ITEMID: 001-81906
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ANGELOVA AND ILIEV v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;No separate issue under Art. 3;No separate issue under Art. 13;Violation of Art. 14 +2;No separate issue under Art. 14+3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The first applicant was the mother and the second applicant was the brother of Mr Angel Dimitrov Iliev (“the victim”), who was of Roma origin and twenty-eight years old at the time of his death.
7. On the evening of 18 April 1996, in the town of Shumen, the victim was attacked by seven teenagers (“the assailants”) and beaten severely. He was also stabbed several times by one of the assailants.
8. The victim was taken to a hospital after the attack but died on the following morning, 19 April 1996.
9. As later submitted by the assailants, the attack was motivated by the victim's Roma ethnicity (see paragraphs 12-13 and 18-21 below).
10. All of the assailants were detained and questioned by the police on the day of the attack, 18 April 1996. With one exception, all were juveniles.
11. The assailants were all released after questioning, with the exception of G.M.G. (“the first assailant”), who was seventeen years old at the time. A knife had been found on him and two of the other assailants, N.R. and S.H., had implicated him as the person who had wielded the weapon. The first assailant was remanded in custody on suspicion of murder.
12. On 19 April 1996 the assailants were again questioned by the police. N.R. and S.H. confirmed their statements to the effect that the first assailant had wielded the weapon. Thereupon, a preliminary investigation was opened against him and he was charged with murder stemming from an act of hooliganism (see paragraph 56 below). He was then questioned, but declined to give a statement other than to confirm that the knife found on him was his own.
13. D.K., who was fifteen years old at the time, gave a statement on 19 April 1996, the relevant part of which reads:
“...[We have been meeting] with the boys regularly for the past several months. We agree in advance where and when we will meet the next time, because we do not go to the same school... We hate junkies and [do not] take drugs... we [also] do not drink alcohol, either when we see each other or when we are apart... We talk about films, music and have [stated] on many occasions that we hate Gypsies – we call them “soot” (сажди) and “mangals” (мангали)... Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and the Gypsies[,] it is known that a high percentage of criminal offences are [committed] by Gypsies and Turks. At home I have heard my father talk about them that way...
Last night... we met... as we had previously agreed. [It was a] simple gathering without any aim or idea of what we would do... We went for a walk in the city [park]... We [then] headed towards the train station... [Then] down towards the road... We passed by the bridge... and were walking [close to] the tracks. We were just passing and I [do not know] who noticed the Gypsy first... [The Gypsy] was about ten metres away, we were on one side of the road and he was on the other. We started walking after him... The first to catch up with him was [the first assailant] and the Gypsy asked him if he had [the time]. I do not think that anyone of us knew the Gypsy. [The first assailant] told him “I have, I have” and knocked his head against the wall. [He] held the Gypsy by the jacket from behind [so] that when he hit him the first time he did not [collapse] because [the first assailant] was holding him [up]. [The first assailant] turned him around immediately and knocked him [once] again [against] the wall. I think he hit him on the head again. [S.H.] went over... and kicked the Gypsy somewhere on the body. I did not see where. I and [one of the others] went over to [them] and [we all] brought the Gypsy to the ground. [He] was not able to put up any resistance because everything happened very quickly. He was shouting, because he was hurt. I was not thinking about what the Gypsy was saying and I did not care. Personally, I wanted to beat him up and nothing more. I think that the others also just wanted to beat him up... The others... were [also] hitting the Gypsy. I saw them when they hit him. The Gypsy was on the floor and was not able to put up any resistance. I was doing what the others were doing and did not watch what they were doing... At some point I saw that there was bleeding from his head. The blood was somewhere on [his] face. He was [still] moving... the same night I had seen that [the first assailant] had a knife... The knife is mine, [but] I gave it to [the first assailant]... a long time before this [night]... I did not know that [that] night [the first assailant had] the knife [with him]...
... While we were walking [behind] the Gypsy [and] before we caught up with him[,] I saw that [N.B.]... said to the [the first assailant] “Give me the knife” and I saw that [he] took it out of his pants and gave it to him. I did not see where [N.B.] put the knife and whether it remained in his hand. [But] when we were hitting the Gypsy on the floor I saw how [N.B.] stabbed [him] with the knife in [the buttocks] area... I saw that [N.B.] plunged the knife several times into the body of the Gypsy[,] always in that part of his body. The Gypsy was screaming. [N.B.] did not say anything, he was not swearing. [N.B.] made three or four jabs... [T]he Gypsy was still moving. Blood began to flow from the place where [N.B.] had [stabbed him]... The rest of us were continuing to hit... the Gypsy while [N.B.] was stabbing him...The Gypsy had not provoked us in any way[,] neither with words nor with actions... We beat him because he was a Gypsy... He had had enough. I saw that he was not bleeding profusely... We did not want to kill him, just to beat him up...I am not sure that only [N.B.] used the knife, but I cannot indicate that any one of the others used it. I did not see another [person using it]...
...
I still do not know what happened to this person, whether he is [still] alive... We have beaten up Gypsies [before] and we [always] hear what happens [to them]...”.
14. An autopsy of the victim was performed on 20 April 1996. It established that he had been stabbed three times in the left outer thigh and twice in the abdominal cavity which resulted in the severance of the ischiadic nerve, the profunda femoris artery (deep artery of the thigh), the main intestine and the urethra. He also had bruises and contusions to his face and the back of his head. The autopsy concluded that the cause of death was massive internal loss of blood, resulting from the severance of the profunda femoris artery.
15. On the same day, 20 April 1996, the investigator commissioned a medical expert's report to establish the victim's wounds, whether any of them were in the stomach area, how they had been inflicted, what force had been used and whether his death had been inevitable or whether it could have been avoided by timely specialised medical assistance. It is unclear what was established by the medical expert.
16. On 15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B., were charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). They were questioned in the presence of their lawyers and then released into their parents' charge.
17. D.K. confirmed his previous statement but denied knowing anything about the stabbing of the victim. He was unable to determine whether he was guilty or not.
18. S.H., who was sixteen years old at the time, pled guilty to the offence with which he had been charged. He expressed his hatred for Gypsies and stated that the group had purposefully looked for someone from that minority group to attack. S.H. retracted his previous statement of 19 April 1996 in respect of who had perpetrated the stabbings (see paragraph 11 above) and implicated N.B. as having been responsible. As to why he was changing his testimony, he claimed that the members of the group had had an understanding always to implicate the first assailant if they were ever caught, which the latter had apparently suggested and condoned.
19. N.R., who was seventeen years old at the time, also pled guilty to the offence with which he had been charged. He also confirmed that they had purposefully looked for a Gypsy to attack, retracted his statement of 19 April 1996 (see paragraph 11 above) and implicated N.B. as having stabbed the victim.
20. N.B. (“the second assailant”), who was fifteen years old at the time, pled guilty to the offence with which he had been charged but denied any knowledge of the stabbings or of having perpetrated them.
21. On 22 May 1996 G.R.G., who was eighteen years old at the time, was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below) and questioned in the presence of his lawyer. He was then released but a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. In his statement, he pled guilty to the offence with which he had been charged and confirmed the attack was motivated by the victim's Roma ethnicity but was unable to indicate who had perpetrated the stabbings.
22. The seventh member of the group, S.K., was never charged as he did not participate in the attack on the victim.
23. Also on 22 May 1996 two witnesses were questioned, one of whom was I.D., a member of the group who had not been present during the attack on 18 April 1996. He gave a statement to the investigation that he had met the first assailant later on the same evening and that the latter had confided in him that the second assailant had stabbed a Gypsy whom they had attacked but that he had taken the knife from him after the attack. I.D. also stated that in a subsequent conversation with the second assailant on 6 May 1996, the latter had inquired what kind of sentence he might receive if he were to confess but that he was scared to do so for fear of being sent to a juvenile correctional facility. The other witness, N.D., gave a statement attesting to the aforementioned conversation.
24. On 23 May 1996 the first assailant was questioned again. He confirmed that the group had purposefully looked for a Gypsy to assault on the evening of 18 April 1996. The first assailant also stated that he had given N.B. his knife before the attack and that the latter had stabbed the victim, but that there had been no prior warning or agreement about the incident. Lastly, the first assailant confirmed that he had taken the knife back from N.B. after the attack and that there had been a general understanding in the group that he would take responsibility if they were ever to get caught, but that it had not been agreed for this instance in particular.
25. On 14 June 1996 the Shumen District Prosecutor's Office found that there was a lack of evidence that the first assailant had stabbed the victim, dismissed the charges against him and released him.
26. The charges against the first assailant were amended on 17 June 1996 and, like the other members of the group, he was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). A restrictive measure was imposed on him whereby he was placed under the supervision of an inspector from the Juvenile Delinquency Unit (инспектор към Детска педагогическа стая). He was also questioned in the presence of his lawyer, pled not guilty to the offence with which he had been charged and reiterated his statement of 23 May 1996.
27. On 21 June 1996 N.R. and S.H. were charged with having made false statements to the investigation authorities on 19 April 1999, accusing the first assailant of the offence of murder, which resulted in charges being brought against him (see paragraphs 11 and 13 above and 59 below). They were questioned and then released into the charge of their parents.
28. On 26 June 1996 the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 57 below). He pled not guilty to the offence and insisted that he had not stabbed the victim.
29. Due to their conflicting testimonies, a confrontation was organised on 3 July 1996 between the second assailant, N.R. and S.H. They each confirmed their previous statements.
30. On 15 April 1997 the results of the preliminary investigation were presented to the first and second assailants.
31. On 18 April 1997 the investigator in charge concluded in a report (обвинително заключение) that there was sufficient evidence against the assailants to obtain a conviction and that the case should proceed to trial. It is unclear when and whether the case file was transferred to the competent Prosecutor's Office.
32. A little more than a year later on 26 June 1998, a confrontation was organised between the second assailant and I.D. during which they confirmed their previous statements to the investigation.
33. On several occasions during the course of the preliminary investigation the applicants approached the investigator in charge with requests for information on the progress of the case. They were either refused information or were provided with scant details. Sometime in the spring of 1999 the lawyer of the applicants was granted access to the case file.
34. A confrontation was organised on 30 March 1999 between the second assailant and N.D., during which they confirmed their previous statements to the investigation.
35. On 6 April 1999 the second assailant petitioned the investigator to commission a medical report into his state of health, as he claimed to be suffering from a serious incurable disease. Such a report was ordered on 6 October 1999. The resulting medical report of 21 October 1999 established that the second assailant suffered from chronic pyelonephritis and back pain, which were typical for teenagers and would be naturally outgrown.
36. On 18 October 1999 the applicants filed a request with the investigator to be recognised as civil claimants in the criminal proceedings.
37. On 3 November 1999 the investigator commissioned a psychiatric evaluation of the second assailant. The resulting report, of an unknown date, found that he did not suffer from any serious psychiatric condition and that on the day of the attack his illnesses did not affect his understanding of the nature and consequences of his actions nor his ability to control them.
38. On 18 December 1999 the applicants filed a complaint with the Shumen Regional Prosecutor's Office, alleging that the investigation was being protracted. No apparent action was taken in response to their complaint.
39. A confrontation was organised on 12 January 2000 between the second assailant and N.R., at which they gave conflicting testimony in respect of a conversation they had had shortly after the attack on the subject of whether to blame the first assailant for the stabbing.
40. On 17 April 2000 the investigator recognised the first applicant as a civil claimant in the criminal proceedings.
41. Between 17 April and 1 June 2000 the results of the preliminary investigation were presented to the second assailant, the other five accused and the first applicant.
42. On 2 June 2000 the investigator in charge concluded in a new report that the case should proceed to trial, but proposed that the charges for falsely incriminating the first assailant be dismissed. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date.
43. On 3 July 2000 the Shumen Regional Prosecutor's Office remitted the case with instructions that S.K. be questioned concerning the reasons why the group had initially blamed the first assailant for the stabbing, that the accused undergo psychiatric evaluations as to whether or not on the day of the attack they understood the nature and consequences of their actions and could control them, and that the charges against the second assailant be amended.
44. On 11 October 2000 a confrontation was organised between the first and second assailants, at which they gave conflicting testimony in respect of who had had the knife at the time of the attack.
45. On 12 October 2000 S.K. was questioned and gave a statement that there had not been a prior understanding in the group that the first assailant would always take the blame, but that following the attack the group had met and the first assailant had informed them that he would take responsibility for what had happened.
46. On 23 March 2001 D.K. was questioned but declined to answer any questions.
47. The first assailant was questioned on 30 March 2001 and gave a statement attesting to the physical state of the second assailant at the time of the attack, the history of their relationship and his lack of knowledge as to any collusion by the other members of the group to help him by changing their respective testimonies.
48. The charges against the second assailant were amended on 2 April 2001 and a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. He was questioned and reiterated his previous statement that he had not been in possession of a knife during the attack and that he had not stabbed the victim. The results of the preliminary investigation were also presented to the second assailant on the same day.
49. Between 3 April and 4 June 2001 the results of the preliminary investigation were presented to the other five accused and the first applicant.
50. On 12 June 2001 the investigator in charge concluded in a new report that the case should proceed to trial. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date.
51. There was no development in the criminal proceedings during the following four years.
52. On 18 March 2005 the Shumen Regional Prosecutor's Office dismissed the charges of hooliganism of exceptional cynicism and impudence and of falsely incriminating someone before the authorities against all of the assailants who had been juveniles at the time of the attack – namely the first and second assailants, N.R., S.H. and D.K. – because the statute of limitation had expired in respect of them. Relying on the evidence collected and the tests conducted in the course of the preliminary investigation, the Shumen Regional Prosecutor's Office argued that the first assailant had stabbed the victim, given that he had had the knife and the victim's blood had been found on his clothes. It therefore dismissed the charges against the second assailant for negligent homicide resulting from an inflicted median bodily injury and remitted the case for further investigation, with instructions that the first assailant be again charged with murder stemming from an act of hooliganism (see paragraphs 12 above and 56 below). The only other remaining accused was G.R.G., who had been eighteen years old at the time of the attack and who continued to be charged with hooliganism of exceptional cynicism and impudence as the statute of limitation had not expired in respect of him (see paragraphs 21 above and 58 below).
53. On 22 April 2005 the applicants and the victim's three sisters filed a request with the authorities to be recognised as civil claimants in the criminal proceedings and claimed 75,000 Bulgarian levs (approximately 38,461 euros) in damages.
54. On 16 May 2005 the applicants' lawyer met with a prosecutor from the Shumen Regional Prosecutor's Office who informed him that the case file had been requested and was being held by the Ministry of Justice.
55. The Court has been informed of no further developments in the criminal proceedings.
56. For the offence of murder stemming from an act of hooliganism the Criminal Code, as in force in 1996, envisaged a sentence of fifteen to twenty years' imprisonment, life imprisonment or death (Article 116 (10)). In 1998 the death penalty was replaced with “life imprisonment without the possibility of substitution”. For juveniles aged from sixteen to eighteen years, the sentence was five to twelve years' imprisonment (Article 63 § 2 (1)) and for those from fourteen to sixteen years – up to ten years' imprisonment (Article 63 § 1 (1) and (2)). The statute of limitation was twenty-two-and-a-half years for juveniles aged from sixteen to eighteen years (Article 80 § 1 (2) in conjunction with § 2 and Article 81 § 3) and fifteen years for those aged from fourteen to sixteen years (Article 80 § 1 (3) in conjunction with § 2 and Article 81 § 3).
57. For negligent homicide resulting from an inflicted median bodily injury, the Criminal Code envisaged a sentence of two to eight years' imprisonment (Article 124 § 1), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3).
58. For hooliganism of exceptional cynicism and impudence, the Criminal Code envisaged a sentence of up to five years' imprisonment (Article 325 § 2 (2)), which for juveniles aged fourteen to sixteen years was up to two years' imprisonment (Article 63 § 1 (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3).
59. For making false statements to the authorities incriminating someone in having committed an offence, as a result of which charges were brought against that individual, the Criminal Code envisaged a sentence of one to ten years' imprisonment (Article 286 § 3), which for juveniles aged fourteen to sixteen years was up to three years' imprisonment (Article 63 § 1 (3) and (4)). The statute of limitation for such juveniles was seven-and-a-half years (Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3).
60. Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia, on racial grounds. The relevant part of the Article provides:
“1. [A person] who propagates or incites towards racial... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand.
2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race... shall be punished with imprisonment of up to three years and a public reprimand.
3. [A person] who forms or leads an organisation or group, the set goal of which is the perpetration of an offence under the preceding paragraphs, shall be punished with imprisonment of between one to six years and a public reprimand.
4. A member of such an organisation or group shall be punished with imprisonment of up to three years and a public reprimand.”
61. Article 163 of the Criminal Code criminalises, inter alia, racially motivated mob violence. The relevant part of the Article provides:
“1. Persons who participate in a mob rallied in order to attack groups of [people], individuals or their property because of their... racial affiliation shall be punished [as follows]:
(1) the instigators and leaders – with imprisonment of up to five years;
(2) the remainder – with imprisonment of up to one year or probation.
2. If the mob or some of its participants are armed, the punishment shall be:
(1) for the instigators and leaders – imprisonment of one to six years;
(2) for the remainder – imprisonment of up to three years.
3. If an attack is carried out and, as a result, a serious bodily injury or death occurs, the instigators and leaders shall be punished with imprisonment of three to fifteen years, while the remainder shall be punished with imprisonment of up to five years, unless they are subject to a more severe punishment.”
62. Articles 416 to 418 of the Criminal Code criminalise racially motivated genocide and apartheid.
63. Article 54 § 1 provides that domestic courts are to take into account, inter alia, the motives of the perpetrator when determining the sentence to be imposed.
64. Article 192, as in force at the relevant time, provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. The offences with which the assailants were charged were publicly prosecutable offences.
65. Under Article 237 § 6, as worded until 1 January 2000, a victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. After 30 April 2001 the victim had the right of appeal against such a decision by a prosecutor to the domestic courts. The victim had no other means to challenge a refusal to prosecute.
66. Victims of crime, or their successors, had the right to join the criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 60 § 1 and 63). They had the right to appeal against decisions of the courts which impinged on their rights and interests, which right they also had in respect of decisions of the investigating and prosecuting authorities until 2 May 2003 (Article 63 § 1).
67. The new Code of Criminal Procedure introduced separate rights in the criminal proceedings for victims or their heirs , such as the right to participate in them, to be informed of their progress and to appeal against decisions terminating or suspending them (Articles 74 and 75).
68. Victims of crime or their heirs have the right to join criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 84 § 1 and 87). They also have the right to appeal against decisions of the courts which impinge on their rights and interests (Article 87 § 1).
69. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. The Act created a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints (sections 40 and 50).
70. Section 9 of the Act provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference might be drawn that there had been discriminatory treatment, it is incumbent on the defendant to prove that there had not been a violation of the right to equal treatment.
71. Once successful before the Commission, a plaintiff can initiate a tort action for damages before the domestic courts (section 74 (1)). If the damages were caused to a private person as a result of an unlawful act, action or inaction by State bodies or officials, the action for damages has to be filed under the State Responsibility for Damage Act (section 74 (2)). No relevant case-law was presented by the parties or was identified as having been reported, to indicate whether or how frequently the aforementioned provision has been utilised in obtaining redress for acts of discrimination from State bodies and officials.
72. The State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides that (a) the State and municipalities are liable for damage caused to private and juridical persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) that in certain cases the State is liable for damage caused to private persons by the organs of the investigation, the prosecution and the courts (sections 1-2).
73. The relevant domestic law and practice under section 1 of the SMRDA has been summarised in the case of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006).
74. Section 2 of the SMRDA provides, as relevant:
“The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for unlawful:
1. detention..., if [the detention order] has been set aside for lack of lawful grounds;
2. accusation of a crime, if the [accused] has been acquitted or the criminal proceedings have been terminated on the grounds that the actions were not perpetrated by the [accused] or that the actions do not constitute an offence, or because the criminal proceedings were opened after the statute of limitations expired or the actions were amnestied;
3. conviction of a crime ..., if the person concerned is subsequently acquitted...;
4. imposition by a court of compulsory medical treatment..., if [the decision] has been set aside for lack of lawful grounds;
5. imposition by a court of an administrative measure..., if [the decision] has been set aside as unlawful;
6. execution of an imposed sentence in excess of the set term or amount.”
75. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law, as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС).
76. The relevant international instruments and comparative law on racist violence has been summarised in paragraphs 76-82 of the Court's judgment in the case of Nachova and Others v. Bulgaria [GC] (nos. 43577/98 and 43579/98, 6 July 2005).
VIOLATED_ARTICLES: 14
2


ITEMID: 001-87305
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GÄFGEN v. GERMANY
IMPORTANCE: 3
CONCLUSION: No longer a victim of a violation of Art. 3;No violation of Art. 6
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1975 and is currently detained in Schwalmstadt.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. J. was the youngest son of a renowned banking family in Frankfurt am Main. He got to know the applicant, a law student, as an acquaintance of his sister.
9. On 27 September 2002 the applicant lured J., aged eleven, into his flat in Frankfurt am Main by pretending that the child’s sister had left a jacket there. He then suffocated J.
10. Subsequently, the applicant deposited a letter at J.’s parents’ place of residence, stating that J. had been kidnapped by several persons. Only if the kidnappers received one million euros and managed to leave the country would the child’s parents see their son again. The applicant then drove to a pond at a private property near Birstein, one hour’s drive from Frankfurt, and hid J.’s corpse under a jetty at the pond.
11. On 30 September 2002 around 1 a.m. the applicant picked up the ransom at a tram station. From then on he was secretly observed by the police. He paid part of the ransom into his accounts and hid the remainder of the money in his flat. That afternoon, the police arrested him at Frankfurt am Main airport.
12. After having seen a doctor at the airport’s hospital on account of circulation trouble and skin lesions, the applicant was taken to the Frankfurt am Main Police Headquarters. He was informed by detective officer M. that he was suspected of having kidnapped J. and was instructed about his rights as a defendant, notably the right to remain silent and to consult a lawyer. He was then questioned by M. with a view to finding J. In reply, he suggested that the child was being held by another kidnapper. He was allowed to consult a lawyer, Z., for thirty minutes at his request. He subsequently stated that F.R. and M.R. had kidnapped the boy and had hidden him in a hut by a lake. M. and the applicant thereupon agreed to resume the questioning the following morning.
13. Early in the morning of 1 October 2002, before M. came to work, detective officer E., acting on the orders of the deputy chief of the Frankfurt police, D., told the applicant that he would suffer considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts. According to the applicant, the officer further threatened to lock him into a cell with two huge black people who would sexually abuse him. The officer also hit him once on the chest with his hand and shook him so that his head hit the wall on one occasion. The Government disputed that the applicant had been threatened with sexual abuse.
14. For fear of being exposed to the measures he was threatened with, the applicant disclosed the precise whereabouts of the child after approximately ten minutes of questioning.
15. As the applicant had declared that he would only agree to go to the place where he had hidden J. in the presence of detective officer M., he was then driven with M. and numerous other police officers to Birstein, without detective officer E. being present any longer. The police found J.’s corpse under the jetty at the pond near Birstein as indicated by the applicant. They recorded the discovery of the corpse on videotape.
16. The police detected tyre tracks left by the applicant’s car at the pond near Birstein. When questioned by detective officer M. on the way back from Birstein to the police station the applicant confessed to having kidnapped and killed J. The police further secured J.’s school exercise books, a backpack, clothes worn by J. when he was kidnapped and the typewriter used for the blackmail letter in containers indicated by the applicant on the way back to Frankfurt am Main. They further found almost all the ransom money and a note concerning the planning of the crime in the applicant’s flat. According to the autopsy carried out on J.’s corpse on 2 October 2002, the boy had died of suffocation.
17. The applicant consulted his lawyer En., who had been instructed by his mother and had tried in vain to contact and advise the applicant in the morning at the police station, on 1 October 2002 on his return from Birstein.
18. In a note for the police file dated 1 October 2002, the deputy chief of the Frankfurt police, D., stated that that morning J.’s life had been in great danger, if he was still alive at all, given his lack of food and the temperature outside. In order to save the child’s life, he had therefore ordered the applicant to be questioned by police officer E. under the threat of pain which would not cause any injuries. The treatment itself was to be carried out under medical supervision. D. further stated that he had ordered another police officer to obtain a “truth serum” to be administered to the applicant. According to the note, the applicant’s questioning was exclusively aimed at saving the child’s life rather than furthering the criminal proceedings concerning the kidnapping. As the applicant had already made a confession after having been threatened with pain by detective officer E., no measures had been carried out.
19. The applicant maintained his confession when questioned by the police on 4 October 2002, by a public prosecutor on 4, 14 and 17 October 2002, and by a district court judge on 30 January 2003.
20. On 9 April 2003, the first day of the hearing, the applicant, represented by counsel, lodged an application for the proceedings to be discontinued. He claimed that he had been threatened by detective officer E. on instructions from the deputy chief of the Frankfurt am Main police, D., with being subjected to severe pain and sexual abuse. He argued that his treatment had been in breach of Article 136a of the Code of Criminal Procedure and Article 3 of the Convention and warranted the discontinuation of the proceedings against him.
21. The applicant further lodged an application for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence against him on 1 October 2002, all further statements which he had made to the investigation authorities until the beginning of the hearing could not be relied upon in the criminal proceedings. Moreover, the applicant sought a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”).
22. On 9 April 2003 the Frankfurt am Main Regional Court dismissed the applicant’s application for the criminal proceedings against him to be discontinued. It found that the applicant had been threatened with considerable pain if he refused to disclose the victim’s whereabouts. However, the court did not find it established that the applicant had also been threatened with sexual abuse or had been otherwise influenced. The mere threat to cause the applicant pain had been illegal pursuant to Article 136a of the Code of Criminal Procedure, and also pursuant to Article 1 and Article 104 § 1, second sentence, of the Basic Law (see paragraphs 55-56 below) and Article 3 of the Convention, which underlay that provision.
23. However, this breach of constitutional rights did not bar criminal proceedings as such. In accordance with Article 136a § 3 of the Code, statements obtained through the use of prohibited methods of interrogation could not be relied upon in the criminal proceedings against the defendant. Likewise, the use of the investigation methods in question had not restricted the rights of the defence to such an extent that the criminal proceedings could no longer be conducted. Having regard to the seriousness of the charges against the applicant on the one hand, and to the severity of the unlawful conduct in the investigation proceedings on the other hand, there had not been such an exceptional and intolerable violation of the rule of law in the investigation proceedings as to bar the continuation of criminal proceedings.
24. In a separate decision also delivered on 9 April 2003 the Frankfurt am Main Regional Court, granting the applicant’s application to that effect, decided that in accordance with Article 136a § 3, second sentence, of the Code of Criminal Procedure, all confessions and statements hitherto made by the applicant before the police, a public prosecutor and a district court judge could not be used as evidence in the criminal proceedings against him.
25. The court found that on 1 October 2002 detective officer E. had used prohibited methods of interrogation within the meaning of Article 136a § 1 of the Code by threatening that the applicant would suffer pain if he did not disclose the child’s whereabouts. Therefore, it was prohibited to use as evidence statements which the applicant had made as a consequence of the use of this forbidden investigative measure. This exclusion of evidence (Beweisverwertungsverbot) did not only comprise the statements made immediately after the threat on 1 October 2002. Owing to the continuous effect (Fortwirkung) of the violation of Article 136a of the Code, all further statements which the applicant had made to the investigation authorities since that date could not be relied upon in the criminal proceedings.
26. The procedural irregularity caused by the use of a prohibited method of investigation could only have been remedied if the applicant had been informed before his subsequent questioning that the earlier statements he had made as a consequence of the use of forbidden investigation methods could not be used as evidence against him. However, the applicant had merely been instructed about his right as an accused not to testify, without having additionally been informed about the exclusion of the evidence that had been improperly obtained. He had therefore not been given the necessary “qualified instruction” (qualifizierte Belehrung) in the course of any of his hearings until then.
27. On the contrary, the Regional Court dismissed the applicant’s application for a declaration that on account of the violation of Article 136a of the Code of Criminal Procedure, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities as a result of the statements extracted from the applicant – the so-called “fruit of the poisonous tree” – was prohibited (“Fernwirkung”). That court found:
“On the contrary, there is no long-range effect of the breach of Article 136a of the Code of Criminal Procedure meaning that the items of evidence which have become known as a result of the statement may likewise not be used [as evidence]. The Chamber agrees in this respect with the conciliatory view (Mittelmeinung) taken by scholars and in court rulings ...’s fundamental rights – in the present case the threat of physical violence – and the seriousness of the offence he was charged with and which had to be investigated – the completed murder of a child – makes the exclusion of evidence which has become known as a result of the defendant’s statement – in particular the discovery of the dead child and the results of the autopsy – appear disproportionate.”
28. In his statement on the charges, made on the second day of the trial, the applicant admitted having killed J., but stated that he had not initially planned to do so. On the contrary, in his final statement at the close of the trial, after evidence had been taken between 9 April and 28 July 2003, he admitted that he had also planned from the outset to kill the child and had acted with that intent. He then described his confession as “the only way to accept his deep guilt” and as the “greatest possible apology for the murder of the child”.
29. On 28 July 2003 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of murder and kidnapping with extortion causing the death of the victim. It sentenced him to life imprisonment and declared that his guilt was of particular gravity (besondere Schwere der Schuld; see paragraph 59 below).
30. The court found that at the hearing the applicant had been instructed anew about his right as a defendant to remain silent and about the fact that all his earlier statements could not be used as evidence against him, and had thereby been given the necessary qualified instruction. The applicant had nevertheless again confessed that he had kidnapped and killed J. His statements at the trial concerning the planning of his offence formed the essential, if not the only, basis for the court’s findings of fact. They were supported by the testimony of J.’s sister, the blackmail letter and the note concerning the planning of the crime found in the applicant’s flat. The findings of fact concerning the execution of the crime were exclusively based on the applicant’s confession at the trial. Further items of evidence showed that he had also told the truth in this respect. These included the findings of the autopsy as to the cause of the child’s death, the tyre tracks left by the applicant’s car near the pond where the child’s corpse had been found, and the discovery of money from the ransom which had been found in his flat or paid into his accounts.
31. In assessing the gravity of the applicant’s guilt, the court observed that he had killed his eleven-year-old victim in order to be able to live in luxury with his wealthy friends and his girlfriend and to preserve his self-created image of a rich and successful young lawyer. It found that, contrary to the views expressed by the Public Prosecutor’s Office and the private accessory prosecutors, the fact that the applicant had volunteered a full confession at the trial, even though all his earlier confessions could not be used as evidence pursuant to Article 136a § 3 of the Code of Criminal Procedure, was a mitigating factor. However, even without his confession, the applicant would have been found guilty of kidnapping with extortion causing the death of the victim. The applicant had been kept under police surveillance after he had collected the ransom, which had later been found in his flat or paid into his accounts. Furthermore, it was proved by the autopsy on J.’s corpse that the boy had been suffocated, and tyre tracks left by the applicant’s car had been detected at the place where J.’s body had been found.
32. The court further observed that in questioning the applicant, methods of interrogation prohibited under Article 136a of the Code of Criminal Procedure had been employed inasmuch as the applicant had been threatened with pain in order to make him disclose the child’s whereabouts. Whether and to what extent detective officer E. and the deputy chief of the Frankfurt police, D., were guilty of an offence because of these threats had to be determined in the pending criminal investigations against them. However, their possibly illegal acts did not mitigate the applicant’s own guilt. The misconduct of police officers, belonging to the executive power, could not prevent the judiciary from assessing findings of fact in accordance with the law.
33. On 29 July 2003 the applicant lodged an appeal on points of law with the Federal Court of Justice, submitting his grounds of appeal on 1 December 2003 in particular. He complained that the Regional Court, in its decision of 9 April 2003, had refused to discontinue the criminal proceedings against him. He argued that on 9 April 2003, he had lodged an application for the proceedings to be discontinued. At the same time, he had applied for a declaration that owing to the continuous effect (Fortwirkung) of the threat of violence on 1 October 2002, all further statements which he had made to the investigation authorities could not be relied upon in the criminal proceedings. He had also requested the court to declare that since the confession had been obtained from him by threats, the use in the criminal proceedings of all items of evidence, such as the child’s corpse, which had become known to the investigation authorities because of the statements extracted from him was prohibited (“Fernwirkung”). The applicant included a full copy of these applications of 9 April 2003, including the grounds given for them, in his submissions giving reasons for his appeal on points of law. He further included a copy of the Regional Court’s decision of 9 April 2003 dismissing his application for the proceedings to be discontinued and argued in respect of the police’s threats against him that, developing the case-law of the Federal Court of Justice, such conduct “leapt beyond” the exclusion of evidence and led to an impediment to the proceedings (“dass ein derartiges Verhalten das Verwertungsverbot ‘überspringt’ und ein Verfahrenshindernis begründet”).
34. In his observations dated 9 March 2004 the Federal Public Prosecutor argued that the applicant’s appeal on points of law should be dismissed as manifestly ill-founded. He argued that the use of prohibited methods of interrogation, such as a threat of torture, did not lead to an impediment to the criminal proceedings. Article 136a of the Code of Criminal Procedure expressly provided that the use of any of the prohibited methods enumerated entailed only the exclusion of evidence. The applicant had not complained of a breach of Article 136a § 3 of the Code of Criminal Procedure. In any event, there would be no grounds for such a complaint as the Regional Court had only used the applicant’s full confession at the trial, which he had made after having been informed that his previous statements had not been admitted as evidence.
35. On 21 May 2004 the Federal Court of Justice, without giving further reasons, dismissed the applicant’s appeal on points of law as ill-founded.
36. On 23 June 2004 the applicant lodged a complaint with the Federal Constitutional Court. Summarising the facts underlying the case and the content of the impugned decisions, he complained under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law about the way in which he had been questioned by the police on the morning of 1 October 2002. He argued that he had been threatened with being subjected to severe pain and sexual abuse if he did not disclose the child’e within the meaning of Article 3 of the Convention and infringed Article 104 § 1 of the Basic Law. It also violated his absolute right to human dignity under Article 1 of the Basic Law, which lay at the heart of the provisions in question. Because of these unjustifiable human-rights violations, there was both a bar to the criminal proceedings against him and a prohibition on using the items of evidence obtained as a consequence of the confession extracted from him in the course of the proceedings.
37. On 14 December 2004 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for examination as it was inadmissible.
38. Firstly, in so far as the applicant complained of the failure of the criminal courts to discontinue the proceedings against him, the court found that he had not sufficiently substantiated his complaint. It observed that the Regional Court had already stated that the police’s threat to inflict pain on the applicant had violated Article 136a of the Code of Criminal Procedure and Article 3 of the Convention. Because of this threat, the applicant’s rights under Article 1 § 1 and Article 104 § 1, second sentence, of the Basic Law had been disregarded in the investigation proceedings.
39. However, the violation of fundamental rights outside the trial did not necessarily warrant the conclusion that the judgment delivered by a criminal court, which was based on the findings made during the trial, breached constitutional law. In the present case, the criminal courts had found that the methods of investigation used by the police had been prohibited, but had differed from the applicant as to the legal conclusions to be drawn from that finding. They had taken the view that the use as evidence of the statements obtained as a result of the measures in question had been prohibited but that there had been no bar to the criminal proceedings altogether.
40. According to the Federal Constitutional Court, there would not have been a violation of fundamental rights if the procedural flaw of having applied prohibited methods of investigation could be regarded as having been remedied by the criminal courts, because they had prohibited the use as evidence of the statements obtained thereby. Such a prohibition was prescribed by Article 136a § 3 of the Code of Criminal Procedure in order to compensate for a prior infringement of the rights of the person concerned. On the contrary, the circumstances in which substantial procedural irregularities might entail a bar to criminal proceedings were not laid down in law. In these circumstances, the applicant had failed to explain why the contested methods of investigation had not only entailed a prohibition on using the statements obtained thereby as evidence, but had led to a bar to criminal proceedings against him.
41. Secondly, the Federal Constitutional Court found that, in so far as the applicant complained that the Regional Court had refused to exclude the use in the proceedings of all items of evidence obtained as a result of the confession extorted from him by threats (“Fernwirkung”), his constitutional complaint was likewise inadmissible. The applicant had failed to raise this issue in the proceedings before the Federal Court of Justice.
42. The decision was served on the applicant’s lawyer on 22 December 2004.
43. On 20 December 2004 the Frankfurt am Main Regional Court convicted detective officer E. of coercion committed by an official in the course of his duties. It cautioned the defendant and imposed a suspended fine amounting to 60 daily payments of 60 euros (EUR), which the defendant would be required to pay if he committed another offence during the probation period. Furthermore, the court convicted the deputy chief of the Frankfurt police, D., of having incited E., a subordinate, to commit coercion in the course of his duties. It also cautioned D. and imposed on him a suspended fine amounting to 90 daily payments of EUR 120. The applicant had given evidence as a witness in these proceedings.
44. The Regional Court found that on the morning of 1 October 2002 D. had ordered that the applicant was to be questioned while being subjected to pain in the manner set out in his subsequent note for the police file. By doing so, he had acted against the advice of all his subordinate heads of department entrusted with the investigation into J.’s kidnapping. The heads of department had disapproved of the measure he had ordered and had proposed an approach entailing further questioning and confrontation of the applicant with third persons instead. D. had personally ordered detective officer E. to threaten the applicant with physical violence, which was to be carried out by another specially trained police officer. The measure had been aimed at finding out immediately where the applicant had hidden J., whose life he had considered to be at great risk. In order to save J.’s life, E. had threatened the applicant in the manner ordered by D.
45. The Regional Court observed that the method of investigation had not been justified as an act of necessity, because it violated human dignity as codified in Article 1 of the Basic Law. Respect for human dignity also lay at the heart of Article 104 § 1, second sentence, of the Basic Law and Article 3 of the Convention. The protection of human dignity was absolute. Allowing exceptions or a balancing of interests would breach a taboo.
46. In determining the sentences, the Regional Court notably took into consideration that the defendants’ sole concern had been to save J.’s life and that they had been under extreme pressure because of their respective responsibilities vis-à-vis the superior authority and the public. They had been completely exhausted at the relevant time and had acted in a very tense and hectic situation. Moreover, D. had openly taken responsibility for his acts by admitting and explaining them in a note for the police file on the same day. The proceedings had lasted a long time and had attracted immense media attention. Both defendants had suffered prejudice in their professional career: D. had been transferred to the Hessian Ministry of the Interior, and E. had been prohibited from carrying out measures relevant to the prosecution of criminal offences. Furthermore, it was the first time that a conflict situation such as the one in the defendants’ case had been assessed by a German criminal court.
47. The judgment became final on 20 December 2004.
48. D. was subsequently transferred to the Police Headquarters for Technology, Logistics and Administration and was appointed its chief.
49. On 28 December 2005 the applicant applied to the Frankfurt am Main Regional Court for legal aid with a view to bringing official liability proceedings against the Land of Hesse for the payment of compensation. He claimed that he had been traumatised by the methods of police investigation applied against him, inter alia the threat of being subjected to pain if he did not disclose J.’s whereabouts, further threats of sexual abuse and slaps, and was in need of psychological treatment.
50. In its submissions dated 27 March 2006 the Frankfurt am Main Police Headquarters contested that E.’s conduct when questioning the applicant in the morning of 1 October 2002 was to be legally qualified as coercion and amounted to a breach of official duties.
51. On 28 August 2006 the Frankfurt am Main Regional Court dismissed the applicant’s application for legal aid.
52. On 28 February 2007 the Frankfurt am Main Court of Appeal dismissed an appeal by the applicant against the refusal to grant him legal aid. Endorsing the reasons given by the Regional Court, it confirmed in particular that the police officers D. and E., when threatening the applicant, had infringed human dignity, which was inviolable, and had thus breached their official duties. However, the applicant would not be able to prove that the threats of torture uttered against him had caused mental damage necessitating psychological treatment. It was obvious that the officers’ threat for a short period of time was negligible compared to the traumatisation caused by the fact that he had killed a child. Moreover, even assuming that the applicant would be able to prove that police officer E. had shaken him, as a result of which his head had hit a wall on one occasion, and had once hit him on the chest, allegedly causing a haematoma near his collarbone, the physical damage caused thereby would be too minor to necessitate the payment of compensation for non-pecuniary damage. The violation of the applicant’s human dignity by the threat of torture did not warrant the payment of compensation either as the applicant had obtained sufficient satisfaction by the exclusion of his statements as evidence and the criminal conviction of the police officers responsible for the threats.
53. On 19 January 2008 the Federal Constitutional Court, allowing a constitutional complaint by the applicant, quashed the Court of Appeal’s decision and remitted the case to that court. It found that in refusing to grant the applicant legal aid, the Court of Appeal had violated the principle of equal access to court. In particular, that court had speculated that the applicant would not be able to prove that the threat to torture him had led to mental damage and had thus refused to take the necessary evidence (in the main proceedings). In addition to that, it was not obvious that the physical injuries the applicant claimed to have suffered in the course of the interrogation could be considered to be of secondary importance in view of the threats uttered against him. Moreover, the question whether the violation of the applicant’s human dignity necessitated the payment of damages despite the satisfaction he had obtained as a result of the criminal conviction of the police officers involved was a difficult legal question on which no precedent existed in a judgment of a court of final instance, and which should therefore not be determined in legal-aid proceedings.
54. The proceedings are currently pending before the Frankfurt am Main Court of Appeal.
55. Article 1 § 1 of the Basic Law, on the protection of human dignity, reads as follows:
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all State authority.”
56. Article 104 § 1, second sentence, of the Basic Law, on the rights of persons in detention, provides:
“Persons taken into custody may neither be subjected to mental nor to physical ill-treatment.”
57. Article 136a of the Code of Criminal Procedure, on prohibited methods of interrogation (verbotene Vernehmungsmethoden), provides:
“(1) The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited.
(2) Measures which impair the accused’s memory or ability to understand and accept a given situation (Einsichtsfähigkeit) shall not be permitted.
(3) The prohibition under subsections (1) and (2) shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.”
58. By Article 211 of the Criminal Code, the intentional killing of a person is to be qualified as murder if certain aggravating elements are present. A murderer is notably a person who kills another out of cupidity, treacherously or in order to cover up another offence. Murder is punishable by life imprisonment.
59. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, among other things, have a bearing on a subsequent decision as to whether or not to suspend the remainder of the defendant’s prison sentence on probation. Article 57a of the Criminal Code states that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, provided that this can be justified in the interests of public security and the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-103260
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KHARCHENKO v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 4. The applicant was born in 1958 and lives in Kyiv.
5. On 21 April 2000 the Prosecutor of the Vatutinsky District of Kyiv (“the Vatutinsky District Prosecutor”) instituted proceedings with regard to embezzlement of funds of the company R. The applicant was originally a witness in the case.
6. On 4 April 2001 the Vatutinsky District Prosecutor instituted criminal proceedings against the applicant on suspicion of his involvement in the embezzlement.
7. On 7 April 2001 the Vatutinsky District Prosecutor decided that the applicant should be detained, as he was suspected of a crime punishable by imprisonment.
8. On 17 May 2001 the investigator instituted another criminal case against the applicant on suspicion of his involvement in embezzlement and joined it to the first criminal case against the applicant.
9. On 3 June 2001 the same prosecutor decided that the applicant's detention should be extended to 4 July 2001.
10. Between 27 June and 6 September 2001 and on 14 September 2001 the applicant and his lawyer studied the criminal case file.
11. On 14 September 2001 the applicant was indicted for theft.
12. On 28 September 2001 the indictment was approved by the Vatutinsky District Prosecutor. The case was transferred for examination on its merits to the Vatutinsky District Court of Kyiv (“the Vatutinsky Court”).
13. On 26 September 2001 the applicant's advocate lodged a request with the Vatutinsky Court seeking the applicant's immediate release.
14. On 5 October 2001 the Vatutinsky Court received the case file and on 12 October 2001 Judge K. of the Vatutinsky Court held a preparatory hearing in the case.
15. On 15 October 2001 Judge K. decided that the criminal case against the applicant should be remitted for additional investigation. He also rejected the applicant's request for release of 26 September 2001, finding no grounds for changing the preventive measure applied by the prosecutor. In particular, the court stated that the applicant had been detained on the basis of the prosecutor's decision since 7 April 2001 in order to prevent him from avoiding investigation and appearance in court, obstructing the establishment of the truth in the criminal case and continuing with criminal activity, and in order to ensure compliance with procedural decisions in cases where the law provides for deprivation of liberty for more than three years. No time-limit for detention was fixed.
16. On 29 January 2002 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the resolution of 15 October 2001 and remitted the case for examination on the merits to the Desnyansky District Court, Kyiv (formerly Vatutinsky District, but after changes to the judicial districts in Kyiv “the Desnyansky Court”).
17. On 4 March 2002 the Desnyansky Court held a preparatory hearing in the case. It examined the applicant's request to be released on bail and found no reasons for allowing it. It also noted that the applicant had been detained lawfully, given that criminal proceedings against him were pending.
18. On 11 March 2002 the applicant's lawyer requested the Desnyansky Court to order the applicant's release. This request was refused the same day. The court considered that the applicant might evade and obstruct justice and, given his age, state of health, family status and economic status there were no grounds for replacing the detention with another preventive measure. On 14 March 2002 the court rejected a similar request by the applicant on the same grounds, adding that the seriousness of the charges had also been taken into account. Two more similar requests by the applicant were rejected by the court on 4 and 19 April 2002 on the same grounds.
19. On 29 April 2002 the Desnyansky Court ordered that the case be again remitted for additional investigation. The court also upheld the applicant's detention, noting without further elaboration that there were no grounds for changing the preventive measure. No time-limit for detention was fixed.
20. On 23 July 2002 the Court of Appeal quashed the resolution and remitted the case for re-examination on the merits. The court also noted that it had no legal basis for deciding on the applicant's request for release and considered that the conclusions of the first-instance court on the matter were lawful, reasoned and corresponded to the case file materials. Therefore, it left the preventive measure unchanged.
21. In August 2002 the Court of Appeal ordered the transfer of the criminal case from the Desnyansky Court to the Golosiyevsky District Court of Kyiv (“the Golosiyevsky Court”).
22. On 28 August 2002 the Golosiyevsky Court ordered a hearing on the merits on 13 September 2002.
23. On 14 October 2002 Judge C. resumed examination of the case on the merits and informed the applicant's lawyer that she had decided not to remit the case for additional investigation. The court also rejected the applicant's request for release, on the ground that he might avoid and obstruct justice.
24. On 17 October 2002 the defence challenged Judge C.
25. On 24 December 2002 Judge C. of the Golosiyevsky Court decided to remit the case for additional investigation. It also decided that there were no grounds for changing the preventive measure in respect of the applicant.
26. On 13 March 2003 the Court of Appeal quashed the decision of 24 December 2002 and returned the case to the Golosiyevsky Court for examination on the merits. It also decided again that the applicant should remain in custody, as he had been charged with serious offences which would warrant deprivation of liberty after conviction.
27. On 13 May 2003 the Golosiyevsky Court decided that the case should be remitted for additional investigation to the Vatutinsky District Prosecutor. It also ordered the applicant's continued detention, without giving any particular reasons for it. The court also rejected the applicant's request for termination of the proceedings in the case.
28. On 28 July 2003 the Supreme Court rejected the applicant's request for leave to appeal on points of law lodged against the decision not to terminate the proceedings, as the applicant had failed to comply with procedural formalities.
29. On 4 August 2003 the Desnyansky District Prosecutor released the applicant from detention. The applicant signed an undertaking not to abscond.
30. On 30 August 2003 the applicant's advocate unsuccessfully requested the prosecution to amnesty the applicant, in view of the nature of the charges brought against him and his poor state of health.
31. On 24 October 2003 the criminal investigation was adjourned because one of the suspects was being searched for.
32. On 30 December 2003 the investigator of the Desnyanskiy Distirct Prosecutor's Office terminated the criminal proceedings against the applicant on all but two of the charges, for lack of evidence of his involvement in the crime. The criminal case concerning the remaining charges was transferred to the Desnyanskiy District Police Department.
33. On 18 September 2004 the investigator of the Desnyanskiy District Police Department terminated the criminal proceedings against the applicant concerning the remaining charges for lack of evidence of crime and initiated criminal proceedings in respect of crimes committed by an unknown person. This decision appears to have been mistakenly dated 18 September 2003 instead of 18 September 2004. Next day the criminal proceedings were suspended for failure to establish the identity of the suspected offender.
34. Between 20 April 2001 and 4 August 2003 the applicant was held in the Kyiv SIZO no. 13, a detention facility with, according to the applicant, poor prison conditions and insufficient medical treatment.
35. According to the Government, in that facility the applicant was held in the following cells:
- cell No. 30, measuring nine square metres and designed for three inmates;
- cell No. 64, measuring 52.36 sq. m and designed for twenty inmates;
- cell No. 66, measuring 53.07 sq. m and designed for twenty-one inmates;
- cell No. 68, measuring 61.19 sq. m and designed for twenty-four inmates;
- cell No. 72, measuring 10.21 sq. m and designed for four inmates;
- cell No. 76, measuring 9.92 sq. m and designed for three inmates;
- cell No. 116, measuring 10 sq. m and designed for four inmates;
- cell No. 117, measuring 9.96 sq. m and designed for three inmates;
- cell No. 128, measuring 15.95 sq. m and designed for six inmates;
- cell No. 195, measuring 22.44 sq. m and designed for eight inmates;
- cell No. 258, measuring 23.38 sq. m and designed for five inmates;
- cell No. 263, measuring 24.9 sq. m and designed for six inmates;
- cell No. 326, measuring 12.9 sq. m and designed for five inmates;
- cell No. 328, measuring 12.9 sq. m and designed for five inmates;
- cell No. 333, measuring 12.9 sq. m and designed for eight inmates;
- cell No. 336, measuring 12.9 sq. m and designed for five inmates.
All the cells had a constant supply of cold water, natural and artificial light, a separated toilet and ventilation. The number of detainees did not exceed the number of places in each cell.
36. According to the applicant, he was not held in cells 333 and 336. Cells 64, 66 and 68 had 40 bunks each. Cell 72, measuring 9 sq. m, was damp and very cold in winter. In this latter cell he spent in total about 18 months. In cell no. 195, which had very poor ventilation, he spent about six months in total.
37. According to the Government, the applicant had a full medical examination on arrival at the SIZO on 20 April 2001. He did not make any complaints about his health and was registered for follow-up (диспансерний облік) in respect of his chronic illnesses.
38. On 16 November 2001, 24 April 2002 and 15 April 2003 the applicant had regular medical check-ups and was X-rayed. The examination revealed no lung problems.
39. According to a medical certificate issued on 6 December 2001, the applicant had a mild form of diabetes and required a special diet but not medical treatment.
40. According to a medical certificate issued on 10 July 2002 the applicant had been diagnosed with ischaemic heart disease, stenocardia and diabetes.
41. On 15 January 2003 the applicant was examined by a cardiologist, who found him to be suffering from ischaemic heart disease and stenocardia.
42. On 27 January 2003 the applicant asked for medical assistance, complaining of chest pain and dizziness. Following a medical examination it was decided to place the applicant in the medical wing of the SIZO. From 28 January 2003 the applicant was treated in the medical wing of the SIZO, with a diagnosis of neurocirculatory dystonia and cervical osteochondrosis. The applicant was prescribed several different types of medication. Every third day he was examined by a general doctor. On 29 January 2003 he was examined by the cardiologist who found that the applicant had no heart problems. On 30 January 2003 the applicant was examined by a neuropathologist. On 11 March 2003 the applicant left the medical wing of the SIZO in a satisfactory state of health. Following this treatment, and until his release from detention, the applicant did not consult doctors with any health-related complaints.
43. Following his release, the applicant underwent medical treatment in Kyiv Hospital no. 15 for arrhythmogenic cardiomyopathy and ciliary arrhythmia from 7 to 27 August 2003.
44. Article 253 of the Code of Criminal Procedure provides that having decided to commit an accused for trial, the judge should resolve, among other things the issue concerning the change, discontinuation or application of a preventive measure. Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 3942, 4 March 2010).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4


ITEMID: 001-93716
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SÖKMEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Şinasi Sökmen, is a Turkish national who was born in 1949 and lives in Adana. He was represented before the Court by Mr İ. Gül, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 February 1993 the General Directorate of National Roads and Highways decided to expropriate the applicant’s land in Gölbaşı, Ankara. The applicant brought an action in the Gölbaşı Civil Court on 20 December 2001, seeking increased compensation.
On 7 April 2004 the Gölbaşı Civil Court awarded the applicant 891,192,000 Turkish liras (TRL) by way of additional compensation, plus interest at the statutory rate. Both parties appealed. In the meantime the applicant initiated execution proceedings through the Ankara Enforcement Office on 1 July 2004. The Court of Cassation upheld the first-instance court’s decision on 14 September 2004.
The authorities paid a total of 3,565.07 new Turkish liras (TRY) to the Enforcement Office on 5 May 2005. The applicant withdrew the payment on 15 February 2006.


ITEMID: 001-77852
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LUKJANIUK v. POLAND
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1960 and lives in Gołdap, Poland.
5. In September 1994 the applicant entered into a contract with the Białystok Poultry Company. Under the terms of the contract, the applicant bought 11,733 chicks from the company which she was to raise for a period of two months. Subsequently, the applicant was to deliver the chickens to the company against a payment of an agreed price. In November and December 1994 the applicant purchased foodstuff from a company in Kętrzyn to feed the birds. Subsequently, about 60% of the chicks died.
6. On 1 March 1995 the applicant filed a compensation claim with the Suwałki Regional Court against the company producing the foodstuff. She asserted that her chicks had died as a result of being fed the foodstuff purchased from the company. The defendant company contested its liability for the damage sustained by the applicant. On an unspecified date the applicant increased her claim.
7. The first hearing was fixed for 2 June 1995, but the Regional Court adjourned it due to the applicant’s absence. However, it appears that the applicant’s lawyer was present at that hearing. The next hearing was held on 30 June 1995. On 7 September 1995 the Regional Court visited the site. Subsequent hearings were held on 21 December 1995, 8 February and 12 December 1996, 5 May and 23 June 1997, 9 February and 23 March 1998. On 5 January 1998 one of the experts was heard by the Warsaw District Court at the Suwałki Regional Court’s request.
8. The Regional Court ordered the preparation of three veterinary reports. On 8 February 1996 it ordered that a second report be drawn up. However, that report was only submitted to the court on 12 November 1996. The preparation of a third report was ordered on 12 December 1996 at the applicant’s request as she had contested the expert findings in the previous reports. The third report was submitted to the court on 23 March 1997.
9. On 31 March 1998 the Regional Court delivered its judgment. It awarded the applicant PLN 5,616, which represented 15% of the compensation sought, together with statutory interest. It ordered the applicant to pay PLN 4,320.82 for the outstanding court fee. It also held that the applicant was not required to reimburse the litigation costs of the defendant company.
10. On 21 April 1998 the applicant filed an appeal against the Regional Court’s judgment. The defendant company also filed an appeal.
11. On 16 July 1998 the Białystok Court of Appeal held a hearing. On 30 July 1998 the Court of Appeal upheld the first-instance judgment for the most part. It amended it only in respect of the litigation costs of the defendant company. It ordered the applicant to cover a part of those costs (PLN 1,200), having regard to her difficult financial situation.
12. On 10 September 1998 the applicant filed a cassation appeal with the Supreme Court against the judgment of the Court of Appeal. On 14 March 2000, in reply to her query, the applicant was informed by the Supreme Court that due to the large number of cassation appeals pending before that court a hearing would be held approximately two years from the date of lodging the cassation appeal.
13. On 2 February 2001 the Supreme Court held a hearing. It dismissed the applicant’s cassation appeal on the same day.
14. On 11 June 2001 the Suwałki Regional Court issued an execution warrant on behalf of the applicant. On 27 September 2001 the Bailiff of the Kętrzyn District Court stayed the enforcement proceedings at the applicant’s request. On 2 October 2001 and 8 January 2002 the applicant requested the Suwałki Regional Court to amend the execution warrant due to the change of the defendant company’s name. That warrant was issued on 9 April 2002. On 14 May 2002 the Regional Court’s judgment of 31 March 1998 was successfully enforced.
15. On 27 September 2001, at the applicant’s request, the President of the Suwałki Regional Court suspended until 31 May 2002 the obligation to pay the court fees. On 3 June 2002 the applicant paid PLN 2,000 as part of the outstanding court fees. On 27 June 2002 the President of the Regional Court agreed that the applicant could pay the remaining court fees in 24 monthly instalments.
16. The legal provisions applicable at the material time as well as matters of practice concerning the remedies against unreasonable length of proceedings are set out in paragraphs 26-35 of the judgment delivered by the Court on 30 May 2006 in the case of Barszcz v. Poland, no. 71152/01.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82107
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KHANYAN v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The applicant, Ms Alyona Khanyan, is an Armenian national who was born in 1977 and lives in Yerevan.
The applicant was a refugee from Azerbaijan who fled to Armenia in 1990. In accordance with a number of governmental decisions, the applicant – together with other refugees – was placed in a flat in a building previously owned by the Central Committee of the Communist Party and used as the Party’s graduate school.
On an unspecified date, the applicant instituted proceedings against the Yerevan Mayor’s Office (Երևանի քաղաքապետարան) seeking to obtain title to the above flat. She claimed that the flat was ownerless and that she had bona fide, manifestly and continuously been in possession of the flat for ten years, which entitled her to acquire ownership of it in accordance with Article 187 of the Civil Code. The Governmental Department for the Management of Public Property (ՀՀ կառավարությանն առընթեր պետական գույքի կառավարման վարչություն) was also joined as a defendant.
On 28 April 2004 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) granted the applicant’s claim. No appeal was lodged, so this judgment became final and enforceable on 13 May 2004.
On 27 May 2004 the applicant’s title was formally registered and the relevant ownership certificate was provided to her.
On an unspecified date, the Deputy General Prosecutor (ՀՀ գլխավոր դատախազի տեղակալ) lodged a cassation appeal on points of law against this judgment with the Court of Cassation (ՀՀ վճռաբեկ դատարան), in accordance with Article 223 § 2 of the Code of Civil Procedure.
On 17 September 2004 the Court of Cassation granted the appeal and quashed the judgment of 28 April 2004. The Court of Cassation found that the flat in question, in accordance with the decision of the Supreme Soviet of Armenia of 17 April 1991 and the Law on Public Property, was in State ownership and, therefore, the applicant was not entitled to acquire ownership under Article 187 of the Civil Code. The case was remitted to the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) for a new examination.
On 13 October 2004 the Civil Court of Appeal examined the applicant’s claim anew. The applicant and the two defendants, namely the Yerevan Mayor’s Office and the Governmental Department for the Management of Public Property, made their submissions. Having heard the parties, the Court of Appeal decided to dismiss the applicant’s claim on the ground that she had failed to provide evidence of bona fide, manifest and continuous possession of the flat in question.
The applicant lodged a cassation appeal on points of law and procedure.
On 26 November 2004 the Court of Cassation dismissed the applicant’s cassation appeal on the ground that the flat in question was in State ownership and was in the possession of the applicant not as her own property but as a temporary place of residence.
According to Article 37, public authorities are entitled to institute court proceedings seeking to defend the pecuniary interests of the State. The public authority which has instituted proceedings enjoys all the rights of a plaintiff and bears his responsibilities. If the relevant public authority does not institute proceedings, the proceedings seeking to defend the pecuniary interests of the State shall be instituted by the public prosecutor in accordance with the Law on the Public Prosecutor’s Office.
According to Article 140, judgments of first instance courts enter into force fifteen days after their delivery. According to Article 205, appeals against judgments of first instance courts which have not entered into force can be brought by the parties and persons who were not parties to the proceedings but whose rights and obligations were affected by the judgment. According to Articles 206 and 207, such appeals can be brought within fifteen days after the delivery of the judgment of the first instance court and are examined by the Civil Court of Appeal.
According to Article 219, judgments of the Court of Appeal enter into force fifteen days after their delivery. According to Article 223 § 1, appeals against judgments of the Court of Appeal which have not entered into force can be brought by the parties and persons who were not parties to the proceedings but whose rights and obligations were affected by the judgment.
According to Article 222 § 1, judgments of first instance courts and the Court of Appeal which have entered into force can be reviewed through cassation proceedings. According to Article 223 § 2, appeals against judgments of first instance courts and the Court of Appeal which have entered into force may be brought by (1) the General Prosecutor of Armenia and his deputies in cases prescribed by Article 37 of this Code and in accordance with the Law on the Public Prosecutor’s Office; and (2) advocates holding a special licence and registered with the Court of Cassation.
According to Article 224, cassation appeals shall be examined by the Civil and Commercial Chamber of the Court of Cassation.
According to Article 225, a cassation appeal can be lodged on (1) points of law or a procedural violation of the parties’ rights; or (2) on the ground of newly discovered circumstances. A cassation appeal on the ground envisaged by the first paragraph of this Article can be lodged within three months from the date of entry into force of the judgment.
According to Articles 235 and 236, the Court of Cassation shall review the judgments on the basis of the grounds presented in the appeal. The Court can either dismiss the appeal, or otherwise quash the whole or part of the judgment and remit the case for a new examination by the Court of Appeal.
According to Articles 237 and 238, the Court of Cassation shall adopt a decision. The Court of Cassation is not entitled to establish or consider as proven circumstances which have not been established by the contested judgment or have been rejected by it, to determine whether or not this or that piece of evidence is trustworthy, to resolve the issue of one piece of evidence having more weight than another or the issue of which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.
According to Article 239, the decision of the Court of Cassation enters into force from the moment of its delivery and is not subject to appeal. According to Article 241, a copy of this decision shall be sent to the appellant, to the parties and to the relevant court within seven days from its adoption.
According to Article 27, where a violation of pecuniary interests of the State has been disclosed, the public prosecutor or, upon his instruction, the relevant public authority or public official shall institute court proceedings.
According to Article 28, the General Prosecutor can lodge appeals against court judgments and decisions according to the relevant rules of criminal and civil procedure. Such appeals can be also lodged by the subordinate prosecutors within the limits of their competence. The public prosecutor is entitled to ask the court for the case file of any case in which a final judgment or a decision has been taken. The public prosecutor, if he considers the court judgment or decision to be unlawful or unsubstantiated, shall lodge an appeal with the superior court.
According to Article 178, a property is considered ownerless if it has no owner or its owner is unknown or has renounced his ownership in respect of that property. Ownership of an ownerless immovable property can be obtained by virtue of adverse possession (Article 187).
According to Article 187, a citizen or a legal person, who is not the owner of an immovable property but has bona fide, manifestly and continuously possessed it as his own property for a period of ten years, shall obtain ownership in respect of that property (adverse possession).