ITEMID: 001-114260
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MAKSIM PETROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1965 and is currently serving a sentence of life imprisonment in the town of Solikamsk, Perm Region.
6. In 1999 there were incidents in St Petersburg in which many elderly and sick people were attacked in their homes by a criminal posing as a doctor.
7. On 17 January 2000 the applicant, a doctor working for an emergency service, was caught on the spot while trying to enter an elderly person’s apartment. He was arrested on charges of multiple robbery and murder and has remained in detention since that date. The applicant submits that he was ill-treated during his arrest.
8. On 21 November 2003 the St Petersburg City Court examined the applicant’s criminal case and convicted him on multiple charges of murder, attempted murder and robbery. The applicant was sentenced to life imprisonment.
9. The court established that the applicant had posed as a doctor and, having entered his victims’ flats, injected them with soporifics, sometimes in lethal quantities, and then robbed them, killing some of them. In total, there were eleven victims in the case who either died or could have died as a result of the applicant’s criminal activity.
10. The conviction was based on several pieces of evidence, including the applicant’s bag with needles and prepared soporific materials, expert examinations of these materials, oral evidence given by numerous witnesses, including a pawnshop owner who had bought various items from the applicant on numerous occasions, the surviving victims, the applicant’s own statements and the autopsy reports on the victims.
11. During the proceedings the applicant complained that his lawyer had failed to take some investigative actions. The court examined this grievance, questioned both the applicant and his lawyer, and concluded that the lawyer’s lack of action had been due to the applicant’s own deliberate decision.
12. The applicant also tried to retract his self-incriminating statements given at the pre-trial stage of proceedings, with reference to torture and coercion. The court examined this argument in detail, having, among other things, ordered an additional investigation in the matter, and explicitly rejected it as unsubstantiated. The decisions to discontinue the investigation with reference to the lack of indication that any crime had been committed were taken by the relevant prosecutor’s office on 27 March and 14 May 2003.
13. They established that the applicant had actively resisted arrest and the police officers had therefore had to apply physical force. The decisions also concluded that the officers had only applied physical force in so far as it was rendered unavoidable by the applicant’s own conduct.
14. The applicant did not appeal against the prosecutor’s decisions to discontinue the investigation in court.
15. The applicant’s sentence was upheld by the Supreme Court on appeal on 24 June 2004.
16. It appears that the applicant was, among other things, dissatisfied with the fact that the first-instance court had consisted of a single judge. Having examined this argument, the appeal court noted that the applicant had been given a choice between the single judge composition and the composition consisting of a professional judge and two lay assessors. The applicant had explicitly chosen the former option.
17. It does not appear that the applicant brought any court proceedings in respect of the detention orders in his case.
18. Following his arrest on 17 January 2000 the applicant was placed in the Inter-district Temporary Detention Centre of the Principal Department of the Ministry of the Interior in St Petersburg (the Detention Centre, Межрайонный изолятор временного содержания ГУВД). He remained there until 28 January 2000.
19. The applicant submits that the conditions in the centre were terrible. The overcrowded cell measured no more than eight square metres without windows or ventilation. There were more than ten inmates in the cell. They were not provided with blankets or bed linen or with any opportunity to exercise or even walk. They were only given 300 ml of drinking water per day. There were no proper washing arrangements in the cells, the light was on all the time and there was an exceptionally high humidity level.
20. On 28 January 2000 the applicant was transferred to remand prison IZ-45/1 in St Petersburg (later renumbered IZ47/1). It appears that he was transported back to the Detention Centre from time to time during the investigation stage of the proceedings. His stay in the centre usually lasted for no more than ten days.
21. According to the applicant, all the prison cells were severely overcrowded, exceeding their design capacity at least twofold. The cells measured around eight square metres and contained between eight and twelve inmates. Until he was transferred to a solitary cell on 21 November 2003, he had to take turns to sleep. There was no proper ventilation and the toilet facilities were not partitioned off from the rest of the cell. The light was constantly on, the food was of poor quality, and the heating system was either lacking or out of order.
22. The Government submitted the following information concerning the applicant’s detention in the IZ-47/1. The applicant was held in this detention facility between 28 January 2000 and 3 October 2004, when he was transferred to penal facility IK-2.
23. In remand facility IZ-47/1 the applicant was held in cells 760, 780, 740, 376, 468, 456, 453, 64 and 126. Apart from cell no. 780, which measured some ten square metres, had one window and held up to seven inmates, including the applicant, the rest of the cells were identical. They all measured around eight square metres, had one window and contained up to seven inmates.
24. Between 31 January 2000 and 4 November 2001 the applicant was detained in cell no. 760. From 31 January to 17 June 2000 the cell contained a total of three inmates. The rest of the time there were seven inmates in the cell.
25. Between 4 November 2001 and 8 April 2002 the applicant was detained in cell no. 740. From 13 January 2001 to 1 April 2002 the cell contained a total of three inmates, whilst the rest of the time this number was up to seven.
26. From 9 to 26 April 2002 the applicant was held in cell no. 376. From 12 to 20 April 2002 there were three inmates in the cell in total and the rest of the time it contained seven inmates.
27. From 26 April to 10 September 2002 the applicant was held in cell no. 468. The cell contained a total of four inmates between 20 May and 15 July 2002 and seven inmates for the rest of the time.
28. The applicant was held in the same cell also between 12 September 2002 and 10 January 2003. Between 30 September and 29 December 2002 he was held in the cell with two other inmates, whilst the rest of the time the cell contained up to seven inmates.
29. Between 10 and 15 January 2003 the applicant was held in cell no. 456. On 11 and 12 January 2003 there were three inmates in the cell, whilst the rest of the time there were up to seven.
30. From 15 January to 4 April 2003 the applicant was again detained in cell no. 468. Between 15 February and 10 March 2003 there were three inmates in the cell. The rest of the time it held up to seven inmates.
31. The applicant was moved to cell no. 453 on 4 April 2003, until 30 May 2003. From 21 to 30 April 2003 there were three inmates in the cell, whilst the rest of the time there were up to seven.
32. The applicant was held in the same cell from 2 June to 21 July 2003. Between 12 June and 10 July 2003 the cell held three inmates and the rest of the time it held seven inmates.
33. The applicant was moved to cell no. 64 on 21 July 2003, until 21 November 2003. Between 28 September and 25 October 2003 there were three inmates in the cell. The rest of the time there were up to seven inmates in the cell.
34. The applicant was transferred to cell no. 126 on 21 November 2003, and thereafter was held in solitary confinement.
35. The Government admitted that the detention facility was overcrowded, but denied that there had been any problems or issues with any other conditions of the applicant’s detention such as ventilation, toilets, food arrangements and so on. In particular, the Government referred to various certificates issued by the prison administration confirming that the prison at issue was equipped with a proper ventilation system, had appropriate washing arrangements and that proper measures to control rats and insects had been in place.
36. The Government also referred to certificate no. 65/14-866 dated 14 March 2003, issued by the prison administration, which specifically admitted that there was a lack of precise information about the number of inmates during the applicant’s stay in IZ-47/1. It referred to records confirming the destruction of the relevant prison logs on 14 January 2003, 13 January and 20 December 2005 and 20 December 2006.
37. The applicant agreed with the Government concerning the surface area of the cells, but disputed the numbers of the inmates. He also specified that between January and November 2000 he was constantly being transferred from the Detention Centre to the remand prison, staying in both intermittently.
38. The applicant submitted that the conditions of his transportation to and from the court hearings had been appalling.
39. According to him, on the hearing days he was usually taken out of his cell at 4 a.m. and placed in a preliminary reception cell, which measured some eight square metres and usually contained 20 inmates. An hour later, the inmates were placed in a prison van, which was originally designed for sixteen or seventeen passengers but which in reality contained no fewer than thirty. Given the length of the journey and frequent traffic jams, each return trip took around four hours. On these days the inmates did not receive any food between 4 a.m. and 8 p.m.
40. The Government relied on prison certificate no. 65-1690 dated 19 March 2008 issued by the Regional Department of the Ministry of Justice, which confirmed that during his stay in IZ-47/1 the applicant had made a total of thirty-two trips. The trips took place on 17 September, 21, 23 and 25 October, 12 November and 4 and 5 December 2002, and 27 January, 20 February, 28 and 31 March, 5 and 7 May, 16, 17 and 18 June, 1 and 4 July, 22, 23, 25 and 26 September, 1, 6, 8, 13, 16, 20, 28 and 30 October, and 18 and 21 November 2003.
41. The Government submitted that the applicant had received a hot breakfast before leaving and a hot supper after his return to prison. In addition, he was allowed to take food with him to the hearings. The Government stated that a one-way trip lasted around thirty to forty minutes and the prison vans were never overcrowded. They did not rely on any original documentation to confirm these submissions.
42. According to the certificate issued by the prison administration no. 65-1630 dated 17 March 2008, the original documentation recording the number of inmates transported on each such occasion with the exact routes and durations of the respective trips could not be submitted because transportation was carried out by the Regional Department of the Ministry of the Interior.
43. The Government submitted a copy of the record from the Regional Department of the Ministry of the Interior dated 4 May 2005 and confirming the destruction of some logs concerning the period from January to the end of August 2000. According to the Government, these were the logs concerning the applicant’s trips.
44. The applicant agreed with the dates of the trips and their overall number. He maintained on his initial account of the events as regards the rest of the details.
45. On an unspecified date after his transfer to a penal establishment the applicant sued the Ministry of Finance for damages in connection with the allegedly appalling conditions of detention and transportation in prison. Among other things, he relied on Article 3 of the Convention and the Court’s case-law.
46. By a judgment of 23 July 2009 the Kalininskiy District Court (St Petersburg) rejected his claim in full as unsubstantiated. The court considered that the applicant had failed to submit sufficient evidence in support of his allegations. Given that the prison administration denied the applicant’s allegations, his claim was rejected as unsubstantiated.
47. The first-instance judgment was upheld on appeal by the St Petersburg City Court on 5 November 2009.
48. The applicant’s case received country-wide media coverage both before his arrest, pending the criminal investigation and court proceedings as well as after the trial.
49. On 15 January 1999 a local newspaper, Nevskoye Vremya published an article ‘A killer in the city with a syringe’ describing robberies and murders, involving a person yet uncaught posing as a doctor. The article reported the deaths of two elderly people and then stated:
“... According to the police, it would seem that both [deceased] persons became victims of a criminal posing as a medical officer. A series of such crimes began in St Petersburg about a year ago ...”
50. On 26 January 2000 a local newspaper, Peterburg Ekspress, reported that “a few days ago a maniac was captured in St Petersburg”. It also published a photofit picture of the wanted person with a description: “a doctor, whose photofit you can see here, killed nine old people”. The newspaper also published a map of the city on which the locations of the applicant’s activities were marked, and interviews with surviving victims.
51. On 5 April 2000 a national newspaper, Komsomolskaya Pravda, published an article headed ‘Doctor killed old women for smoked sausage’, describing episodes of the applicant’s alleged criminal activity and disguising his name.
52. It appears that during the summer of 2000 some reports were broadcast on various television channels reporting on the applicant’s criminal case.
53. On 5 March 2003 the Moskovskiy Komsomolets newspaper published an article headed ‘Did you call a butcher?’ and describing the charges against the applicant. The article gave an overview of the case and then quoted police comments on the applicant’s actions and personality:
“... police officer S. Z. says: ‘What repentance [by the applicant]? ... What are you talking about? He killed old ladies, stole their pasta and the same evening was eating this pasta with his family’.
... All the victims in this case have already been questioned, the evidence studied. But the verdict will not be delivered very soon – the judge has yet to check all the applicant’s arguments. So let us not run ahead of the train with suppositions about the possible verdict ...”
54. On 4 November 2003 the Peterburg Ekspress newspaper published an article “Murderous doctor in the dock” which, in its relevant parts, read as follows:
“... Two years ago, in our issue ... of 26 January 2000, we wrote about the arrest of the murderous doctor who paid visits to elderly people, injected them with soporifics, and when they fell asleep robbed them of their personal belongings. Overall, his personal score is over fifty attacks and seventeen murders. Maksim Petrov, accused of these cruel crimes, was apprehended by police officers of the Frunzenskiy District Department of the Interior in the winter of 2000, and only on 21 October the first hearing took place at the City Court in what is being called the doctor’s case.
... Police officers of the Frunzenskiy District Department of the Interior in charge of the investigation concluded that this was a case of a serial killer. At the same time, they learned that the criminal found his future victims by using fluorographic pictures stolen from a district polyclinic.
... ‘We had to find a potential victim of the doctor’, says A.K., the head of the department in charge of homicide investigations in the Frunzenskiy District Department of the Interior. [He then continued:] ‘We seized the registration books from the polyclinic and composed a carefully checked list of retired people, each of whom could be subject to an attack of the doctor. The first list contained 3,500 names, the next list 600 and, as a result, we ended up with seventy-two addresses which could be visited by the maniac.
... A.K., the head of the department in charge of investigations of homicides in the Frunzenskiy District Department of the Interior, hopes that the doctor-maniac gets a life sentence, because he is responsible for over sixteen murders and over fifty robbery episodes. ...”
55. An article published in Komsomolskaya Pravda (in St Petersburg) newspaper on 17 November 2003 and headed “How many [years in prison] will they give to Doctor Petrov?” gave the background of the applicant’s case and some details about the ongoing trial proceedings. It then stated:
“... our journalist managed to meet the police agents who had arrested Maksim Petrov. Now that the verdict is close, they agreed for the first time to tell us about the operation, which was later called ‘Medical Brother’. So the cast (with their offices during the operation): Yu. D., senior police agent of the Frunzenskiy District Department of the Ministry of the Interior, Yu. Sh., senior police agent of the [same department], V. T., head of [that] department and of the special operation itself ...
...’He is the scariest person I’ve ever seen during my time in the criminal police’ ̶ Yu. D. shared his thoughts [He then continued:]
‘We in our city have never had, or not at least since 1917 and the gang syndicate of Lyon’ka Panteleev, such a killer who has knowingly and in such cold blood killed so many people. Over ten killings proven! And how many others have there been? Not known! He is a dreadful maniac! Look at this: he has killed some of our parents for a dime. I only regret one thing – that when we arrested him we were not 100% certain that he was the killer. Had I known this for sure, I would not have taken him alive. A skunk like that deserves only death!’ ...”
56. On 20 November 2003 the Smena newspaper, in its issue no. 6, reported on the applicant’s case and trial, mentioning that during the trial the applicant denied the charges against him.
57. In October 2002 the applicant made a pleading before the trial court, mentioning the disclosure of investigation materials by the police officers before the delivery of the verdict in his criminal case. He also mentioned this issue in his appeal arguments. These arguments remained unanswered.
58. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate has no clothes of his own).
59. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide daytime and night-time illumination.
60. Rule 46 provided that prisoners were to be given three hot meals a day, in accordance with the norms laid down by the Government of Russia.
61. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after taking their shower.
62. Rule 143 provided that inmates could be visited by their lawyer, family members or other persons, with the written permission of an investigator or an investigative body. The number of visits was limited to two per month.
63. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme.
64. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.
65. The programme mentions detention centre IZ-47/1 in St Petersburg among those affected, with a number of detainees which seriously exceeded capacity (by as much as 152,4 %). The other remand prisons in and around St Petersburg, IZ-47/2 (the town of Tikhvin of the Leningrad Region), IZ47/3 (the town of Vyborg of the Leningrad Region), IZ-47/4 (St Petersburg), IZ-47/5 (St Petersburg) and IZ-47/6 (the town of Gorelovo of the Leningrad Region), are all mentioned as affected to various degrees by the same problem.
66. Article 49 of the Constitution of the Russian Federation provides that everyone accused of committing a crime shall be considered innocent until proven guilty according to the rules fixed by the federal law and confirmed by the sentence of a court which has come into legal force.
67. The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps signiﬁcantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...
48. Speciﬁc mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...
50. The CPT would add that it is particularly concerned when it ﬁnds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Largecapacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates ﬁtted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-76986
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TAKEVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Dobrina Tzvetanova Takeva, is a Bulgarian national who was born in 1948 and lives in Pleven. She was represented before the Court by Mr N. Rounevski, a lawyer practising in Sofia.
The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 December 1994 the applicant entered into an employment agreement with a private insurance company (“the defendant”) under which she was appointed to the position of chief accountant of its branch office in the town of Pleven.
On 18 February 1998 the executive director of the company issued an order for terminating the applicant’s employment agreement on the grounds that she did not meet the requirements for the position. The order was not immediately served on the applicant.
Despite the fact that the applicant was on sick leave between 19 February and 29 March 1998, the order for terminating her employment agreement was served on her on 11 March 1998 and, thus, her employment was terminated.
On 14 July 1998 the applicant initiated an action against the defendant for unlawful dismissal and argued, inter alia, that she satisfied the requirements for the position and that her employment agreement could not have been terminated while she was on sick leave. She sought both reinstatement to her previous position and damages.
The Pleven District Court conducted four hearings between 14 October 1998 and 7 June 1999 during which time it obtained an expert’s opinion in respect of the damages suffered by the applicant. At the hearings of 14 October 1998 and 7 June 1999 the defendant objected to the court’s jurisdiction in the case. The first objection was rejected, but the second was upheld after the defendant presented evidence that its Pleven branch office had in the meantime been closed on 4 November 1998. The Pleven District Court found that the court at the seat of the defendant had jurisdiction following the said closure of the branch office and transferred the case to the Sofia District Court.
In a decision of 29 July 1999 the Sofia District Court, in camera, found that it did not have jurisdiction in the case and forwarded the case file to the Sofia City Court to make a final determination on the matter.
In a decision of 14 September 1999 the Sofia City Court, in camera, ruled that the Sofia District Court had jurisdiction in the case and transferred the case file back to it. The parties to the proceedings were informed of the decision on 2 December 1999. The case was then transferred to the Sofia District Court which received it on 14 January 2000.
The Sofia District Court conducted two hearings on 22 March and 31 May 2000, the first of which was postponed due to the improper summoning of the applicant.
In a judgment of 30 June 2000 the Sofia District Court found partially in favour of the applicant and declared her dismissal unlawful, but dismissed her claims for reinstatement and damages. The defendant and the applicant appealed against the judgment on 7 and 28 August 2000, respectively.
On 4 September 2000 the defendant was instructed to deposit the corresponding court fees for its appeal, which it did on 19 September 2000. Its appeal and that of the applicant were then registered with the Sofia City Court on 23 October 2000.
The first hearing of the parties’ appeals was scheduled for 30 April 2001, but the Sofia City Court postponed it for unspecified reasons to 2 July 2001. At the hearing of that date, the court instructed the applicant to present the original of her work booklet so as to verify the accuracy of the certified photocopies presented to the court in respect of her subsequent employment and adjourned the hearing. The next hearing was conducted on 25 February 2002, when the case was declared ready for decision.
In a judgment of 19 March 2002 the Sofia City Court quashed part of the first-instance court judgment in the case and instead reinstated the applicant to her former position and awarded her damages. The court’s finding in favour of the applicant was based on the fact that she had been dismissed while she was on sick leave, which negated the need to examine in substance the grounds of her dismissal and whether she in fact met the requirements for the position. Neither party appealed against the judgment, so it entered into force on 10 May 2002, at the latest.


ITEMID: 001-77694
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF CHRAIDI v. GERMANY
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 5-3;Not necessary to examine Art. 6-2;Remainder inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant, Mr Yasser Chraidi, was born in 1959 in Lebanon. At the time of lodging his application, he was detained in Berlin. He is currently living in Lebanon.
6. On 1 August 1984 the Berlin Tiergarten District Court issued an arrest warrant in respect of the applicant on the ground that he was strongly suspected of having murdered E.
7. On 19 July 1990 the Berlin Tiergarten District Court issued a further arrest warrant in respect of the applicant and five other suspects, born in Lebanon, Libya or Morocco. The court accused the applicant of having prepared, with others, a bomb attack at the “La Belle” discotheque in Berlin on 5 April 1986 in order to kill as many members of the American armed forces as possible. During this terrorist attack, three people had been killed and 104 seriously injured.
8. On 1 September 1992 the applicant was arrested by the police in Lebanon and was subsequently taken into detention with a view to extradition.
9. On 21 June 1994 a Lebanese court acquitted the applicant of E.’s murder but convicted him of forgery and sentenced him to one year and six months’ imprisonment.
10. On 24 May 1996 the applicant was extradited to Germany and subsequently held in detention on remand on account of the arrest warrant issued in 1990.
11. On 25 November 1996 the Berlin Court of Appeal ordered the applicant’s continued detention on remand. It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted, among other things, from the confession of one of the other suspects. The danger of his absconding still persisted because the applicant had been extradited to Germany only in May 1996 and had neither a fixed dwelling nor social ties in Germany which would prevent him from absconding if released. The court moreover referred to the lifelong prison sentence the applicant faced and underlined that more lenient preventive measures would not be suitable. Lastly, there had been no breach of the obligation to proceed speedily (Beschleunigungsgebot).
12. On 30 January 1997 the public prosecutor filed the bill of indictment. On 5 September 1997 the Berlin Regional Court opened the main proceedings against the applicant and four other accused. Between 1997 and 2000 the Berlin Court of Appeal repeatedly ordered the applicant’s continued detention on remand.
13. On 13 January 2000 the Berlin Regional Court rejected a request by the applicant for release. It held that there was still a danger of his absconding. Furthermore, the reasonable suspicion that the applicant had committed the offences with which he had been charged persisted. The applicant’s continued detention was also proportionate having regard to the serious nature of those offences, the prospective sentence, the importance of the case and the particular public interest in the prosecution of these offences. Furthermore, there had been no breach of the obligation to proceed speedily.
14. On 1 March 2000 the Berlin Court of Appeal upheld that decision. Concerning the suspicions as regards the applicant, the court pointed out that it was bound by the assessment of the Regional Court. Furthermore, the danger of the applicant’s absconding persisted in view of the lifelong prison sentence he faced. The objective of his detention on remand could accordingly not be accomplished by alternative, less radical, preventive measures. Although the applicant had been detained since as far back as 8 January 1994, his further detention remained proportionate having regard to the importance of the case, the character and seriousness of the offences and the particular public interest in the prosecution of these offences. Referring to the principle of proportionality, the court underlined that a detainee’s right to liberty could outweigh the public interest in the prosecution as time passed, if there was, for instance, an imminent risk of irreparable damage to his health. In the present case, however, nothing suggested that the applicant’s life or health were at risk. Moreover, given that the Regional Court had continuously held two hearings per week since November 1997, the length of the proceedings could not be considered disproportionate.
15. On 24 May 2000 the Federal Constitutional Court refused to admit a complaint by the applicant, without giving any reasons. Its decision was served on the applicant’s lawyer on 30 May 2000.
16. On 13 November 2001 the Berlin Regional Court convicted the applicant on three counts of aiding and abetting murder, on 104 counts of aiding and abetting attempted murder, and of aiding and abetting causing an explosion (Herbeiführung einer Sprengstoffexplosion). The court alluded to the historical background of the case, in particular to the tensions between the United States and Libya which had arisen following terrorist attacks in 1985. In January 1986 the United States government had imposed a trade embargo on Libya and had ordered the freezing of all Libyan State assets in United States banks. These measures had led to military intervention and to the planning by Libyan nationals of terrorist attacks on United States facilities in Germany. The court further pointed out that the applicant’s crimes were punishable by imprisonment for up to fifteen years and sentenced him to fourteen years’ imprisonment. When determining the sentence, the court took into account, among other things, the fact that the applicant’s detention on remand and the proceedings had lasted an unusually long time. It further determined that since 8 January 1994 the applicant had been detained in Lebanon with a view to extradition in connection with the present case. This period of detention was to be deducted from his prison sentence at a ratio of 1:3 until 30 April 1994 and at a ratio of 1:2 from 1 May 1994. The court moreover ordered the applicant’s continued detention. The judgment, which ran to 380 pages, was served on the applicant’s lawyer on 10 January 2003.
17. The Berlin Regional Court delivered its judgment after holding 281 hearings with an average of two hearings per week and having heard 169 witnesses. The hearings, which lasted on average five hours each, were regularly attended by the five accused, their 15 lawyers, 106 joint plaintiffs, their 29 lawyers and three interpreters.
18. On 24 June 2004 the Federal Court of Justice dismissed appeals on points of law by the applicant and the public prosecutor.
19. On 28 April 2005 the applicant was released.
20. Article 117 of the Code of Criminal Procedure provides, inter alia:
“As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Article 116.”
21. Article 230 of the Code of Criminal Procedure provides, inter alia:
“No trial shall be held in respect of a person who is absent.”
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-68832
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BENAMAR v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: The applicants are four siblings, Latifa, Hanan, Abdelouahab and Abdelhak Benamar, and their mother Mrs Rachida Boudhan. The latter was born in 1961 and the other applicants in 1979, 1981, 1983 and 1985, respectively. All applicants are Moroccan nationals and live in Oosterhout. They were represented before the Court by Mr J.M.M. Verstrepen, a lawyer practising in Oosterhout.
On 12 September 1978, Mrs Boudhan (the fifth applicant) married Mr Benamar in Morocco, where both of them were living and continued to live after their marriage. The first four applicants were born out of this marriage.
On 3 August 1988, Mrs Boudhan's marriage with Mr Benamar was dissolved in Morocco. Mrs Boudhan waived her rights and obligations visà-vis her husband and the four children. The court that pronounced the divorce entrusted the care and custody of the four children to Mr Benamar.
On 4 June 1991, Mrs Boudhan remarried in the Netherlands. Her new husband, Mr Airaki, is a Moroccan national living in the Netherlands and holder of a permanent residence permit. On the basis of this marriage, Mrs Boudhan was granted a Netherlands residence permit.
On 22 June 1997, Mr Benamar died in Morocco. On 12 July 1997, after a Moroccan court had entrusted her with the care and custody of the four children, Mrs Boudhan travelled to Morocco and, on 30 August 1997, returned to the Netherlands with the four children.
On 13 September 1997, the four children applied for a Netherlands residence permit for the purpose of stay with their mother.
In four separate decisions taken on 21 November 1997, the head of police (korpschef) of the Middle and West Brabant region rejected these requests. The head of police noted at the outset that the four children did not hold the required provisional residence visa (machtiging tot voorlopig verblijf) issued by the Netherlands authorities in Morocco. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. The head of police further held that a number of requirements for a residence permit for the purpose of (extended) family reunion were not met. On this point, the head of police concluded that it had not been established that – between June 1991 and 30 August 1997 – there had been close family ties (gezinsband) between the children and Mrs Boudhan, since the children had been living in another family unit, i.e. that of their father, and Mrs Boudhan had been unable to demonstrate that, during that period, she had financially contributed to the children's care and upbringing. Furthermore, Mrs Boudhan did not comply with the requirement of having adequate housing. The head of police further considered that the children's presence in the Netherlands did not serve an essential national interest, that there were no grounds for granting their request for compelling reasons of a humanitarian nature, and that no obligation for the Netherlands authorities to allow family reunion on its territory could be derived from Article 8 of the Convention.
On 24 December 1997, the four children filed an administrative appeal with the Deputy Minister of Justice (Staatssecretaris of Justitie). On 9 February 1998, after the Deputy Minister had decided that they were not allowed to remain in the Netherlands pending the determination of their appeal, the children requested the President of the Regional Court (arrondissementsrechtbank) of The Hague to issue an interim measure to the effect that they would not be expelled pending the proceedings on their appeal.
On 7 December 1999, the President of the Regional Court granted the children's request for an interim measure. Having noted that twenty-two months had elapsed since the administrative appeal had been filed and that it was still pending, the President considered that the Deputy Minister apparently did not attach great importance to an expulsion at short notice whereas it was plausible that the children had a great interest in being allowed to remain in the Netherlands pending the determination of their appeal.
On 29 May 2001, the first applicant and Mrs Boudhan – who were assisted by their lawyer – were heard before an official commission (ambtelijke commissie) on the appeal filed against the decisions of 21 November 1997. In the course of this hearing, Mrs Boudhan stated inter alia that, after she had moved to the Netherlands, she had remained in contact with her four children in Morocco, both through annual visits and through telephone conversations. Her ex-husband had been an alcoholic and had died as a consequence thereof. He and the children had lived in the house of a sister of her ex-husband who had also lived there. Her oldest daughter had cooked and cared for the other three children. Her parents, who also lived in the Netherlands, owned a house in Morocco and she had stayed in that house during her visits to Morocco. Six of her seven siblings were living in the Netherlands; one sister still lived in Morocco but not near the place where her ex-husband had been living. She had also contributed financially and materially to the children's care and upbringing, by sending them money and clothes via friends and relatives.
On 1 November 2001, the Deputy Minister rejected the administrative appeal brought by the four children. The Deputy Minister found that the criteria for family reunion had not been met given that the factual close family ties (feitelijke gezinsband) between the children and Mrs Boudhan had to be regarded as having been severed, at least since 1991 when Mrs Boudhan – leaving the four children with her ex-husband in Morocco – had moved to the Netherlands where she had founded a new family unit with Mr Airaki of which the four children did not form a part, whereas this situation had been intended as being a permanent arrangement. The Deputy Minister further considered that it had not been established that close family ties had been maintained by Mrs Boudhan after 1991, either through financial support or parental decisions. The Deputy Minister also found that it had not been established that it had been impossible for Mrs Boudhan to have custody of the children transferred to her sooner and that, for this reason, it had not been possible to seek reunion earlier. As to the children's argument that, since their arrival in the Netherlands, they had formed a part of Mrs Boudhan's family unit there, the Deputy Minister held that admission for family reunion was only possible if the actual close family ties between a parent and a child had never been severed. The Deputy Minister therefore concluded that the four children were not eligible for a residence permit for family reunion under the domestic immigration rules.
As to the question whether a refusal to admit the children to the Netherlands would entail disproportionate hardship, the Deputy Minister noted that the first applicant was born and raised in Morocco where she had lived for eighteen years before coming to the Netherlands, and considered that she could be expected to fend for herself independently in Morocco. The Minister further held that it had not appeared that she had integrated into Netherlands society and become alienated from Moroccan society to such an extent that it could not be asked of her to return to Morocco, or that prior to her arrival in the Netherlands she had encountered such problems that it would be unreasonable to expect her to return to Morocco. On this point, the Deputy Minister noted that, although her father had died, it had appeared during the hearing before the official commission that the first applicant – without any help from her father – already regularly had had to assume the care for herself and her siblings, and found that it had not been established that she would not have, according to local standards, acceptable future prospects in Morocco. As regards the other children, the Deputy Minister held that they could return to Morocco together with their oldest sister who could – like she had already done prior to their arrival in the Netherlands and in so far as necessary – provide them with (a part of) the necessary care. The Deputy Minister further considered that her brothers Hanan and Abdelouahab – given their age – would be less and less dependent on their oldest sister as regards their actual daily care and would to an increasing degree be able to fend for themselves independently. In this context, the Deputy Minister further pointed out that financial support for the children's living expenses could be provided by transferring money from the Netherlands. Although the children's situation in Morocco would be less favourable than in the Netherlands, the Deputy Minister did not find this a reason to deviate from the applicable immigration rules.
In so far as the children relied on Article 8 of the Convention, the Deputy Minister held, as regards the first applicant, that she had already come of age when she applied for a residence permit. As her relationship with Mrs Boudhan was one between adult relatives, and having found no indication that this relationship comprised more than the normal emotional ties that exist between parents and adult children, the Deputy Minister held that their relationship did not constitute family life within the meaning of Article 8. On this point, the Deputy Minister did not find it established that the care provided by Mrs Boudhan to the first applicant had been of such a nature that it could not be regarded as the normal care with which parents should provide their children. The Deputy Minister further considered it of importance that their separation had resulted from Mrs Boudhan's free choice to settle in the Netherlands, and that another indication for the absence of a special relationship of dependency between them was formed by the fact that Mrs Boudhan had been living in the Netherlands since 1991 whereas it was not until 1997 that she had made demonstrable efforts to be reunited with the first applicant in the Netherlands. As regards the other three children, the Deputy Minister accepted that there was family life within the meaning of Article 8 between them and Mrs Boudhan, but that the interests of the Netherlands authorities in maintaining a restrictive immigration policy outweighed the children's interests in exercising their family life with Mrs Boudhan in the Netherlands. On this point, the Deputy Minister considered that a refusal to admit the children to the Netherlands did not prevent them from exercising their family life with Mrs Boudhan in the way they had before they came to the Netherlands and that Mrs Boudhan had made a conscious decision at the time to leave Morocco and to leave her children behind. Consequently, their separation had not been caused by any public authority's involvement. The Deputy Minister held that in a situation like that of the applicants, where family life had been voluntarily reduced to the present level, it could not be required from the Netherlands authorities to make provisions allowing to deepen and intensify family life. The Deputy Minister further considered that no objective obstacles had appeared to the family life at issue being exercised outside the Netherlands.
On 23 November 2001, the four children filed an appeal with the Regional Court of The Hague.
In its ruling of 1 July 2004, following a hearing held on 1 June 2004, the Regional Court of The Hague rejected the children's appeal. It did point out that the Deputy Minister had incorrectly found that there was no family life within the meaning of Article 8 of the Convention between Mrs Boudhan and the first applicant, but did not conclude that this constituted a ground for declaring the appeal well-founded in view of the reasons stated by the Deputy Minister for holding that Article 8 had not been violated. No further appeal lay against this decision.
Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the 1994 Aliens Act Implementation Guidelines (Vreemdelingencirculaire). On 1 April 2001, the 1965 Aliens Act was replaced by the 2000 Aliens Act. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the 2000 Aliens Act.
As a rule, anyone wishing to apply for a residence permit in the Netherlands must first apply from his or her country of origin to the Netherlands Minister of Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf). Only once such a visa has been issued abroad may a residence permit for the Netherlands be granted. An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit.
The Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds.
The admission policy for family reunion purposes was laid down in the Aliens Act Implementation Guidelines. The phrase “actually belonging to the family unit” (“feitelijk behoren tot het gezin”) used in Netherlands law only partly overlaps with the term “family life” in Article 8 of the Convention. The former is understood to mean, for instance, that the close family ties (gezinsband) between the child and its parents whom it wishes to join in the Netherlands already existed in another country and have been maintained. For the rest, the question of whether the close family ties should be deemed to have been severed is answered on the basis of the facts and circumstances of each specific case. Factors taken into consideration include the length of time during which parent and child have been separated and the reasons for the separation, the way in which the relationship between parent and child has been developed during the separation, the parent's involvement in the child's care and upbringing, custody arrangements, the amount and frequency of the parent's financial contributions to the child's care and upbringing, the parent's intention to send for the child as soon as possible and his/her efforts to do so, and the length of time that the child has lived in a family other than with the parent.
The burden of proving that the close family ties between parent and child have not been severed rests with the parent residing in the Netherlands. The longer the parent and child have been separated, the heavier the burden of proof on the person in the Netherlands becomes. It is then incumbent on the parent to present sound reasons as to why he or she did not seek to bring the child to the Netherlands sooner.
it residence in the Netherlands.