8, 13 and 14 of the Convention about the Košice regional prosecutor’s decision of 19 February 2008 and the fact that their case had not been investigated in a prompt and efficient manner. The applicants indicated that they had also complained about that decision to the General Prosecutor’s Office by way of an extraordinary remedy, and that the latter had not yet replied to them.
69. On 3 June 2008 the applicants sent the Constitutional Court a copy of the letter of the General Prosecutor’s Office of 19 May 2008 rejecting their complaint about the regional prosecutor’s decision.
70. The Constitutional Court rejected the applicants’ complaint on 29 July 2008. It held that the decision of the Košice regional prosecutor’s office of 19 February 2008 had been reviewed by the General Prosecutor’s Office at the applicants’ request. Any interference with the applicants’ rights which the Constitutional Court was entitled to examine in the context of the proceedings complained of therefore stemmed from the decision the General Prosecutor’s Office had given on 19 May 2008. Since the applicants had exclusively challenged the decision of the regional prosecutor’s office, and since the Constitutional Court was bound by the way in which they had specified the subject matter of their complaint, the court concluded that it lacked jurisdiction to deal with the complaint.
71. On 10 March 2010 the first applicant complained about the proceedings leading to the Košice Regional Court’s judgment of 26 October 2009. She alleged a breach of Articles 3, 6, 8, 12, 13 and 14 of the Convention, as well as of her rights under several other international treaties and the Constitution.
72. On 7 September 2010 the Constitutional Court declared the complaint manifestly ill-founded. It held that the Regional Court’s judgment was not arbitrary or otherwise contrary to the first applicant’s rights.
73. On 9 March 2011 the second applicant alleged a breach of, inter alia, Articles 3, 6, 8, 13 and 14 of the Convention in the context of the proceedings leading to the Regional Court’s judgment of 10 November 2010.
74. On 13 July 2011 the Constitutional Court dismissed the complaint as manifestly ill-founded. It held that the manner in which the ordinary courts had determined the amount of compensation due to the second applicant was not arbitrary or otherwise contrary to her fundamental rights and freedoms.
75. The applicants referred to a number of publications pointing to a history of sterilisation of Roma women, which had originated under the communist regime in Czechoslovakia in the early 1970s and which they believed had influenced their own sterilisation. They also referred to the Body and Soul Report and a number of other reports and statements by human rights organisations, both in Slovakia and abroad, including governmental and inter-governmental bodies, requesting the Slovakian authorities to conduct an impartial and fair investigation of the allegations of forced and coerced sterilisation of Roma women in Slovakia, or criticising the absence of such an investigation (for further details see also V.C. v. Slovakia, no. 18968/07, §§ 43-47, 8 November 2011).
76. The Government cited a report of 28 May 2003 drawn up by a group of experts established by the Ministry of Health with a view to investigating allegations of unlawful sterilisations and segregation of Roma women (for further details see V.C. v. Slovakia, cited above, §§ 50-55).
77. In their opinion on the Body and Soul Report representatives of the Slovakian Society for Planned Parenthood and Parenthood Education admitted that the requirement of prior informed consent to sterilisation had been absent from the regulatory framework in Slovakia at the relevant time. However, in the case of Roma women it was frequently the only opportunity for medical personnel to inform them about contraception and sterilisation shortly before or during delivery. According to the opinion, the medical practitioners involved in sterilisations acted in good faith and in accordance with the law in force.
78. In a letter dated 3 February 2003 the director of Krompachy Hospital contested the allegation that Roma women had been forcibly sterilised in his hospital. The letter contained the following information.
79. In the area covered by Krompachy Hospital the post-natal mortality rate of Roma children had fallen from twenty-five per thousand in 1990 to five per thousand in 2002. The majority of deliveries in the hospital concerned Roma women; the perinatal mortality rate was around 10 per thousand, approximately the same as in other hospitals within the region.
80. The Roma settlement in R. (where the first and second applicants lived) was outside the area served by Krompachy Hospital. However, its staff did not refuse to treat inhabitants of that settlement, as it was closer than the hospital to which they administratively belonged. Between 1990 and 2003 150 women from R. settlement had given birth by vaginal delivery and eighteen Roma women (that is, 12%) had delivered by Caesarean section. The ratio was around 15% nationwide.
81. During the same period 801 Roma women had given birth in the hospital, of whom seventy-five (that is, 9.3%) had undergone a Caesarean section. There had been a further 768 deliveries by women who were not of Roma origin. Of the latter, 139 women (that is, 18%) had delivered by Caesarean section.
82. Between 1999 and February 2003 there had been twenty-eight sterilisations performed on women of Roma origin and sixty-five sterilisations of non-Roma patients. All patients had been duly advised and had signed the relevant request.
83. Furthermore, Krompachy Hospital had carried out ninety-six procedures on Roma women who were experiencing difficulty in conceiving. In several cases the patients had become pregnant thereafter.
84. The letter also mentioned the case of a Roma woman who had delivered her eighth child in 1998. As she had been brought to the hospital in a state of shock, the staff could not inform her about sterilisation prior to delivery, which was carried out by Caesarean section. No sterilisation was performed and she was subsequently advised to undergo sterilisation after the post-natal period. The patient did not follow the medical advice. One year later she was brought to the hospital with bleeding, fourteen days after the scheduled date of delivery of her ninth child. Due to severe haemorrhagic shock she could not be saved.
85. The relevant domestic law and practice, as well as pertinent international documents, are set out in detail in V.C. v. Slovakia, cited above, §§ 57-86 and N.B. v. Slovakia, no. 29518/10, §§ 49-56, 12 June 2012.
86. In addition, the following information is relevant in the present case.
87. The relevant provisions of the Civil Code read as follows:
“1. Everyone shall be liable for any damage he or she causes by breach of a statutory duty.
2. Damage is considered to have been caused by a legal person ... when it has arisen in the context of an activity carried out by other persons whom [that legal person] has entrusted with carrying out that activity” ...
“Indemnification for damage to health shall consist of a lump-sum payment for suffering and impairment of one’s position in the society.”
88. In November 2009 the UN Committee Against Torture considered its second periodic report on Slovakia, which covered the period from 1 January 2001 to 31 December 2006. In its concluding observations the Committee expressed deep concern about allegations of continued involuntary sterilisation of Roma women. It recommended that Slovakia should:
“(a) Take urgent measures to investigate promptly, impartially, thoroughly and effectively all allegations of involuntary sterilization of Roma women, prosecute and punish the perpetrators and provide the victims with fair and adequate compensation;
(b) Effectively enforce the Health-care Act (2004) by issuing guidelines and conducting training of public officials, including on the criminal liability of medical personnel conducting sterilizations without free, full and informed consent, and on how to obtain such consent from women undergoing sterilization.”
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-108537
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BORISENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicant was born in 1967 and lives in Novotroitske, in the Donetsk Region.
5. On 17 February 1999 criminal proceedings were instituted against the applicant and three other persons on suspicion of having robbed a café.
6. On 23 March 1999 a bill of indictment was drafted in the applicant’s respect and he was placed under an obligation not to abscond. However, as the applicant’s whereabouts were unknown, he was placed on the wanted list and the proceedings were suspended.
7. On 17 July 1999 the applicant was arrested by the police while attempting to flee after having robbed a store. Following this incident a new criminal case was initiated against him and he was remanded in custody.
8. On 30 December 1999 the Voroshylovsky District Court of Donetsk sentenced the applicant to four years’ imprisonment for having robbed a store on 17 July 1999. The court ordered that the term of imprisonment be calculated from 18 July 1999, when the applicant had initially been remanded in custody. Following this conviction, the applicant was detained in the Donetsk Region Correctional Labour Colony no. 57 (ВТК № 57).
9. On 22 November 2000 the criminal proceedings initiated against the applicant and three other persons in February 1999 were resumed and the applicant was presented with the bill of indictment of 23 March 1999.
10. On 28 December 2000 a decision was taken to transfer the applicant temporarily (for two months) from the Correctional Labour Colony where he was serving his sentence of 30 December 1999 to the Donetsk Temporary Detention Unit (SIZO) no. 5 (СІЗО № 5 м. Донецьк) for questioning in connection with the pending criminal case.
11. On 23 January 2001 the criminal case against the applicant was joined with twelve other criminal cases involving nine more defendants and concerning numerous robberies and other crimes committed by them as members of a gang.
12. On 31 January 2001 the applicant’s bill of indictment of 23 March 1999 was updated. Together with three other presumed gang members he was additionally charged with having robbed another commercial facility on 14 February 1999.
13. On 1 February 2001 the Dokuchayevsk Town Prosecutor authorised the applicant’s detention on remand in SIZO no. 5 until 28 March 2001 in connection with the pending criminal proceedings against him. By way of reasoning it was noted that the applicant was a convicted prisoner whose transfer to the SIZO was necessary in view of the need to investigate the accusations pending against him.
14. On 22 March 2001 the applicant’s bill of indictment was updated, in particular to mention his membership of a gang.
15. In March 2001 the defendants commenced familiarisation with the case-file materials.
16. In June 2001 the criminal case was transferred to the Dokuchayevsk Town Court.
17. On 21 June 2001 the court held a preliminary hearing and found that the case had been properly investigated and was ready for trial. It further ordered, without any additional reasoning, that the applicant should remain in custody in SIZO no. 5 pending trial. It did not specify for how long. The court scheduled the first hearing for 17 July 2001. This hearing did not take place, however, as the court allowed the applicant’s and several other defendants’ requests to familiarise themselves with the case file.
18. A new hearing was scheduled for 14 November 2001. It was adjourned because the applicant asked for it to be recorded but the requisite recording equipment was unavailable. The court also upheld the previously decided preventive measure – the applicant’s detention in SIZO no. 5 – without fixing any time-limits or giving any reasons. The next hearing was eventually scheduled for 4 September 2002. Between that date and August 2004 some fifty hearings were scheduled. On some fifteen occasions the hearings were adjourned because of the authorities’ failure to deliver the accused, who were in custody, for the hearings. On seven occasions the hearings were adjourned because the prosecutor failed to appear and on ten occasions because various private parties (victims, accused, witnesses) failed to appear.
19. In decisions on adjournments of the hearings of 24 September, 29 October, 12 and 22 November, 18 December 2002, 25 December 2003, 13 and 28 January, 9 June and 17 June 2004, the domestic courts also continued to uphold the applicant’s detention without giving any reasons or fixing any time-limits.
20. On 17 August 2004 the Dokuchayevsk Town Court remitted the case for additional investigation without deciding on the applicant’s further detention.
21. On 11 February 2005 the Donetsk Regional Court of Appeal set aside that decision and remitted the case to the trial court for fresh consideration.
22. On 26 April 2005 the applicant requested the Dokuchayevsk Court to release him from custody under an undertaking not to abscond. He referred to the incompatibility of his state of health with the conditions of his detention and to his hope of producing evidence of his innocence in the event of his release. On the same date the court rejected his request, citing the general legal provisions applicable, which authorised detention pending trial for defendants charged with serious crimes in order to prevent them from absconding, interfering with the establishment of the facts or continuing their criminal activities, as well as to ensure compliance with procedural decisions. It further stated, that the applicant did not substantiate his request and there were no grounds for his release under the undertaking not to abscond.
23. Between February and June 2005 some twenty-eight hearings were scheduled. About ten of them did not take place on account of the prosecutor’s failure to appear and five hearings were adjourned on account of the failure of various third parties to appear.
24. On 1 June 2005 the Dokuchayevsk Town Court convicted the applicant as charged and sentenced him to seven years’ imprisonment. The court further decided:
“In accordance with part 3 of Article 42 of the C[riminal] C[ode] of Ukraine in the wording of 1960, the ultimate punishment shall be determined for the multiple offences, by the partial addition of the sentences under the judgment of the Voroshylovsky District Court of Donetsk of 30 December 1999 and under this judgment, as nine years’ imprisonment with confiscation of all personal property.
The period of serving the sentence under this judgment shall include the part of the sentence served under the judgment of the Voroshylovsky District Court of 30 December 1999, which was one year, six months and seventeen days, and the ultimate [remaining] sentence shall be determined as seven years five months and seventeen days’ imprisonment and confiscation of all personal property.
The term of the sentence of the convict Borisenko S.V. shall be calculated as from 1 February 2001.”
25. On 20 January 2006 the Donetsk Regional Court of Appeal upheld the applicant’s sentence.
26. The applicant appealed in cassation, submitting that the courts had wrongly determined his ultimate sentence as he considered that he had served his first sentence in full. He considered that he had been detained as a convicted person, referring to a number of parcels he had been allowed to receive.
27. On 14 November 2006 the Supreme Court of Ukraine rejected the applicant’s cassation appeal against the judgment of 1 June 2005. It noted in particular that the first-instance court had calculated the applicant’s sentences correctly and in accordance with the law, namely Article 42 § 3 of the Criminal Code of 1960, Article 65 of the Criminal Code of 2001 and Article 338 of the Code of Criminal Procedure.
28. Under section 4 of the Act, during the investigation and trial suspects may be kept in a SIZO (temporary detention centre) or a prison acting as a SIZO. Exceptionally the suspects can be kept in “IVS” short-stay cells in police stations. If a convicted person is under investigation in respect of another crime, he or she may be kept in the disciplinary detention unit of a correctional colony. Section 8 of the Act provides for suspects who have been convicted of a different offence to be kept separately from other detainees.
29. The Code provided for a convicted person normally to be kept in the same custodial institution (Article 22). Under Article 23 of the Code a person who was sentenced to imprisonment in a colony could be temporarily kept in a SIZO or prison in connection with different criminal proceedings, as a witness (for up to six months with the authorisation of the prosecutor) or as a suspect, under the general rules governing detained suspects under Article 156 of the Code of Criminal Procedure.
30. The relevant provision of the Code provides:
Article 42
Sentencing for several crimes
“If a person is found guilty of committing two or more offences under different articles of the criminal law, and has not been convicted for any of them, the court, having determined the punishment for each crime separately, shall ultimately determine the aggregate punishment by absorption of the less severe penalties by the more severe ones, or through full or partial cumulation of determined punishments within the limits established by the article of law that provides for the more severe punishment.
The main punishment may be supplemented by any additional penalty provided for in the laws governing liability for the crimes of which the person was found guilty.
The same rules shall apply when, after having been sentenced in one case, the sentenced person is found guilty of another crime, committed before the sentence was pronounced in the first case. In such cases the term of the sentence shall include the part or all of the sentence not yet served under the first judgment.”
31. The relevant provision of the Code provides:
Article 65
General principles of imposition of punishment
“1. A court shall impose a punishment:
(1) within the limits prescribed by a sanction under that article of the Special Part of this Code which creates liability for the criminal offence concerned;
(2) pursuant to provisions of the General Part of this Code;
(3) having regard to the degree of gravity of the offence committed, the character of the offender, the method used and the motives for the offence, the nature and extent of the damage done, and any mitigating or aggravating circumstances.
2. The punishment imposed on an offender should be adequate and sufficient to reform the offender and prevent new offences.
3. The grounds for imposing a punishment milder than that prescribed for a given offence in the relevant article of the Special Part of this Code are specified in Article 69 of this Code.
4. A punishment heavier than that prescribed for a given offence in the relevant article of the Special Part of this Code may be imposed pursuant to Articles 70 and 71 of this Code in the event of cumulative offences and cumulative sentencing.”
32. The relevant provisions of the Code provide:
Article 156 (as worded before 29 June 2001)
Term for holding a person in custody
“The term for remanding a person in custody during the investigation of criminal offences shall be not more than two months. This term may be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or other prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds for changing the preventive measure. A further extension of this term to six months from the time of arrest shall be effected – only if the case is exceptionally complex – by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or other prosecutors equal to them in rank.
Further periods of remand in custody may be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the Prosecutor General.
Subsequent to the above, no further extensions of detention on remand shall be allowed. The accused must then be immediately released.
If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure, the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved. As regards the incomplete investigation, the case shall be divided into separate proceedings and completed in accordance with the general rules.
The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, as established by paragraph 2 of this Article.
The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody.
If the court refers the case back for fresh investigation, and where the term of remand in custody has expiredextended by the prosecutor, whose task is to supervise the lawfulness of the pre-trial investigation in the case, within one month from the time he receives the case file. Further extension of such detention before the case is remitted to the court shall be governed by paragraphs 1, 2 and 6 of this Article.”
After June 2001 the detention order was given along the same lines, but by the courts and not the prosecutor.
Article 338
Calculation of the period of serving the sentence
“The beginning of the serving of a sentence in the form of imprisonment or corrective labour for a defendant who has not been in custody prior to his conviction shall be calculated from the date of execution of the sentence.
When the defendant, prior to his conviction, has been in custody for the purposes of the same case, the period of serving the sentence shall include the period of pre-trial detention.
When the accused, while in custody, stayed in a medical institution, the period of stay there shall be included the period of serving the sentence.
If the defendant, prior to conviction, has been in custody and is sentenced to correctional labour, the time spent in custody shall be included in the period of correctional labour at the rate of one day of custody for three days of correctional labour. If the defendant was sentenced to correctional labour, and during the re-hearing of the same cause he is sentenced to imprisonment, the served period of correctional labour shall be included in the term of imprisonment at the rate of three days of corrective labour for one day of imprisonment.”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1