ITEMID: 001-67984
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MENTEŞE AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 2 with regard to deaths;Violation of Art. 2 with regard to lack of effective investigation;No violation of Art. 3 and 8 with regard to deaths;No violation of Art. 5;No violation of Art. 3 and 9 and P1-1 with regard to alleged destruction of homes;Not necessary to examine Art. 6-1;Violation of Art. 13 with regard to deaths;No violation of Art. 13 with regard to alleged destruction of homes;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 10. The applicants, who were born in Lice, currently reside in Diyarbakır.
11. The facts of the case are in dispute between the parties.
12. On the night of 12 May 1994 and in the early hours of 13 May 1994, the applicants heard gun fire coming from outside their village of Yolçatı, located in the administrative jurisdiction of the Lice District within the province of Diyarbakır. The firing continued until approximately 5 a.m. Subsequently, soldiers entered the village and told all the villagers to gather at the village mosque.
13. The applicants alleged that the following took place:
14. On 12 May 1994 the applicant was at home with his family. During the night he heard gun fire coming from outside the village. In the early hours of 13 May his son, Kamil Menteşe, left to take the livestock out of the village. The soldiers stopped his son, checked his identity card and released him.
15. When the soldiers entered the village, they ordered all the villagers to gather near the village mosque. They asked them whether there were any PKK members in the area and whether they had been giving them food. The villagers replied that PKK activities were frequent in the area. Thereafter, the soldiers started to burn the houses in the village. At that time, the applicant’s son returned to the village and was taken away by the soldiers together with three other villagers. The applicant, together with the remaining villagers, was sent away from the village. After two days, they were allowed to go back to the village. When they came back, they saw that the village had been burned down. The next day, the applicant went to the Lice public prosecutor and to the military authorities to inquire into his son’s whereabouts. However, he received no reply. On 17 May 1994, five days after the incident, the corpses of twenty-six persons, including Kamil Menteşe, Sabri Akdoğan, Abdulvahap Maço and Yusuf Bozkuş, were found near the village. The corpse of the applicant’s son was found five hundred metres away from the others. The body was taken to the Lice Health Clinic and was subsequently buried in the Lice cemetery.
16. The applicant and her family lived in the hamlet of Beğendik in the Yolçatı village. On the night of 12 May 1994 the applicant was at home with her family. At about 11 p.m. they heard gun fire near their house. It continued until 5 a.m. In the morning of 13 May, the applicant’s brother in-law, Yusuf Bozkuş, led the animals towards the Yolçatı village. Yusuf was about 60 years old and he was of unsound mind. At the same time, the applicant and her children tried to leave the hamlet. However, they were not able to go very far as the area was surrounded by soldiers. From a distance, the applicant saw her house catch fire. On the evening of 13 May the applicant and her children stayed in the forest and saw smoke rising from the surrounding hamlets and villages. Early in the morning of 14 May, they headed towards Lice.
17. On 15 May 1994 the applicant heard from her neighbours that her brother-in-law, Yusuf Bozkus, had been arrested by the security forces near the Yolçatı village together with six other villagers. Upon receiving this information, the applicant attempted to search for Yusuf. However, as the roads were blocked with panzer tanks, she could not go back there. When she returned to Lice, her children told her that Yusuf’s body had been found and identified by Yusuf’s brother, Hasan Bozkuş. According to Hasan Bozkuş, Yusuf’s skull was completely shattered and there were five bullet holes in his chest.
18. The applicant went back to the village one month later and saw that her house had been burned down.
19. The applicant and her children were in the village on the evening of 12 May 1994. They heard gun fire throughout the night. On 13 May, at 6 a.m., soldiers arrived in the village and told the villagers to gather around the mosque. The applicant and her children accordingly went to the mosque. The commander then ordered the soldiers to start burning the houses. The applicant’s house was burned down along with others. Subsequently, all men who were under 60 years old were ordered to leave the village together with a soldier. The applicant saw Sabri Akdoğan, Abdulvahap Maço, Reşit Demirhan and Kamil Menteşe being taken away by a soldier. After some time, the applicant heard gun fire from the direction where the men had been taken, and she subsequently saw a couple of soldiers coming back to the village from that direction.
20. The applicant was in the village of Yolçatı on the night of 12 May 1994. In the early hours of 13 May at about 6 a.m., the village was surrounded by soldiers, who arrived in the village by vehicles, panzers and a helicopter. The villagers were ordered to gather around the mosque and they were interrogated about PKK activities. The soldiers then began burning down the houses. The village men who were under 60 years old were asked to leave the village with the soldiers. Upon this order, the applicant’s son Reşit Demirhan, who was 48 years old, together with Sabri Akdoğan and Abdulvahap Maço, were taken away by the soldiers. The applicant was sent to Lice with the remaining villagers. He tried to get information as to the whereabouts of his son. However, the soldiers did not allow him to look for him. After two days, the applicant returned to the village. The following day, some villagers went to the Lice public prosecutor to obtain information about the missing villagers. The body of the applicant’s son was subsequently found near the village together with the bodies of Sabri Akdoğan, Hasan Bayram, Mehmet İlkkaya, Yusuf Bozkuş, Fahri Bayram, Ramazan Bayram, Ekram Bayram, Abdulvahap Maço and Kamil Menteşe. Kamil’s body was found five hundred metres away from the other bodies. The applicant heard that there were twenty-six bodies at the scene of incident. The body of the applicant’s son was buried on 16 May 1994 in Diyarbakır.
21. The applicant lived in the village of Yolçatı. When the firing stopped at around 5 a.m. on 13 May 1994, the applicant fled from the village. While running away, she saw a helicopter land in the village. She saw smoke rising from the village. Two weeks later when she returned to the village, she saw that her house had been burned down.
22. The applicant and his family lived in a hamlet of the Yolçatı village. On the night of 12 May 1994 they heard gun fire. It continued until 5 a.m. When the firing stopped, the applicant and his family tried to go to Lice. While they were passing near the Yolçatı village, they were stopped by soldiers and the applicant’s son, Abdulvahap Maço, was taken away by the soldiers. The applicant was able to witness smoke rising from the nearby villages and hamlets in the area. The applicant and the rest of the family members continued towards Lice and stayed there with relatives for two days. On 15 May 1994 the applicant was informed by some villagers that his son Abdulvahap Maço had been found dead together with four other villagers, Reşit, Hasan, Yusuf and Sabri. The applicant subsequently went to the Lice public prosecutor and the leader of the Council and told them about the incident. However, they both responded that there was nothing they could do to help him. When the applicant received permission to collect his son’s body, he went back to the village. He saw that the village had been burned. He subsequently found the corpse of his son behind some rocks. There were several bullet marks on the body. The applicant took his son’s body to the Lice Health Clinic and subsequently buried him in Lice.
23. The Government denied the allegations submitted by the applicants. They informed the Court that an armed clash had taken place on 13 and 14 May 1994 in the vicinity of the Dibek village, also attached to the Lice District. According to the Government, four soldiers had been killed during this incident.
24. In support of their submissions, the Government provided the full case file concerning the investigations into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço.
25. On 15 May 1994 the corpses of Reşit Demirhan, Sabri Akdoğan and Hasan Bayram were found in the vicinity of the Yolçatı village. These corpses were brought to the Lice Health Clinic by the villagers. After the bodies were officially identified, post-mortem examinations were carried out on the bodies by a doctor together with the Lice public prosecutor. The doctor perceived that rigor mortis had set in and bruising had appeared on the body of Reşit Demirhan. He noted the presence of
a bullet entry hole under the right eye and a bullet exit hole measuring 5 x 6 cm. in the occipital area, which had cracked the skull and caused heavy damage to the brain;
a bullet entry hole on the left side of the chest and an exit hole on the fourth vertebra, measuring 5 x 3 cm, which had caused damage to the spine;
a bullet entry hole on the lower right side of the abdomen and a bullet exit hole, measuring 2 x 2 cm. on the right side of the thigh;
a bullet entry hole on the front exterior side of the left arm and a bullet exit hole on the interior side of the left arm;
a bullet entry hole on the front part of the left arm and a bullet exit hole in the palm of the left hand; and
scars possibly caused by gunshot wounds on some parts of the body.
No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body.
26. On 16 May 1994 the villagers found the body of Abdulvahap Maço near the village of Yolçatı. The body was brought to the Lice Health Clinic. Together with the Lice public prosecutor, the doctor conducted a post mortem examination. In the report, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found
a bullet entry hole above the left eyebrow and a bullet exit hole in the occipital region measuring 6 x 10 cm., as a result of which the skull had been shattered and the brain heavily damaged;
two adjacent bullet entry holes on the left side of the neck;
two adjacent bullet exit holes on the right side of the neck, under the chin;
a bullet entry hole on the left leg and a bullet exit hole in the calf measuring 2 x 8 cm;
two wounds, one on the back of the right ankle measuring 4 x 2 cm. and another on the front part of the ankle measuring 3 x 4 cm, possibly caused by bullets;
a fractured tibia; and
a bullet entry hole on the right calf and a bullet exit hole above the right knee, causing a wound measuring 10 cm., which had damaged tissue and fractured the lower part of the femur.
No other signs were observed on the body. As the cause of death was found to be the destruction of the brain by gun shots, it was decided not to carry out a classical autopsy on the body of Abdulvahap Maço.
27. On 17 May 1994 the bodies of Yusuf Bozkuş and Kamil Menteşe were also found by the villagers near the mountains in the vicinity of the Yolçatı village, and were brought to the Lice Health Clinic. The body of Kamil Menteşe was identified by his father Abdullah Menteşe and the body of Yusuf Bozkuş was identified by his brother. The doctor conducted post-mortem examinations in the presence of the Lice Public Prosecutor.
In the report on the body of Yusuf Bozkuş, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found
a bullet entry hole in the chin, and a bullet exit hole, measuring 10 x 15 cm. which had caused heavy damage to the brain; and
three bullet entry holes in the left collar bone area, the right collar bone area and the right side of the neck, and three bullet exit holes, two in the shoulder blade area and one under the left underarm.
No other signs were observed on the body.
In the report on the body of Kamil Menteşe, it was noted that rigor mortis had set in and bruising had appeared on the body. The doctor also found
a bullet entry hole in the neck and a bullet exit hole above the right shoulder blade;
a bullet entry hole in between the shoulder blades, and a bullet exit hole in the front part of the right underarm, measuring 2 x 3 cm;
a lateral wound measuring 10 cm. in the femur area which had been caused by a sharp object;
a wound which had been caused by a sharp object, measuring 8 x 3 cm on the right biceps;
two further wounds on the right arm, caused by a sharp object;
a bullet entry hole on the lower interior part of the left knee and a bullet exit hole on the exterior part of the knee, measuring 4 x 5 cm;
scars due to gun shots on the left leg; and
the right ear of the deceased was missing for unknown reasons given the one week delay in the autopsy.
As the doctor had found that both Yusuf Bozkuş and Kamil Menteşe had died from gunshot wounds, he did not deem it necessary to perform a classical autopsy on the bodies.
28. The Government maintained that investigations were initiated to find the perpetrators of these killings. In this respect, they referred to the correspondence between the Lice public prosecutor and the Lice Gendarmerie Command. Copies of several letters, written by the prosecutor to the gendarme commander, asking the commander to conduct an investigation into the killings of Kamil Menteşe, Yusuf Bozkuş, Reşit Demirhan and Abdulvahap Maço were submitted to Court. The gendarme commander also sent regular reports to the prosecutor indicating that it had not been possible to locate or identify the perpetrators.
29. On 28 December 1998 the Lice public prosecutor took statements from two villagers, Mehmet Baltan and Ahmet Baltan, in connection with the killings of Kamil Menteşe and Yusuf Bozkus. In his statement, Mehmet Baltan explained that he did not know Yusuf Bozkuş or Kamil Menteşe but he had heard that someone from the Yolçatı village had been abducted and killed in May 1994. When interrogated about the killing of Yusuf Bozkuş and Kamil Menteşe, the second witness, Ahmet Baltan, explained that he had known Kamil and Yusuf. He also knew that these two villagers were found dead. However he had no knowledge as to who might have killed them.
30. On 31 January 2000 the Lice public prosecutor concluded that it had not been possible to establish the identities of the perpetrators of the killings of Kamil Menteşe, Yusuf Bozkus, Reşit Demirhan and Abdulvahap Maço. He accordingly decided to issue a continuous search warrant for the perpetrators of the killings, which would remain valid for twenty years, the statutory time limit under Article 102 of the Criminal Code. The prosecutor also instructed the authorities to continue pursuing a meticulous search for the perpetrators.
31. Subsequently on 16 September 2001, 23 March 2002, 4 September 2002, 10 September 2002, 20 December 2002 and 4 March 2003, gendarme officers attached to the Lice Gendarme Command went to the Yolçatı village for onsite inspections. In their respective reports, they stated that there was no new evidence concerning the incidents, and that the identities of the perpetrators could not have been established.
32. In respect of relevant domestic legislation, the Court refers to Ergi v. Turkey (judgment of 28 July 1998, Reports of Judgments and Decisions 1998IV, §§ 46-52) and Menteş and Others v. Turkey (judgment of 28 November 1997, Reports 1997VIII, §§ 36-50).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 13
14
18
2
3
5


ITEMID: 001-98126
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LUTOKHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1968 and lives in Gatchina, Leningrad Region.
5. On 10 July 2002 the Leningrad Regional Court convicted the applicant of abduction, robbery, aggravated robbery and extortion, and sentenced him to seven years' imprisonment.
6. The conviction and sentence were upheld on appeal on 19 December 2002.
7. By a decision of 27 October 2006 the Volgograd Town Court of the Volgograd Region released the applicant on parole.
8. The applicant was apprehended on 12 April 2001 and was placed in a temporary confinement ward of the police department of Gatchina (изолятор временного содержания отдела внутренних дел г. Гатчины). On 16 April 2001 he was transferred to remand centre IZ-47/1 of Saint Petersburg (следственный изолятор ИЗ-47/1 г. Санкт-Петербурга) where he was detained until 11 March 2003.
9. The parties' descriptions of the conditions of his detention differ on a number of counts.
10. The applicant submitted that his cell in the temporary confinement ward of the police department of Gatchina (“the temporary confinement ward”) had measured 20 m2, had been equipped with twenty-four sleeping places and had been shared by thirty-six people at the time. Inmates had received no bedding. The only window had been blocked with an iron blind that had allowed almost no ventilation.
11. As regards his detention in the remand centre, he had been held in six cells that had measured 8 m2 and had had six sleeping places. One of them, used for transfer purposes, had been shared by twenty-five people. The others had accommodated from eight to thirteen people. Inmates had received no individual bedding.
12. Ventilation had hardly been existent. The cells had been stuffy and damp. Iron blinds attached to cell windows had become extremely hot in the summer. During the winter time, inefficient heating had resulted in icing up of the exterior wall. The average inside temperature in the summer had risen up to +50o C and had fallen to -10o C in the winter.
13. The lighting had been insufficient and had been turned on round the clock.
14. A forty-minute walk in a small yard had been allowed only occasionally.
15. He had never witnessed any disinfection measures.
16. Hygiene conditions had been inadequate. A lavatory pan in the cells had not been partitioned from the living room and had allowed no privacy. It had not worked properly for a lack of pressure. Hot water had not been provided in the cells. Detainees had been allowed to shower in a common room for fifteen minutes once in ten-twelve days.
17. The nutrition and medical assistance had been poor.
18. The Government submitted no information as regards the conditions of the applicant's detention in the temporary confinement ward.
19. As to his detention in the remand centre, during the relevant period of time the applicant had been held in six cells. The size of the cells had been 8 m2. The exact number of inmates could not be established owing to a destruction of the facility's relevant records.
20. All cells had been equipped with six sleeping places and a dining table. A sink and a lavatory pan installed in the cells had been separated from the living area by a partition.
21. Each cell had had a window measured 1 x 1,1 m2 and had been equipped with ventilating shafts.
22. The cells had been lit with artificial lighting. The natural light coming through the windows had been sufficient to allow reading.
23. The applicant had been provided with an individual sleeping place and bedding.
24. Sanitary inspections, with regard to the monitoring of the average inside temperature and of the overall sanitary state of the cells, had been carried out on a regular basis.
25. Meals had been served three times a day. The nourishment had met official standards. The quality of the food had been controlled by a medical unit of the facility.
26. The applicant had received parcels. His state of health had regularly been monitored and he had been provided with medical assistance when that had been necessary.
27. He had never complained about conditions of his detention while in the remand centre
28. Article 8 of the Law on Detention on Remand (Federal Law no. 103-FZ of 15 July 1995) provides that persons detained in accordance with a court order should be held in remand centres.
29. According to Article 9, persons whose detention pending trial has not yet been ordered by the competent court should be held in temporary confinement wards. In exceptional circumstances, persons detained in remand centres can be transferred to and detained in temporary confinement wards for a period of no longer than ten days during a month (Article 13).
30. Article 23 provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Detainees should be given free of charge sufficient food for maintaining them in good health in line with the standards established by the Government of the Russian Federation (Article 22).
31. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows:
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private 'because they know that all complaints usually pass through the colony's administration'.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3


ITEMID: 001-79133
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OBERWALDER v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicants were born in 1931, 1959 and 1967 respectively and live in Domžale.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 8 July 1970 and 11 March 1971 respectively, four plots of land were sold to the Municipality by H.O., the late wife of the first applicant J.O. and the mother of the second and third applicants, J.O. jr. and A.O.
8. On 5 July 1973 and 4 June 1974, respectively, three plots of land were sold to the Municipality by the second applicant (J.O. jr.) and his brother (A.O.), the third applicant.
9. On 23 November 1973 and 10 September 1976 two plots of land were sold to the Municipality by J.O.
10. On 6 May 1992 the applicants lodged a request for the return of nine plots of land with the Domžale Administrative Unit on the basis of the 1991 Denationalisation Act, claiming that they had signed the contracts of sale under duress which was tantamount to expropriation.
11. On 7 June 1993 the Administrative Unit transferred their request to the Domžale Local Court (Okrajno sodišče v Domžalah) as the competent authority.
12. On 13 July 1994 a hearing was held. The court requested the applicants to complete their request and submit further documents.
13. On 28 September and 29 November 1994, 16 February 1995, 23 March, 23 May and 17 July 1995 the court sent a letter to the applicants' lawyer, reiterating its request. The court also informed the new lawyer representing the applicants that it had received no reply.
14. On 18 September 1997 the court summoned the applicants to complete their request within 30 days, or else it would reject it or consider it withdrawn.
15. On 3 November 1997 the applicants filed the requested document through their representative and enlarged their claim, directing it also against the Slovenian Compensation Corporation (the “SCC”). On 20 January 1998 the latter replied to the applicants.
16. Further to their reply, on 10 December 1998, 11 February and 26 April 1999 the court requested the lawyer to submit further documents.
17. On 14 May 1999 the applicants through their representative filed the requested documents which were forwarded to the SCC. The latter replied on 5 July 1999.
18. On 7 February 2001 the applicants specified the amount of compensation claimed.
On 14 February 2001 a hearing was held. Since some of the requested documents were still missing, the applicants' representative obliged himself to reply to the SCC's statements.
19. On 20 February 2001 the Municipality of Domžale filed a reply.
On 14 September 2001, further to the court's additional request, the applicants' representative filed submissions.
20. On 13 December 2001, after a hearing, the Local Court rejected the claim.
21. On 28 January 2001 the applicants lodged an appeal with the Ljubljana Higher Court (Višje sodišče).
22. On 15 January 2003 the Ljubljana Higher Court rejected their appeal. On 6 February 2003 the decision was served on the applicants. That decision became final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101221
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RIBIČ v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1971 and lives in Frankolovo.
6. On 7 March 1997 the applicant was injured in an accident at work. The applicant's employer had taken out insurance with the insurance company ZM.
7. On 3 September 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages for the injuries sustained. He also sought an exemption from paying court fees.
8. Between 27 December 1999 and 28 February 2001 the applicant lodged preliminary written submissions and adduced evidence four times.
9. The first hearing was held on 27 September 2000.
10. On 27 October 2000 the court appointed a medical expert. On 18 December 2000 the appointed expert submitted his report.
11. On 4 April 2001 the court held another hearing and decided to deliver a written judgment. The judgment, upholding the applicant's claim in part, was served on the applicant on 25 October 2001.
12. On 7 November 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). He also requested the first-instance court to rectify its judgment.
13. On 9 November 2001 the first-instance court rectified the judgment of 4 April 2001.
14. On 14 May 2003 the Celje Higher Court upheld the applicant's appeal in part and modified the first-instance court's judgment accordingly. That decision was served on the applicant on 5 June 2003.
15. On 20 June 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče), which was rejected on 1 April 2004 as the value of the claim fell below the statutory threshold. That decision was served on the applicant on 23 April 2004.
16. On 23 May 2007 the respondent Government were given notice of the application. The Government was asked to provide information as to whether section 25 of the 2006 Act applied in respect of the present case, which would enable the applicant to avail himself of domestic settlement proceedings before the State Attorney's Office (see Relevant domestic law below).
17. Subsequently, on 12 October 2007, the Government submitted that section 25 of the 2006 Act was not applicable in the present case since the applicant's right to a trial within a reasonable time had not been infringed in the impugned domestic proceedings. Therefore, the Government refused to offer the applicant a settlement proposal under section 25 of the 2006 Act.
18. The applicant did not comment on this issue.
19. The Act on the Protection of the Right to a Trial without Undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006 – “the 2006 Act”) became operational on 1 January 2007.
Section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within four months at the latest...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the court with jurisdiction under this Act. The party may bring an action within six months of receipt of the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67087
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DURMAZ AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 4. The applicants were born in 1980, 1977, 1979 and 1979 respectively.
5. On 27 and 28 April 1998 respectively the applicants were taken into police custody by police officers from the Anti-Terrorism Department of the Ankara Security Directorate.
6. On 7 May 1996 the applicants were brought before the public prosecutor at the Ankara State Security Court and subsequently before the investigating judge. After taking their statements, the investigating judge ordered that the applicants be placed in detention on remand.
7. In an indictment dated 23 May 1996, the public prosecutor at the Ankara State Security Court initiated criminal proceedings against the applicants and accused them of being members of an illegal armed organisation, namely the TIKP (the Revolutionary Communists’ Union of Turkey). The applicants were further accused of carrying out activities on behalf of the TIKB, such as taking part in demonstrations on 1 May and 8 March (Women’s Day) during which they had chanted slogans and distributed TIKB leaflets. The public prosecutor asked the court to convict the applicants pursuant to Article 168 § 2 of the Criminal Code.
8. On 9 October 1996 the Ankara State Security Court, composed of two civilian judges and a military judge, held that there was insufficient evidence to conclude that the applicants were members of the TIKP, but found them guilty under Article 169 of the Criminal Code for aiding and abetting an illegal organisation. The first, second and third applicants were sentenced to two years and six months’ imprisonment, while the second applicant was sentenced to three years and nine months’ imprisonment.
9. The applicants appealed. The chief public prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal on 24 December 1997. This opinion was not served on the applicants, but read out during the hearing which took place on 18 March 1998.
10. On 20 May 1998 the Court of Cassation, upholding the Ankara State Security Court’s reasoning and assessment of evidence, dismissed the applicants’ request for appeal. The decision was pronounced on 10 June 1998.
11. The applicants’ request for rectification was further rejected on 30 June 1998.
12. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98825
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KUROCHKIN v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
TEXT: 5. The applicant was born in 1955 and lives in Kyiv.
6. On 26 July 2004 the applicant and his wife, Mrs K., adopted V.G., an orphan boy born in 1993.
7. From January 2005, due to conflicts between the applicant's wife on one hand and the applicant and V.G. on the other, they ceased to keep a joint household and the applicant's wife subsequently moved to their summer house.
8. In October 2006 the applicant sought annulment of his marriage with Mrs K. before the Shevchenkivskyy District Court of Kyiv (the Shevchenkivsky Court).
9. On 27 October 2006 the child welfare authority of the Vyshgorod Administration (Вишгородська районна державна адміністрація Київської області) delivered its opinion, at the request of Mrs K., on annulment of the adoption of V.G. It found that the relations between the adoptee and Mrs K. were negative, while the applicant had authority over the adoptee and positive relations with him. The report also mentioned that the boy had expressed the wish to stay with his adoptive father and that the applicant was willing to take care of the boy's upbringing. It finally recommended cancelling the adoption with respect to the applicant and his wife, as the relations between the latter had deteriorated, which had a negative effect on the boy, so that it would not serve his interests to stay in his adoptive family.
10. In November 2006 the applicant's then wife requested the Vyshgorod Court to annul the adoption of the child by her and her husband, on the grounds that the child had attacked her physically on several occasions and that her husband, who had been present during one of the incidents, had refused to stop the attacks. She supported her claim by the report of 27 October 2006.
11. In the course of the proceedings both the applicant and the child objected to Mrs K.'s request for annulment of the adoption by the applicant. The applicant did not object to the annulment of the adoption in respect of Mrs K. He also denied that he had ever witnessed Mrs K. being physically attacked by V.G.
12. Meanwhile, on 6 March 2007 the applicant and Mrs K. divorced.
13. On 20 July 2007 the applicant married Ms V.T.
14. On 9 August 2007 the Shevchenkivskyy Court allowed the request of the applicant's former wife and annulled the adoption of V.G. by her and by the applicant. In particular, referring to Article 238 § 1 (3) of the Family Code, the court held that the adoption by the applicant's former wife was to be annulled in view of the fact that relations between her and the adoptee had worsened, rendering it impossible for them to live as a family. The court based its findings on the statements of Mrs K. and medical evidence of injuries sustained by her. The court also referred to the testimonies of neighbours of the family and a report on V.G.'s personality of 9 August 2006 provided by his school that stated that he behaved aggressively, insulted and threatened the neighbours and on some occasions had beaten some of his schoolmates. The report of 9 August 2006 also mentioned that this aggressive attitude and lack of respect for others were hereditary traits and required treatment by specialists. The child welfare authority supported the claims of Mrs K. and submitted that annulment of the adoption would be to the benefit of the boy.
15. The court further held that the adoption of V.G. by the applicant was also to be annulled in the best interest of the child, regardless of the child's wish to stay with his adoptive father, which had been expressed before the court. It found that the applicant had disregarded the child's aggressive attitude towards his adoptive mother, which had caused the child to develop a negative attitude towards women and misconceptions about normal family relationships. The court ordered the child to be transferred to the child welfare authority for subsequent placement in an unspecified specialised institution. V.G. continued to reside with the applicant and has never been taken into care.
16. On 28 August 2007 the Shevchenkivskyy Court divided the flat between the applicant and Mrs K., his former wife. They received a room each within the flat while other facilities remained in common use.
17. On 17 December 2007 the Kyiv City Court of Appeal upheld the judgment of 9 August 2007. It dismissed the applicant's appeal and found that he had not adduced any evidence testifying that he was able to influence the boy positively and secure his normal personal development. According to the court of appeal the adoption was correctly annulled by the first-instance court on the basis of Article 238 § 1 (3) of the Family Code, and the mere fact of positive relations between the applicant and the child and his desire to remain the boy's adoptive father could not serve as a basis for reversal of the above judgment. The court of appeal concluded as follows:
“The court correctly took into consideration that the annulment of the adoption ... could be also regarded as a sanction imposed on the boy for his disgraceful behaviour”
18. On 27 February 2008 the Supreme Court found no grounds to review the applicant's case in cassation.
19. On 3 June 2008 the Shevchenkivskyy District State Administration of Kyiv, at the request of the applicant and V.G. and in the interest of the latter, appointed the applicant guardian (піклувальник) of V.G. As guardian the applicant was entrusted with “protection of the rights and property interest of the child” and with “financial support and constant care for the boy's upbringing and his physical growth and development”.
20. On 11 September 2008 the applicant's former wife, Mrs K., lodged a claim with the Shevchenkivskyy Court and sought annulment of the decision of the Shevchenkivskyy District State Administration of Kyiv of 3 June 2008. She alleged that that decision had been taken in contradiction to the judgment of the Shevchenkivskyy Court given on 9 August 2007 and that V.G.'s residence in the flat posed a threat to her life.
21. On 23 September 2008 the Shevchenkivskyy Court assumed jurisdiction over the proceedings in the case. The parties did not inform the Court about further developments.
22. The relevant provisions of the Constitution read as follows:
“No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine...”
“...The family, childhood, motherhood and fatherhood are under the protection of the State.”
23. The relevant provisions of the Family Code of Ukraine read as follows:
“(...) 4. The participation of a child welfare authority is obligatory during the examination of the cases concerning ... annulment of adoption by a court.
5. The child welfare authority shall submit to the court an opinion as to settlement of the dispute. The opinion should be based on the information obtained after inspection of the living conditions of the child, parents, other persons that wish to reside with the child or to take part in its upbringing, and any other documents related to the case.
6. The court may disagree with the opinion of the child welfare authority provided it is ill-founded and does not serve the interests of the child.”
“1. Parents shall bring up their child in the spirit of respect for the rights and freedoms of others and of love for one's family, people and Motherland.
2. Parents shall take care of their child's health and well-being and of its physical, intellectual and ethical development.
3. Parents shall ensure that the child receives a full general secondary education...
4. Parents shall respect the child...
6. It shall be prohibited for parents to exploit their child.
7. It shall be prohibited for parents to apply corporal punishment to their child or any other punishment which may degrade the child's human dignity.”
“(...) 4. The adoption confers the same rights and imposes the same obligations on the adoptive parent in respect of the adoptee as the [biological] parents have in respect of their child.
5. The adoption confers the same rights and imposes the same obligations on the adoptee in respect of the adoptive parents as the [biological] child has in respect of its parents.”
“1. A court may order the annulment of adoption if:
1) the adoption contravenes the interests of the child, or does not ensure that the child is brought up in a family environment;
2) the child is mentally retarded, or suffers from a mental or other serious incurable illness, of which the adoptive parent was not aware and could not have been aware at the moment of adoption;
3) relations between the adoptive parent and the adoptee, independently of the adoptive parent's will, render it impossible for them to live together and for the adoptive parent to fulfil his or her parental obligations.”
“1. Orphans or children deprived of parental care may be placed under tutelage or guardianship.
2. (...) guardianship is assigned in respect of a child who is between fourteen and eighteen years old.”
“(...) The child welfare authority takes into consideration personal qualities, ability to bring up the child, attitude to the child and the wishes of the child itself when nominating a person as a tutor or guardian...”
“1. The tutor or guardian shall bring up the child, take care of the child's health and well-being and of its physical, mental and ethical development, and ensure that the child receives a full general secondary education (...)”
24. The relevant provisions of the Law read as follows:
“Children and parents shall not be separated against their will, except for cases when such a separation is necessary in the best interests of a child and is provided for by a legally valid court judgment”
25. This Resolution on judicial practice in cases related to adoption, deprivation and restoration of parental rights repeats the grounds for annulment of an adoption set out in Article 238 § 1 of the Family Code.
26. The relevant provisions of the Convention read as follows:
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence (...)”
27. The relevant provisions of the Convention read as follows:
“1. An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration.
2. An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority.”
VIOLATED_ARTICLES: 8


ITEMID: 001-85714
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FALK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Alexander Falk, is a German national who was born in 1969 and lives in Hamburg. He was represented before the Court by Mr G. Strate, a lawyer practising in Hamburg.
The applicant is chief executive officer of the ISION corporation and member of the board of directors and major shareholder of the Distefora Holding corporation, Switzerland.
On 5 June 2003, the Hamburg District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected of fraud and offences under the Stock Exchange Act on two occasions and in complicity with six other accused. The Hamburg District Court also found that the applicant was likely to abscond given his wealth, which would allow him to live abroad. His family bonds were not sufficient to prevent his absconding. Moreover, the applicant’s arrest was not disproportionate in view of the damage he had allegedly caused and given the sentence which he risked incurring if found guilty as charged.
On 31 July 2003, the Hamburg Regional Court amended the arrest warrant in view of the strong suspicion that the applicant had also committed fraud on two occasions. It also found that there existed the danger of absconding and prejudicing proceedings under Article 112 of the Code of Criminal Procedure.
On 14 November 2003, the Hanseatic Court of Appeal dismissed the applicant’s appeal against the decision of the Hamburg Regional Court of 31 July 2003.
On 29 January 2004, the Hamburg Regional Court dismissed the applicant’s appeal against the arrest warrant as amended on 31 July 2003.
On 20 February 2004, the Hanseatic Court of Appeal dismissed the applicant’s further appeal against the decision of the Hamburg Regional Court of 29 January 2004. It found that the arrest warrant was not unlawful in view of the alleged denial of access to the confiscated data. The court took the view that the present case was not comparable to cases in which the Federal Constitutional Court, the Federal Court of Justice or the European Court of Human Rights had regarded arrest warrants as unlawful, because the defence counsel had been denied access to the part of files which were necessary to respond effectively to the allegations which formed part of the arrest warrant. It found that the domestic courts had sufficiently observed the requirement to make available to the detained all materials which were important for the arrest. The applicant’s defence counsel had had unrestrained access to all documents, protocols of the interrogation and any other evidence on which the domestic courts had based their decisions concerning the arrest warrant. It could not be inferred from the available case-law that there existed an extended principle that the defence counsel should be given access to all other data which were seized by the investigation authorities or otherwise the arrest warrant had to be suspended.
Regardless of the above, the applicant’s defence counsel had been given access to all other documents that had been seized. The defence counsel’s motion of 24 October 2003 to have access to all data seized, which had been stored on some 500 CD-ROMs, had been granted by the Prosecutor’s Office on 27 October 2003 by offering access to the data in the premises of the Hamburg Office for Criminal Investigations (this offer had not been taken up by the applicant’s counsel). The defence counsel’s request to have access, in particular, to the data on the hard drive confiscated in the applicant’s flat was granted by handing over a copy version of the data on 22 January 2004. Prior to that, the defence counsel had been given a hard drive with these data in November and December 2003 which had however been defective. A further request by the defence counsel of 26 January 2004 to have access to data from the server of the applicant’s premises was granted by producing a copy of the data which was handed over to the defence counsel on 12 February 2004. The Hanseatic Court of Appeal reasoned that, even though it had not been possible to deliver the copy of the data from the entire server earlier, the arrest warrant could not be suspended as a consequence. The defence had not been deprived of any material which had been necessary to comment effectively on the allegations made in the arrest warrant. As far as there had been data on the server which had been relevant for the decisions regarding the arrest warrant, the defence counsel had already received a printed version. No other data had been used to decide on the arrest warrant.
On 31 March 2004, the Hanseatic Court of Appeal ordered the continuation of the arrest warrant of 31 July 2003. The Court of Appeal found that there had not been a violation of the right to a fair trial by refusing access to the confiscated data for the reasons set out in the decision of 20 February 2004. The voluminous material presented by the applicant’s counsel did not call into question the suspicion against the applicant.
On 10 May 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decision of the Hanseatic Court of Appeal of 31 March 2004.
Articles 112 et seq. of the Code of Criminal Procedure concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112, a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant.
Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides, of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-22).


ITEMID: 001-68688
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VEERMAE v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Mairold Veermäe, is an Estonian national who was born in 1977 and is currently serving a prison sentence in Finland. He was represented before the Court by Ms M. Lehtinen, a lawyer practising in Lahti. The respondent Government were represented by their Agent, Mr A. Kosonen, Director at the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 6 September 2001 the applicant was convicted by a Finnish district court of an aggravated narcotics offence and sentenced to nine years’ imprisonment. He had been detained since 19 January 2001. On 28 January 2002 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) ordered his expulsion to Estonia. The judgment and the expulsion order both became final.
On 5 December 2002 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) proposed to the Ministry of Justice that the applicant should serve the rest of his sentence in Estonia. The applicant and the Ministry of the Interior were invited to submit observations. The applicant objected to being transferred to Estonia, whereas the Ministry of the Interior agreed to the transfer.
On 13 March 2003 the Ministry of Justice ordered the applicant to serve the rest of his sentence in Estonia. It relied on section 19(2) of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act (Law no. 21/1987, as amended by Law no. 236/2001) (laki kansainvälisestä yhteistoiminnasta eräiden rikosoikeudellisten seuraamusten täytäntöönpanossa, lag om internationellt samarbete vid verkställighet av vissa straffrättsliga påföljder) and on the Additional Protocol to the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 167; Finnish Treaty Series no. 42/2001). The Ministry of Justice held, inter alia, that the applicant did not have particular bonds with Finland and that he had closer social ties to Estonia than to Finland.
The applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting the quashing of the Ministry of Justice’s decision. He argued that in Finland it would be possible for him to be released on parole on 18 July 2005 after serving half his sentence; in Estonia release on parole would only be possible after serving two-thirds of the sentence. Even then his release on parole would be discretionary as only 15% of inmates in Estonian prisons were released on parole, whereas the rest served their sentences in their entirety. The de facto sentence would thus be at least one and a half years longer in Estonia, or even twice as long as the sentence in Finland if no release on parole were granted in Estonia. He further claimed that some prisons in Estonia were old and overcrowded. The applicant relied on Articles 5 and 14 of the Convention, maintaining that his transfer to Estonia would place him in a discriminatory position compared to Finnish prisoners and also to other Estonian prisoners in Finland who were not transferred to Estonia. He further relied on the non bis in idem principle (Article 4 of Protocol No. 7 to the Convention).
In its opinion to the Administrative Court, the Ministry of Justice stated the following (as transcribed by the court):
“... Veermäe has been sentenced to nine years’ imprisonment, of which he will, as a first-time offender, be serving four years and six months. In Estonia it would be possible for Veermäe to obtain conditional release on having served two-thirds of his sentence, that is to say six years. [His] possibility of being released conditionally in Estonia is therefore not significantly smaller than in Finland and the Estonian legislation does not in this respect differ significantly from our own.”
On 19 June 2003 the Helsinki Administrative Court dismissed the applicant’s appeal, finding that, even though he was likely to serve a significantly longer prison sentence in Estonia owing to the differences in the possibility of being released on parole, this in itself did not violate Article 3 of the Convention. It also found that Article 3 would not be violated merely on account of the fact that prisons in Estonia were apparently old and overcrowded. It ruled out any discrimination as the International Cooperation in the Enforcement of Certain Criminal Sanctions Act, which naturally only applied to foreigners, provided an acceptable reason for the transfer.
The Administrative Court further held that the applicant’s transfer to Estonia would not breach Article 5 of the Convention either, as the sentence he would actually be serving there would not exceed the sentence imposed by the Finnish courts. No appeal lay against the Administrative Court’s decision..
On 26 September 2003 the Finnish Ministry of Justice requested the Estonian Ministry of Justice to consent to the enforcement of the sentence in Estonia. At the time of filing their observations, the Government submitted that the consent of the latter had still not been received.
On 24 August 2004 the applicant was transferred to a Finnish open prison facility.
Under Chapter 2, section 13 (as amended by Law no. 521/2003), of the Enforcement of Sentences Act (laki rangaistusten täytäntöönpanosta, lag om verkställighet av straff), a prisoner may be conditionally released after serving two-thirds or, exceptionally, half of the sentence, in the latter case provided that the prisoner has not served a prison sentence during the three years preceding the offence. The factors to be taken into account in the decision to release a prisoner conditionally include, inter alia, the nature of and the motives for the offence, the prisoner’s earlier lifestyle and his or her behaviour in prison, as well as the situation the prisoner would face on release.
Despite the authorities’ discretionary powers, it is very rare for conditional release to be postponed in Finland. A first-time prisoner is usually released after serving half the sentence.
Under Chapter 7, sections 1 and 2 (as amended by Law no. 580/2001), a prisoner may appeal to a district court against, inter alia, the postponement of his or her conditional release on serving two-thirds or half of the sentence (whichever is applicable under Chapter 2, section 13).
In a report (no. 2001:6), the Committee on Prison Sentences noted the following (on p. 11):
“... In the 1990s [conditional release] was almost never postponed. Following the instruction issued by the Department for Prison Administration of the Ministry of Justice in 1995 (no. 9/011/95) postponements have been very rare and almost exclusively based on the prisoner’s consent. ...”
It further observed (on p. 245):
“[The proposals now being made] would not change the existing legislation as regards the possibility of obtaining conditional release on serving two-thirds of a sentence. Nor would there be any change as regards those prisoners who had not served a term of imprisonment during the three years preceding their offence and who are [therefore] to be released on serving half their sentence. ...”
The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112 and Finnish Treaty Series no. 13/1987), including its Additional Protocol, is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
The Transfer Convention came into force in respect of Finland on 1 May 1987 and the Additional Protocol on 1 August 2001. They came into force in respect of Estonia on 1 August 1997 and 1 June 2000 respectively. Thus, they were in force on 6 September 2001 when the applicant was convicted by the district court.
Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer.
Article 9 (“Effect of transfer for administering State”) reads as follows:
“1. The competent authorities of the administering State shall:
(a) continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
(b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions.
...”
Article 10 (“Continued enforcement”) provides:
“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”
Article 11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
(b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
Article 3 § 1 of the Additional Protocol provides as follows:
“Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.”
The Administrative Courts Act (hallinto-oikeuslaki, lag om förvaltningsdomstolarna; 430/1999) provides that the administrative courts examine and decide such administrative appeals, disputes and other cases as fall within their competence under the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag; 586/1996) or other acts of Parliament. Section 24 of the International Cooperation in the Enforcement of Certain Criminal Sanctions Act provides that no appeal lies against the administrative court’s decision. The government bill concerning the Additional Protocol to the Convention on the Transfer of Sentenced Persons (HE 1/2001, p. 19) states:
“When considering a request for transfer, the Ministry of Justice should, in particular, pay attention to prison conditions in the State in which enforcement is being requested. The decision would also be affected, inter alia, by the most likely date on which the sentenced person would be conditionally released in accordance with the laws of the State of enforcement. Should the possibilities for conditional release in the State of enforcement be considerably weaker than in Finland, it might be unreasonable to request the transfer of the sentenced person.”
The Law Committee, having discussed the government bill, observed in its report (LaVM 2/2001):
“The prison conditions in the receiving State should be adequate to ensure that the prisoner will not be subjected to inhuman or degrading treatment or punishment. As a minimum, the conditions in which the prison sentence is served and its duration should not significantly differ from those applicable in Finland. Thus, transfers should also not take place where the legislation of the receiving State concerning the serving of sentences significantly differs from the Finnish legislation, for example in respect of the possibility of conditional release.”
The present case is the second one of its kind concerning Finland before the Court, the first application (Altosaar v. Finland (dec.), no. 9764/03, 15 June 2004) having been declared inadmissible by the Court as the applicant was no longer considered the victim of a violation within the meaning of Article 34 of the Convention following his release on parole in Finland. In that case the Estonian Government gave an account of the relevant domestic legislation and practice, a summary of which can also be found below.
Article 4 of the Penal Code, which replaced the Criminal Code on 1 September 2002, divides criminal offences into offences in the first degree and offences in the second degree. Criminal offences in the first degree are those for which the Penal Code prescribes a maximum penalty of imprisonment for a term of more than five years, life imprisonment or compulsory dissolution. A criminal offence in the second degree carries a term of imprisonment of up to five years or a pecuniary penalty.
In accordance with the Penal Code Implementation Act, which came into force on 1 September 2002, an offence committed prior to the entry into force of the Penal Code which is also punishable as a criminal offence under the Penal Code is assessed in the light of the corresponding Article of the Criminal Code in force at the time of the commission of the offence. If, after the entry into force of the Penal Code, a penalty is imposed for a criminal offence committed prior to the entry into force of the Penal Code, the penalty is based on the one provided for in the corresponding Article of the Criminal Code in force at the time of the commission of the offence, where the Article in question prescribes a lesser penalty.
The offence of unlawful handling of large quantities of narcotic drugs or psychotropic substances was punishable by one to five years’ imprisonment from 1 September 2002 to 1 January 2004 (Article 184 of the Penal Code), thus rendering the offence an offence in the second degree under the Penal Code. Since 1 January 2004 the offence has been punishable by one to ten years’ imprisonment, thus making the offence an offence in the first degree. The Criminal Code, valid until 31 August 2002 and in force at the time the applicant committed his offence (9 September 2000-19 January 2001), provided for a scale of penalties from three to seven years’ imprisonment.
Conditional release (release on parole) is governed by Article 76 of the Penal Code. If a person has been convicted of a criminal offence in the second degree, or a criminal offence in the first degree through negligence, the court may release the convicted offender conditionally if he or she has actually served at least half but not less than six months of the sentence imposed. If a person has been convicted of intentional commission of a criminal offence in the first degree, the court may release the person conditionally if the convicted person has actually served at least two-thirds of the sentence imposed. In deciding on conditional release, the court must take into consideration the circumstances relating to the commission of the criminal offence, the personality of the convicted offender, his or her previous personal history and conduct while serving the sentence, his or her living conditions and the consequences which conditional release may entail for him or her.
In transfer cases, Estonia has used the procedure of conversion of sentences on account of the fact that the criminal law in the sentencing States has, so far, provided for harsher penalties than those prescribed by Estonian law for the same criminal offences. Transfer cases are heard by the Tallinn City Court, which converts the sentence into one applicable for a similar offence under Estonian law. In Altosaar, the Estonian Government could not speculate as to the nature of the sentence, that being solely within the competence of the court. However, taking into account the relevant provisions of law and the current practice in transfer cases, they considered it likely that the penalty imposed in Estonia would be less severe than the one imposed in Finland and that the actual term of imprisonment would be no longer than it would have been in Finland. In that regard, they noted that at the time of the commission of the offence it had carried a penalty of three to seven years’ imprisonment. However, according to the wording of the Penal Code as in force until 1 January 2004, the penalty was imprisonment from one to five years and as this penalty was less severe it thus replaced the one prescribed by the Criminal Code. At the relevant time, therefore, the offence constituted a criminal offence in the second degree and conditional release would be possible after half the sentence had been served.
In 2003 six prisoners were transferred from Sweden to Estonia to continue serving their sentences. In all cases Article 9 § 1 (b) of the Transfer Convention was applied, as the penalty in Sweden was significantly harsher (a longer term of imprisonment) than that prescribed for similar offences under Estonian law. In Altosaar, the Estonian Government referred to a judgment delivered on 12 June 2003 by the Tallinn City Court. In that case an Estonian citizen had been convicted in Sweden of a serious drug-related offence and sentenced to nine years’ imprisonment. The Tallinn City Court converted the sentence and imposed one of five years’ imprisonment. In most of the conversion cases, the Tallinn City Court has alleviated the situation of the transferred persons, as the prison sentences imposed have been reduced. In Altosaar the Estonian Government submitted that they had no grounds to believe that the situation would be different regarding other comparable cases. A transferred prisoner had the possibility of bringing the case before the Tallinn City Court and he or she could submit any relevant information for consideration in the conversion of the sentence. An appeal lay to the Court of Appeal.
In 2003 a total of 2,205 inmates were released from Estonian prisons, 357 of whom were conditionally released, amounting to 16.6% of the total number released. The average percentage of persons released conditionally has remained stable at 15-18% of all prisoners released throughout the years.


ITEMID: 001-90998
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KANGUR v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Kalev Kangur, is an Estonian national who was born in 1968 and lives in Tallinn. He is represented before the Court by Mr M. Susi and Mr M. Hääl, lawyers practising in Tallinn.
The applicant was director general of the Estonian Land Board (Maa-amet) at the material time. On 18 August 2005 a criminal investigation was opened in respect of a number of land transactions involving the acquisition by private persons of plots of land covered by the rules on nature protection and the exchange of these plots for more valuable land owned by the State.
On 1 October 2006 the applicant was charged with abuse of his official position and taking a bribe. On 3 October 2006 he was taken into custody. His detention was authorised by the Harju County Court (maakohus) on 5 October 2006. On 25 October 2006 the Tallinn Court of Appeal (ringkonnakohus) dismissed an appeal by the applicant. That decision was not subject to appeal.
On 28 November 2006 the public prosecutor dismissed a request by the applicant for release. On 11 December 2006 a similar request was dismissed by the Harju County Court. The applicant's release was ordered by the public prosecutor on 21 December 2006.
In the meantime, the applicant appealed to the Supreme Court (Riigikohus), arguing that the provision of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) by which no appeal lay against a County Court decision concerning detention was unconstitutional. On 17 January 2007 the Supreme Court declined to examine the complaint on the merits as in accordance with the Constitution, the Convention and its case-law, it could do so only if the applicant had no other judicial remedy. However, in the case at hand he had had such remedies: his complaint against the County Court decision authorising his detention had been examined by the Court of Appeal and his subsequent request for release had been examined by the County Court.
On 23 January 2007 the Harju County Court, at the public prosecutor's request, suspended the applicant from serving as the director general of the Land Board for the duration of the criminal proceedings. On 15 February 2007 the Tallinn Court of Appeal upheld the decision, finding that his suspension had been lawful and well-founded as his continuing service would have adverse effects on the criminal proceedings. The Court of Appeal noted:
“... [S]uspension from office in the present case is a proportionate remedy as it is possible for [the applicant] to continue the commission of analogous criminal offences (on ... võimalik jätkata analoogsete kuritegude toimepanemist) specifically in connection with the post he holds; cooperation between [the applicant] and his subordinates is also complicated as the subordinates are witnesses in the present case.
...
The Court of Appeal finds that as criminal offences relating to abuse of power are involved, remaining in service in the same post would enable the suspect to continue the commission of criminal offences of the same kind (võimaldab ... samalaadsete kuritegude toimepanemist jätkata). ...”
That decision was not subject to appeal.
Article 141 § 1 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides as follows:
“A suspect or accused shall be suspended from office at the request of the Public Prosecutor's Office and on the basis of an order of a preliminary investigation judge or a court ruling if:
(1) he or she may continue to commit criminal offences (võib jätkuvalt toime panna kuritegusid) in the event that he or she remains in office;
(2) his or her remaining in office may prejudice the criminal proceedings.”


ITEMID: 001-60735
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LUNDEVALL v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. On 6 October 1986 the applicant, who was born in 1919, applied for disability benefits under the Social Insurance Act (Lagen om allmän försäkring, 1962:381; hereinafter “the 1962 Act”). He claimed that he was in need of assistance and had additional costs due to a speech impediment caused by a laryngectomy operation in 1979.
9. By a decision of 24 April 1987 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Västmanland rejected the application, finding that the applicant’s needs or costs were not such as to make him eligible for disability benefits.
10. On 27 December 1990 the applicant requested the Office to review its decision under chapter 20, section 10 a of the 1962 Act. He claimed that he had failed to fully state his need of assistance and his additional costs in the original application. On 27 April 1991 he asked the Office, alternatively, to consider his request as a new application and to grant him benefits as from November 1988.
11. On 12 July 1991 the Office found that there was no basis for a review of its earlier decision. Further, in regard to the applicant’s alternative claim, the Office noted that the applicant had reached the age of 65 in 1984 and that information relating to the time that followed could not be taken into account under the relevant rules. Consequently, the applicant’s alternative claim was rejected.
12. The applicant appealed to the County Administrative Court (länsrätten) of the County of Västmanland. On 13 November 1992 the court gave judgment in his favour. It considered that the Office’s first decision had been based on insufficient information and that the Office should therefore have reviewed that decision at the applicant’s request. It noted that, according to the two medical certificates in the case, the applicant had considerable additional costs due to his handicap. Consequently, he was entitled to disability benefits as long as his need of assistance and his additional costs, taken together, attained the level required under the 1962 Act. Accepting the information submitted by the applicant in this regard, the court found that that level had been attained and granted him a disability allowance as from July 1986. The court did not hold an oral hearing nor, apparently, did the applicant request one.
13. The National Social Insurance Board (Riksförsäkringsverket; hereinafter “the Board”) appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal (kammarrätten) in Stockholm, requesting that the Office’s decision of 12 July 1991 be confirmed. The Board claimed that the information in the case showed that, before the age of 65, the applicant had not suffered a functional impairment to such an extent that his need of assistance and extra expenses on account thereof had made him eligible for a disability allowance. Thus, the Office’s first decision could not be considered to have been incorrect due to it being based on incorrect or incomplete material. Consequently, there were no grounds for a review under the 1962 Act. The Board further requested the appellate court to stay the enforcement of the appealed judgment. The latter request was granted by a decision of 30 December 1992.
14. The applicant made submissions in response to the Board’s appeal. On 25 February 1993 he requested the Administrative Court of Appeal to hold an oral hearing in the case during which the person in charge of the case at the Office should give evidence relating to the meaning of its decision and the information on which it had been based. The applicant also asked the court to obtain the opinion of a medical expert.
15. On 12 November 1993 the Administrative Court of Appeal rejected both requests. In regard to the request for an oral hearing, the court, after having restated section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”; see further paragraph 23 below), gave the following reasons:
“Having regard to the subject-matter at issue and the information that has come to hand in the case, [the court] finds that an oral hearing is unnecessary and rejects the request to that effect.
[The applicant] is invited to state the further circumstances he wishes to invoke and submit his final written observations in the case within two weeks after having been notified of this decision.
The case can be determined notwithstanding a failure to submit such written observations.”
16. The applicant and the Board made further submissions. The applicant maintained that the Board had failed to adequately explain the reasons for its appeal and posed several questions to the Board. He requested that the court order the Board to clarify its position in the case. The court did not do so, however. The applicant’s submissions were, however, forwarded to the Board which replied that it maintained its position in the case. On account of the court’s refusal to order the Board to clarify its position and to hold a hearing, the applicant called into question the impartiality of the proceedings. By letters of 16 September 1994 and 10 January 1995 he reiterated his request for an oral hearing, stating that a hearing would give him the opportunity to ask questions to the Board and to present judgments in similar cases in support of his application for disability benefits. Furthermore, in assessing his condition, the court would benefit from having met him in person.
17. On 1 November 1995 the Administrative Court of Appeal rejected the applicant’s renewed requests for an oral hearing and gave judgment in favour of the Board. Thus, by 3 votes to 2, it quashed the County Administrative Court’s judgment and confirmed the Office’s decision of 12 July 1991. Without giving any further reasons, it considered that there had been no basis for a review of the Office’s first decision. The dissenting judges considered that the applicant was entitled to the disability allowance granted to him by the County Administrative Court and that, for this reason, there were exceptional reasons to change the Office’s decision.
18. The applicant appealed to the Supreme Administrative Court (Regeringsrätten). He requested that the case be referred back to the Administrative Court of Appeal for re-examination or, alternatively, that the Supreme Administrative Court confirm the County Administrative Court’s judgment. He complained about the lack of an oral hearing in the Administrative Court of Appeal and also requested the Supreme Administrative Court to hold an oral hearing. On 24 February 1997 the Supreme Administrative Court refused the applicant leave to appeal.
19. On 9 October 1996 the applicant made a renewed request for a disability allowance. By a decision of 12 December 1996 the Office found that he had special needs and costs due to his handicap which made him eligible for disability benefits under the 1962 Act. As an allowance could be given retroactively only for the two years preceding the application, the applicant was granted an allowance as from October 1994.
20. According to chapter 9, section 2 of the 1962 Act, a person who is ill or handicapped is entitled to disability benefits, provided that, before reaching the age of 65, he or she has become functionally impaired for a considerable time and to such a degree that he or she needs time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. The total need of support and assistance determines the eligibility for disability benefits and the amount of compensation. It is thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the Board’s guidelines, the total cost of all extra needs due to the disability should come to at least 28.5% of a basic amount geared to the price index (basbelopp) in order to make the individual eligible for an allowance. In 1987 and 1996, when the applicant made his applications to the Office, this corresponded to 6,868 and 10,317 Swedish kronor (SEK), respectively.
21. A decision by the Social Insurance Office under the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. Appeals may be made against the Office’s ordinary decision or a decision upon review under chapter 20, section 10 a of the 1962 Act.
22. The latter provision enables the Office to change a decision it has previously taken in order to rectify certain obvious defects of that decision, provided that it has not already been reviewed by a court. Thus, the Office must change its earlier decision if it contains a writing error, miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason. The question of changing a decision under section 10 a should, in principle, be raised within two years from the day the decision was taken. However, it may nevertheless be changed if it appears only after the elapse of this two-year period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons. A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned.
23. The procedure in the administrative courts is governed by the provisions of the 1971 Act. Section 9 provides:
“The proceedings are in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”
The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.
24. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).
25. It was further stated, in respect of the third paragraph of section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1