ITEMID: 001-58832
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF BEYELER v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (estoppel);Violation of P1-1;Not necessary to examine Art. 14;No separate issue under Art. 18;Just satisfaction reserved
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 8. In an order of 8 January 1954 the Ministry of National Education (Ministero per la pubblica istruzione, which at the time had responsibility for works of cultural or artistic interest) declared the painting Portrait of a Young Peasant, painted in Saint-Rémy-de-Provence (France) in 1889 by the painter Vincent van Gogh, to be a work of historical and artistic interest within the meaning of section 3 of Law no. 1089 of 1 June 1939. On 20 January 1954 the order was served on the owner of the painting, Mr Verusio, an art collector living in Rome.
9. Early in 1977 the applicant decided to buy the painting through an intermediary, Mr Pierangeli, a Rome antiques dealer.
10. On 28 July 1977 Mr Verusio therefore sold the work to Mr Pierangeli for the agreed price of 600,000,000 Italian lire (ITL).
11. On 29 July 1977 the applicant gave instructions for that amount, plus ITL 5,000,000 as remuneration at the customary rate, to be transferred to Mr Pierangeli in exchange for the document confirming the purchase. Mr Pierangeli's account was credited with the amount on 12 August 1977.
12. Meanwhile, Mr Verusio had on 1 August 1977 declared the sale of the painting to the Ministry of Cultural Heritage (“the Ministry”), as required by section 30 of the aforementioned Law no. 1089 of 1939. The declaration had been signed only by Mr Verusio, but mentioned Mr Pierangeli's name as the other party to the contract. There was no mention of the end buyer (the applicant) or the place of delivery.
13. The two-month time-limit laid down by section 32 of Law no. 1089 of 1939 expired without the Ministry having exercised its right of pre-emption.
14. On 21 November 1977 Mr Pierangeli requested a licence from the Palermo Export Office to send the painting to London. The painting was placed in the temporary custody of the Sicilian Regional Art Gallery pending a decision from the Ministry as to whether it wished to exercise its right of pre-emption which arose under section 39 of Law no. 1089 of 1939 on an exportation.
15. In a note of 3 December 1977 the Ministry stated that it did not intend to purchase the painting as it was not of sufficient interest to justify the State's acquiring it. However, on 5 January 1978 the authorities refused Mr Pierangeli's application for an export licence on the ground that it would be seriously detrimental to the national cultural heritage for the painting to be exported.
16. On 22 March and 8 April 1978 the Ministry authorised the painting's return to Mr Pierangeli.
17. On 1 December 1983 Mr Pierangeli made a declaration to the Ministry stating that he had purchased the painting on behalf of the applicant. On 2 December 1983 the applicant and Mr Pierangeli informed the Ministry that the Peggy Guggenheim Collection in Venice wished to buy the painting for 2,100,000 United States dollars (USD) and reiterated that Mr Pierangeli had purchased the painting in 1977 on behalf of the applicant. At the same time they invited the Ministry to indicate whether it intended to exercise its right of pre-emption under Law no. 1089 of 1939.
18. In a note of 9 January 1984 the Ministry informed the parties that it was unable to exercise its right of pre-emption validly since there had been no contract and a mere unilateral declaration of an intention to sell was insufficient. In its note, which was sent to both Mr Pierangeli and the applicant, the Ministry did not describe the applicant as being the owner or refer to the declaration made on 1 December 1983.
19. On 28 February 1984 Mr Petretti, acting for and on behalf of the applicant and Mr Pierangeli, applied to the Fine Arts Department in Rome and to the Ministry for a licence to move the painting to Venice so that the Peggy Guggenheim Collection could inspect it with a view to its purchase. On 7 March 1984 the Ministry refused permission for the painting to be moved on the ground that there was a risk that it would suffer irreparable damage.
20. In early 1985 Mr Pierangeli, in his capacity as “holder of the painting for and on behalf of Mr Ernst Beyeler”, in turn requested permission to transfer the painting to Venice as the Peggy Guggenheim Collection had asked to inspect it. On 30 January 1985 the Minister of Cultural Heritage served on Mr Petretti (the applicant's representative), certain departments of the Ministry and State Counsel's Office a request that it be informed whether or not the owner of the painting had decided to move it to Venice. On 21 February 1985 Mr Petretti, acting for and on behalf of the applicant alone, confirmed that his client agreed to the painting's being moved. At that juncture, following an informal request from the Ministry, he also produced a copy of the declaration of 1 December 1983. On 26 February 1985 the applicant wrote to the Ministry in connection with the technical arrangements for the painting's transfer. On 9 April 1985 the Ministry gave permission for the painting to be moved to Venice.
21. In a note to Mr Pierangeli of 4 October 1985 the Ministry referred to the communication of 2 December 1983 and requested the documents showing that Mr Pierangeli had bought the painting on behalf of the applicant.
22. On 23 April 1986 the Minister ordered that the painting be sent to Rome for temporary custody in the Modern and Contemporary Art Gallery. The order, in which express reference was made to the communication of 2 December 1983, was issued after the relevant authorities had expressed concern about the conditions in which the painting was being kept, particularly in the light of the uncertainty as to who was the real owner and the failure by the Peggy Guggenheim Collection in Venice to comply with its undertakings.
23. The applicant applied for the first time to the Lazio Regional Administrative Court (“the RAC”) for judicial review of the order of 23 April 1986.
24. On 30 April 1987 Mr Peter, who had replaced Mr Petretti as the applicant's lawyer, sent a letter to the director of the Fine Arts Department in Rome assuring him that the applicant had no intention whatsoever of infringing Italian law and referring, among other things, to the authorities' fears that the painting might be illegally exported.
25. On 12 June 1987 Mr Peter asked the Modern and Contemporary Art Gallery in Rome for authorisation to check the painting's condition at the gallery on his client's behalf (the lawyer referred to his client as the “owner of the painting”). On 19 October 1987, with the agreement of State Counsel's Office, a meeting was therefore held at the Modern and Contemporary Art Gallery in Rome. It was attended by, among others, the applicant, his new lawyer, the director of the gallery and an expert from the Peggy Guggenheim Collection (as recorded in the minutes). The director said that uncertainty had arisen (as she explained to the applicant's lawyer in a letter of 20 November 1987) as a result of the above-mentioned application to the RAC. In a letter of 23 December 1987 the applicant informed the director that he intended to discontinue those proceedings on account of, among other things, the fact that in the meantime the director of the gallery had allowed him, as owner of the painting, access to it at his simple request. A copy of that letter was also sent to the Fine Arts Department in Rome.
26. In January 1988 the Ministry sought clarification from Mr Peter about the applicant's alleged ownership of the painting. The applicant replied by sending a copy of the communications of 1 and 2 December 1983. He also stated that there had been no subsequent transfer of title between Mr Pierangeli and himself as he had acquired ownership of the painting directly.
27. It is apparent from two letters sent by the applicant's lawyer to the relevant Director-General of the Ministry on 5 and 26 February 1988, the contents of which have not been contested by the Government, that the Ministry had informed the applicant alone on at least two occasions (one of which was during a meeting with one of Mr Beyeler's lawyers at the Director-General's office on 28 January 1988) that the Italian State was interested in purchasing the painting, but stressed that it had a limited budget for that purpose.
28. A letter of 22 February 1988 sent by Mr Peter to the Director-General of the Ministry shows that on 19 February the latter had telephoned Mr Peter asking for the applicant's permission, as owner of the painting, to exhibit it in the Modern and Contemporary Art Gallery in Rome. The contents of that telephone conversation and of the letter referring to it have not been contested by the Government, although the Court has not been provided with a full transcript of the conversation.
29. In a letter of 26 February 1988 the applicant told the Ministry, referring to their earlier conversations on the subject, that he was willing to sell the painting to the Italian State for USD 11,000,000 and stated that it was a much lower price than that being proposed in negotiations with individuals interested in buying the painting. On 14 April 1988 the applicant drew the Ministry's attention to the fact that it had not responded to his offer within the time-limit he had indicated in his letter of 26 February.
30. On 2 May 1988 the applicant sold the painting to the Peggy Guggenheim Collection in Venice for USD 8,500,000.
31. The following day the parties served notice of the sale agreement on the Ministry, as required by section 30 of Law no. 1089 of 1939 and Article 57 of Royal Decree no. 363 of 30 January 1913.
32. In a note of 1 July 1988 the Ministry informed the parties that it could not ascribe to the declaration the effects provided for under the aforementioned provisions since the applicant did not have valid title to the painting. In particular, the Ministry considered that the declaration of the sale in 1977 by Mr Verusio to Mr Pierangeli and the declaration of 2 December 1983 conflicted with the purpose of section 30 of Law no. 1089 of 1939 and did not satisfy the requirements of Royal Decree no. 363 of 1913.
33. On 5 July 1988 the applicant asked the Ministry to return the painting, which was still in the custody of the Modern and Contemporary Art Gallery in Rome. The request was made pursuant to Article 37 of Royal Decree no. 363 of 1913, which provides, inter alia, that a work of art kept in accordance with the provisions of the decree may be returned to the owner if he can guarantee that it will be kept in good condition. The Ministry did not reply, however.
34. On 4 August 1988 Mr Peter replied to the note of 1 July, pointing out, among other things, that from as early as 1984 the Italian State had treated the applicant as the lawful owner of the painting, in particular by giving him permission to move the painting from Rome to Venice and by intimating that it wished to buy it from him.
35. On 16 September 1988, in response to an informal request from the Italian authorities, the applicant sent them the bank statements showing that Mr Pierangeli had purchased the painting on the applicant's behalf.
36. In an order of 24 November 1988 the Ministry exercised its right of pre-emption in respect of the 1977 sale. It contended that the notice served on 28 July 1977 was invalid as the communications of 3 August 1977 and 2 December 1983 did not contain the information required for the sale to be valid under Article 57 of Royal Decree no. 363 of 1913. The Ministry considered that on those dates it had not been in a position to establish the true identity of the contracting parties as the applicant had not signed the declaration giving notice of the contract and had thus prevented it from deciding in the light of all the facts whether to exercise its right of pre-emption. In addition, it said that the public interest in acquiring the painting was justified by the dearth of works by Vincent van Gogh in Italian museums and the need to ensure compliance with the statute that had been infringed. It observed, further, that the fact that the real purchaser of the painting, Mr Beyeler, was of foreign nationality took on particular importance for the purpose of protecting the painting.
Accordingly, the Ministry concluded
(a) that the documents relating to payment for the painting made by Mr Beyeler to Mr Verusio, through Mr Pierangeli, proved that the painting had been sold directly by Mr Verusio to Mr Beyeler;
(b) that, under section 61 of Law no. 1089 of 1939, the right of pre-emption provided for in sections 31 and 32 subsisted;
(c) that it should exercise its right of pre-emption; and
(d) that payment of the price stipulated in the 1977 agreement, namely ITL 600,000,000, should be made to the title-holder.
37. The order was served on Mr Verusio and the applicant on 30 November and 22 December 1988 respectively.
38. Meanwhile, the applicant and the Solomon Guggenheim Corporation had on 18, 19 and 20, 29 October 1988 respectively sought an order from the RAC annulling the note of 1 July 1988. The applicant maintained in particular that the Ministry had acted ultra vires, that the relevant provisions of Law no. 1089 of 1939 had been infringed and that in this case the Ministry had made an incorrect assessment of what was in the public interest. The applicant also submitted that section 61 of that statute was unconstitutional.
39. On 16 and 17 January 1989 the applicant lodged a further application, challenging the failure to reply to his request of 5 July 1988 for the painting to be returned.
40. On 30 January 1989 the applicant applied to the RAC to have the ministerial order of 24 November 1988 set aside. He complained, inter alia, that the impugned decision had been made ultra vires, that the reasoning was insufficient and self-contradictory, that the inquiry conducted by the Ministry had been inadequate, that there had been a breach of the relevant provisions of Law no. 1089 of 1939 and Articles 1705 and 1706 of the Italian Civil Code concerning agency and that the decision had not been made in the public interest as it was incomprehensible that a public interest should exist in 1988 when none had existed in 1977. The applicant argued that he had in any event now acquired title by adverse possession. He also complained that the impugned order had been made because he was a foreign national. He alleged, too, that there had been a violation of Article 1224 of the Italian Civil Code, which concerns damages arising out of pecuniary obligations, in that the price paid had not been revised.
41. Lastly, the applicant asked the RAC to refer to the Constitutional Court the question whether the relevant provisions of Law no. 1089 of 1939 were consistent with Articles 3, 24, 42 and 97 of the Italian Constitution.
42. The RAC ordered the joinder of the various applications before dismissing them all in a judgment of 16 November 1989, which was served on the applicant on 26 January 1990.
43. The court held that the declaration made on 3 August 1977 had not contained all the essential information required by Article 57 of Royal Decree no. 363 of 1913 and accordingly had to be regarded as “null and void”. It had not been signed by the real buyer and the place of delivery in Italy had not been indicated. In addition, the RAC held that the communications of 1 and 2 December 1983 could not have started time running for the purposes of the two-month limitation period as they had not been made by the seller and did not satisfy the requirements of Article 57 of the royal decree. The uncertainty as to who the real owner of the painting was had consequently prevented the two-month limitation period from starting to run, bearing in mind, too, that the authorities had had to make inquiries to establish who the owner was and that it was for the person declaring the sale to prove ownership. The RAC considered that the parties had had a duty to declare the sale and that their failure to do so meant that the two-month time-limit was no longer applicable. The authorities' right of pre-emption, which was no longer subject to a time-limit, had thus become “permanent”.
44. The RAC also found that the relevant authority had given valid reasons for finding that there was a legitimate public interest in the acquisition of the work (in particular, the fact that there were no major works by Vincent van Gogh in the State's collections and the need to protect the public interest from unfair conduct by the parties). In addition, it considered that the fact that the State had twice declined to exercise its right of pre-emption in 1977 was irrelevant as what was in the public interest had to be assessed in the light of the current position and requirements. In that regard it observed that not all the information needed for the purposes of identifying the owner of the painting had been made available to the Ministry, which had thus not been in a position until September 1988 to decide in the light of all the facts whether to exercise its right of pre-emption.
45. The RAC further found that, although the applicant's nationality had been one of the factors the Ministry had taken into account when deciding whether to exercise its right of pre-emption, it had not been the main factor.
46. As regards the applicant's claim for compensation for the failure to revise the value of the painting, the RAC held that section 31 of Law no. 1089 of 1939 conferred no discretion on the authorities since it provided, inter alia, that they had to pay the owner of the work only the agreed price stipulated in the deed of transfer, even in the event of pre-emption under section 61 (which refers to section 31). The RAC found, however, that the applicant could have asked for the value of the painting to be revised by bringing an action in damages in the ordinary civil courts.
47. As to the applications concerning the failure to reply to the applicant's request of 5 July 1988, the RAC considered that they were no longer relevant in view of the pre-emption order made on 24 November 1988.
48. Lastly, the RAC declared the constitutional issues raised by the applicant manifestly ill-founded as in the instant case the exceptional nature of the work and the improper conduct of the parties had justified extending the right of pre-emption indefinitely, which had the effect of restricting the property right.
49. The applicant lodged an appeal with the Consiglio di Stato. Among other things, he argued that the administrative courts had no jurisdiction in the instant case as the authorities had exercised powers which they did not possess and had failed to exercise properly those they did possess.
50. In a judgment of 19 October 1990 the Consiglio di Stato dismissed the appeal and upheld the judgment of the RAC in its entirety. It held that the instant case related to a defective declaration, not a failure to make a declaration, and that it was within the jurisdiction of the administrative courts because it concerned the exercise of existing powers. It went on to confirm that since the 1977 declaration did not contain all the essential information required by Royal Decree no. 363 of 1913 – notably the identity of all the contracting parties – the authorities were entitled to exercise their right of pre-emption under section 61 of Law no. 1089 of 1939 at any time, that right being subject to a limitation period only if a fresh declaration were made in accordance with the law. The Consiglio di Stato also held that the applicant could not have acquired the painting definitively by adverse possession.
51. The Consiglio di Stato considered that the authorities had not erred in considering the applicant to be the person on whom they should serve the pre-emption order and that in the present case the right of pre-emption of the authorities was different from the one existing under the general law. It had amounted to an actual expropriation measure, the transfer of the work being merely the condition allowing the authorities to expropriate it lawfully. The Consiglio di Stato held as follows:
“Therefore, even acknowledging that, as the appellants maintain, Mr Pierangeli had purchased the painting from Mr Verusio as Mr Beyeler's indirect agent, the fact remains that it is the latter's position which is affected in the final analysis by the agreement signed.
...
The administrative authorities thus committed no error of fact as regards the identification of the real purchaser on whom the order announcing their intention of exercising their right of pre-emption had to be served, as well as on Mr Verusio...
Further, the fact that the right of pre-emption provided for in section 30 of Law no. 1089 of 1939 has to be exercised against the real owner, and in any event against the end purchaser in a line of transactions complicated by the intervention of an agent, is also closely linked to the special nature of pre-emption...
Pre-emption, as provided for in sections 31 et seq. of Law no. 1089 ..., does not operate in the same way as the civil-law transaction of the same name ..., so that the mechanism by which the right of pre-emption is actually exercised must therefore be considered as belonging to the more general category of measures of dispossession (in respect of which the deed of transfer is merely a pre-condition for the exercise of the right of pre-emption). The validity of the transfer is not therefore a decisive factor, given that the exercise of the right of pre-emption does not have the effect of substituting the authorities for the vendor in negotiations between individuals, but rather the – opposite – effect of annulling the sale and constituting an acquisition...
... it is ... rather an actual act of expropriation, which can concern only the real owner of the property, this being the only person against whom the act of dispossession can be validly exercised...”
“Anche, quindi, a voler ritenere, come pretendono gli appellanti, che il Pierangeli abbia acquistato il dipinto dal Verusio quale mandatario senza rappresentanza del Beyeler, è pur sempre a quest'ultimo che devono ricondursi gli effetti finali del concluso contratto.
...
E' da escludere, pertanto, che vi sia stato errore di fatto da parte dell'Amministrazione relativamente alla individuazione del soggetto effettivo acquirente e nei cui confronti andava esercitata la prelazione ed al quale andava notificato il relativo decreto, oltre che al Verusio...
D'altra parte, che la prelazione di cui all'art. 30 della legge n. 1089/1939 debba esercitarsi nei confronti del proprietario effettivo e comunque del destinatario finale di una fattispecie acquisitiva complessa quale è il mandato, si ricollega anche alla ... particolare natura dell'istituto.
La prelazione, di cui all'art. 31 e segg. della legge indicata ... non opera alla stregua dell'omonimo istituto civilistico ..., sicché il provvedimento, con cui, in concreto, si esercita la prelazione deve essere ricondotto alla più generale categoria degli atti ablatori (rispetto al quale il negozio di alienazione costituisce mera condizione legittimante del potere), con la conseguenza che non assume valore determinante la validità dell'atto di alienazione presupposto, dal momento che nessuna sostituzione dell'amministrazione al soggetto alienante nel negozio posto in essere da privati avviene col provvedimento della prelazione dal quale, anzi, oltre che un effetto propriamente costitutivo (acquisitivo) discende un (ulteriore) effetto caducatorio del negozio di alienazione medesima...
... trattasi ... piuttosto di un vero e proprio atto espropriativo, che non puó non riguardare se non il proprietario effettivo del bene stesso, unico a poter essere utilmente inciso dall'atto ablativo...”
52. The Consiglio di Stato observed further that the conduct of the authorities could not be considered to be contradictory: as the RAC had already pointed out, the authorities had approached the matter carefully and ultimately had not decided to exercise their right of pre-emption until they were certain, on the basis of documentation in their possession, that the painting had been purchased on behalf of Mr Beyeler and paid for by him. The Consiglio di Stato also pointed out that the nationality of the applicant had increased the Ministry's determination to exercise its right of pre-emption.
53. The Consiglio di Stato also held that the issues raised by the applicant as to the unconstitutionality of sections 31, 32 and 61 of Law no. 1089 of 1939 were manifestly ill-founded. Those issues concerned in particular Article 3 of the Constitution, which embodies – among other things – the non-discrimination principle, Article 42, which guarantees the right of property and, lastly, Article 97, which establishes the principle of sound public administration. As to Article 3, the Consiglio di Stato observed that in the instant case the special nature of the situation resulting from an invalid declaration of sale justified different treatment. As regards Article 42, it considered – with regard to transfers of title to protected works – that private individuals had duties of good faith and transparency. Lastly, as regards Article 97, it found that the State's delay in exercising its right of pre-emption should be attributed to the improper conduct of the parties.
54. The applicant then appealed to the Court of Cassation, arguing that his case came within the jurisdiction of the ordinary civil courts, not the administrative courts. He submitted again that sections 31, 32 and 61 of Law no. 1089 of 1939 were unconstitutional in the light of Articles 3 and 42 of the Italian Constitution.
55. In an order of 11 November 1993 the Court of Cassation held that the constitutionality issues did not appear to be manifestly ill-founded.
56. The Court of Cassation ruled firstly that if the authorities could exercise their right of pre-emption at any time the seller's rights would always be restricted, thus creating continual uncertainty as to the legal position with regard to the work. The Court of Cassation observed in that regard that, even if the first declaration had been invalid, the right of pre-emption could nonetheless have been exercised once the authorities had received all the information required under the statute (pointing out in that connection, as the Consiglio di Stato had already noted, that the Ministry had not exercised its right of pre-emption until it was certain that the painting had been purchased on behalf of Mr Beyeler and in consideration of a sum of money paid by him). The authorities had not been certain of that until the Ministry had received the bank statements relating to the 1977 sale. The Court of Cassation noted that the pre-emption order had been issued and served on the parties more than two months later.
57. The Court of Cassation then found that even supposing that the pre-emption order did amount to an actual expropriation measure, as the Consiglio di Stato had said, the applicant had been treated differently from anyone else whose property had been expropriated. Compensation to which owners of property over which the State exercised its right of pre-emption were entitled was calculated on a different basis from the one used to calculate compensation payable in other cases of expropriation; furthermore, there was no right of judicial review. Although the agreed price stated in the transfer document might constitute sufficient compensation where the pre-emption occurred within the two-month period laid down by the statute, that was no longer true where the right of pre-emption was exercised several years later, as had happened in the instant case. The applicant had also been treated differently from a person who had failed to make a declaration of transfer. The court considered, having regard to section 31(3) of Law no. 1089 of 1939, that where, in the latter type of case, it was impossible to determine the agreed price, the State would have to pay the owner compensation equivalent to the market value of the work.
58. It observed, lastly, that if the Constitutional Court held that the provisions in issue were unconstitutional, one of the consequences would be that the ordinary courts dealing with such cases would have jurisdiction and the applicant would be able to challenge the impugned decision in those courts and rely on the Italian authorities' delay in exercising their right of pre-emption.
59. The Court of Cassation stayed the proceedings before it and ordered the case to be referred to the Constitutional Court.
60. In a judgment of 14 June 1995 the Constitutional Court declared the constitutionality issue raised by the Court of Cassation unfounded. It stressed, firstly, the special nature of the provisions of Law no. 1089 of 1939, which were intended to “protect assets related to the fundamental interests of the cultural life of the country”. The special nature of such assets had accordingly justified the authorities' being granted different, more restrictive powers than those they had in respect of other property. Consequently, there had been no discriminatory treatment as the property was different in kind from that concerned in ordinary expropriation proceedings. Nor was there any difference in treatment between cases where an invalid declaration was made and cases where the sale had not been declared, as, even in the latter case, the compensation payable would be the price agreed at the time of the sale. If the agreed price on an undeclared sale was not known, it had to be determined on the basis of any available evidence.
61. Furthermore, as regards the appropriate price payable by the State when it exercised its right of pre-emption late, the Constitutional Court reiterated that that issue could not be decided on the basis of the criteria used to determine the amount of compensation in ordinary expropriation proceedings, as the proceedings were of a different kind and the amount paid in situations such as the one in the instant case was, in any event, dependent on a contractual element that had been freely decided by the parties. It followed from this latter point that, under normal circumstances, namely in cases where the right of pre-emption was exercised within the prescribed time-limit, the price, despite being less than the market value, would nonetheless not be derisory or symbolic. Lastly, the Constitutional Court noted that section 61 of Law no. 1089 of 1939 was to be found in the part of the statute dealing with “penalties”. A crucial factor was, therefore, the fact that the owner's economic loss was a consequence of an irregularity or of a failure on his part to declare the sale of the property, thus rendering the sale nugatory and entitling the State to exercise its right of pre-emption at any time. However, as it did not amount to a real criminal or administrative penalty, it was right that the authorities should have a discretion to exercise their right of pre-emption at any time. Moreover, individuals could rectify the position at any time by filing a late declaration.
62. Following the decision of the Constitutional Court, the Court of Cassation dismissed the applicant's appeal in a judgment of 16 November 1995, deposited with the registry on 11 March 1996. It held that the administrative courts had jurisdiction in the case and that, both as regards the exercise by the State of its right of pre-emption at any time and the allegation that service of the pre-emption order had been defective, the case concerned issues that related to the way in which the authorities had exercised their powers, not to the exercise of powers which they did not possess.
63. Among other things, the Court of Cassation considered that, in the absence of any legal provision in that respect, it would have been arbitrary for the compulsory two-month time-limit to run from the time at which the (unspecified) departments of the authorities had learnt of the sale on the basis of undetermined factors or circumstances. However, the Court of Cassation found that the right of pre-emption had properly been ruled to be exercisable at any time and against anyone in possession of the property (reiterating that the authorities had not exercised their right of pre-emption until they had been certain that the painting had been purchased on behalf of the applicant). Moreover, it pointed out that the argument concerning the reference in section 61 to section 32 (which, inter alia, provided for a two-month time-limit) was irrelevant as section 32 contained procedural provisions that also applied to State pre-emptions that were not subject to any time-limit, such as the rule that the State acquired title to property when the pre-emption order was made or the rule that the provisions of a sale agreement did not bind the State.
64. During the night of 19/20 May 1998 the painting, which was still in the Rome Gallery of Modern and Contemporary Art, was stolen in an armed robbery along with two other paintings. It was found by the carabinieri and Italian police on 6 July 1998.
65. Under Article 1706 of the Italian Civil Code, the sale of movable property through an agent acting in his own name but on behalf of his principal (indirect agency) has the effect of automatically transferring title to the property to the principal, who can then claim it from the agent.
66. In respect of works of art which are of interest for the artistic heritage of the nation, transfers and other legal transactions are subject to certain conditions. Section 30 of Law no. 1089 of 1 June 1939 provides that the owner or person in possession, in any capacity whatsoever, of property considered to be of cultural or artistic interest within the meaning of section 3 must declare to the Ministry responsible for works of cultural interest (from 1974 the Ministry of Cultural Heritage – Ministero per i beni culturali e ambientali) any transaction, whether for consideration or by way of gift, transferring full or partial title to or possession of the work (“Il proprietario e chiunque a qualsiasi titolo detenga una delle cose che abbiano formato oggetto di notifica a norma degli artcioli precendenti è tenuto a denunziare al Ministro per l'educazione nazionale ogni atto, a titolo oneroso o gratuito, che ne trasmetta, in tutto o in parte, la proprietà o la detenzione”).
67. Sections 31(1) and 32(1) of Law no. 1089 of 1939 provide that the Ministry may exercise a right of pre-emption over the work within two months from the date of the declaration referred to above, at the agreed price as set out in the deed of transfer if the transfer is for value (section 31(1): “Nel caso di alienazione a titolo oneroso, il Ministro per l'educazione nazionale ha facoltà di acquistare la cosa al medesimo prezzo stabilito nell'atto di alienazione”; section 32(1): “Il diritto di prelazione deve essere esercitato nel termine di mesi due dalla data della denuncia”). In the event that the work of art should be sold at the same time as other works for an aggregate price, that price is automatically determined by the Minister or, if the seller contests the price, by a board composed of three members, one of whom is appointed by the seller (section 31(3)).
68. Section 36 provides that the owner or person in possession of such a work must declare any intention to export it. In that event the Ministry may exercise a right of pre-emption over the work within ninety days from the date of the declaration, at a price determined by the Ministry if the work is to be exported to a member State of the European Union and for the value indicated in the declaration in other cases (section 39).
69. Section 61 also provides that “transfers, agreements and other legal transactions made in breach of the provisions laid down in this Law or in non-compliance with the terms and conditions prescribed shall automatically be void” and that the Ministry may still exercise its right of pre-emption under sections 31 and 32 (section 61: “Le alienazioni, le convenzioni e gli atti giuridici in genere, compiuti contro i divieti stabiliti dalla presente legge o senza l'osservanza delle condizioni e modalità da esse precritte, sono nulli di pieno diritto. Resta sempre salva la facoltà del Ministro per l'educazione nazionale di esercitare il diritto di prelazione a norma degli artt. 31 e 32”).
70. The statute also provides that, until the adoption of an implementing decree (none has yet been adopted), the provisions of Royal Decree no. 363 of 30 January 1913 shall continue to apply (section 73). Article 57 of the royal decree prescribes, inter alia, the content of the declarations referred to above, for example, they must contain a brief description of the subject matter of the contract, the type and the terms and conditions of transfer, the names, addresses and signatures of the contracting parties and an indication of the date and place in Italy at which the property sold shall be delivered to the purchaser. Under that provision, a declaration which does not contain all that information in full and precise terms shall be considered to be null and void.
71. Section 63 of Law no. 1089 of 1939 prescribes a prison sentence of one year and a maximum fine of ITL 75,000,000 for, inter alia, failure to make the declaration prescribed by section 30.
72. Lastly, sections 66 et seq. of the royal decree govern expropriations of movable and immovable property and refer in a number of places to Law no. 2359 of 25 June 1865 relating to expropriations in the public interest. In that context Article 67 of the royal decree provides that a public-interest declaration is made by the Minister of Education after the Council for Antiquities and Fine Arts (Consiglio superiore per l'antichità e le belle arti) has given its approval and observations have been received from the Consiglio di Stato.
73. The Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was signed in Paris on 14 November 1970 and came into force on 24 April 1972 (in Italy on 2 January 1979). Article 4 provides:
“The States Parties to this Convention recognise that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State:
(a) cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory;
(b) cultural property found within the national territory;
(c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property;
(d) cultural property which has been the subject of a freely agreed exchange;
(e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.”
74. Mr Ernst Beyeler applied to the Commission on 5 September 1996. He complained that there had been a violation of Article 1 of Protocol No. 1 and of Articles 14 and 18 of the Convention on the ground that the Italian Ministry of Cultural Heritage had exercised a right of pre-emption over a Van Gogh painting which, he alleged, he had lawfully purchased.
75. The Commission declared the application (no. 33202/96) admissible on 9 March 1998. In its report of 10 September 1998 (former Article 31 of the Convention), it expressed the opinion
(a) that there had not been a violation of Article 1 of Protocol No. 1 (twenty votes to ten);
(b) that there had not been a violation of Article 14 of the Convention (twenty-three votes to seven); and
(c) that there had not been a violation of Article 18 of the Convention (unanimously).
The full text of the Commission's opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment.


ITEMID: 001-69396
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PITRA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Partly inadmissible;Pecuniary damage - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1956 and lives in Osijek.
5. On 15 January 1997 the applicant was dismissed from her position at the Osijek Faculty of Agriculture (“the Faculty”). The decision had retroactive effect as of 27 November 1995.
6. On 17 January 1997 the applicant instituted civil proceedings challenging the lawfulness of the Faculty's decision. She claimed to have never been reinstated, as was required by a final court decision from proceedings she had previously instituted against the Faculty, and that she could therefore not have been dismissed.
7. On 12 July 1999 the Osijek Municipal Court (Općinski sud u Osijeku) ruled in the applicant's favour, ordering the Faculty to reinstate her.
8. Following an appeal by the Faculty, on 28 October 1999 the Osijek County Court (Županijski sud u Osijeku) upheld the first instance judgment.
9. The Faculty subsequently filed a request for revision on points of law (revizija). On 3 May 2000, the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the first and second instance judgments and dismissed the applicant's claim. The Supreme Court found that the Faculty was under no obligation to reinstate the applicant and that therefore its decision was in line with the applicable law.
10. On 28 August 2000 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). She claimed that the Supreme Court's judgment was in breach of her constitutional right to work, of the rule of law and of the requirement that the courts adjudicate on the basis of laws and the Constitution.
11. On 24 March 2004 the Constitutional Court dismissed her complaint finding no violation of the alleged constitutional rights.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102352
LANGUAGEISOCODE: ENG
RESPONDENT: MNE
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KAVAJA v. MONTENEGRO
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 1. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the subsequent collapse of the banking system in the 1990s, in 1998, 2002, 2003 and 2006 the Federal Republic of Yugoslavia, as well as the respondent State itself, adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including the Jugobanka in Podgorica, into a public debt. The legislation set the time-frame (2017) and the amounts, including interest, to be paid back to the banks’ former clients (see paragraphs 20-25 below).
2. The applicants are Mr Branko Kavaja (the first applicant), at the time a national of the State Union of Serbia and Montenegro, who was born in 1940 and lives in Nikšić, and Mr Dragutin Miljanić (the second applicant), a Montenegrin national, who was born in 1949 and has a registered residence in Podgorica. The second applicant was represented before the Court by Mr M. Čizmović, a retired lawyer from Podgorica.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. On a number of separate occasions the applicant deposited a certain amount of his foreign currency savings with the Jugobanka in Podgorica (Montenegro), the Inos bank in Paraćin (Serbia) and the Karić bank in Belgrade (Serbia).
5. On 17 February 2003 the applicant was informed that his savings, including interest, had been converted into a public debt pursuant to the 1998 and 2002 legislation and that the method of its payment would be further regulated by Montenegrin law, which was to be adopted shortly (see paragraphs 14-25 below).
6. In October 2003 Montenegro passed the Act on the Citizens’ Foreign-Currency Savings, envisaging that the savings would be released gradually, in annual instalments, by 2017 (see paragraphs 20-25 below).
7. As of 2004 the applicant appears to be receiving regularly his savings in specified annual instalments.
8. On an unspecified date the applicant sought the release of his funds deposited with the Inos bank. In November 2003 the insolvency committee of the bank contested the debt and instructed the applicant to initiate civil proceedings in order to have the debt established. There is no information in the case file as to whether the applicant actually did so.
9. There is no information in the case file as to what happened to the funds deposited with the Karić bank.
10. In July 1982 the applicant deposited 55,000 German Marks in total with the Jugobanka in Podgorica with the stipulated interest rate of 12.5%.
11. On 19 April 2005 the applicant instituted proceedings against the State seeking the release of his funds.
12. On 26 October 2006 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicant stating that his funds were being released gradually in annual instalments as specified in the Act on the Citizens’ Foreign-Currency Savings 2003.
13. On 12 February 2008 and 10 May 2008, respectively, the High Court (Viši sud) and the Supreme Court (Vrhovni sud) in Podgorica upheld this judgment.
14. Articles 1, 2, 3 and 4 provided that all foreign-currency savings deposited with the “authorised banks”, including the Jugobanka in Podgorica, before 18 March 1995 were to become a public debt.
15. Under Article 10 the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
16. Pursuant to Articles 13 - 19 the banks’ clients could make use of their deposits converted into Government bonds in order to pay taxes or, in advance of the said time-frame, for a number of purposes such as buying State property or taking part in the privatisation of State-owned businesses and banks. The former clients of the banks in question could also sell the said bonds, such trading being exempted from taxation.
17. This Act repealed the Act described above. It modified the time-frame for honouring the debt in question (from 2012 to 2016) and specified amended amounts, plus 2% interest, to be paid annually. The annual amounts were EUR 276,10 in 2002, EUR 380 in 2003 and EUR 530 in 2004, while the exact amount of the remaining instalments was to be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount could not be less than EUR 500.
18. Pursuant to Article 13, the banks’ clients could make use of their deposits converted into Government bonds in order to pay taxes or, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, for the payment of medical treatment, medication and funeral costs. In accordance with Articles 10 and 11, the former clients of the banks in question could also sell the said bonds, such trading being exempted from taxation.
19. This Act was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers’ above-described status.
20. Article 3, inter alia, defines “foreign-currency savings” as all foreign currency deposited by natural persons with one of the “authorised banks based in the territory of the Republic of Montenegro” as recognised as a public debt of the Federal Republic of Yugoslavia (see paragraphs 14 and 17 above).
21. Articles 14 and 15 provide that Montenegro shall honour this debt by 2017, and specify the amounts, plus 2% interest, to be paid annually in Euros. The annual amounts were EUR 380 in 2004 and EUR 530 in 2005, while the exact amount of the remaining instalments shall be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount may not be less than EUR 500 should the instalment be less than that.
22. Pursuant to Article 18, the banks’ clients may, in advance of the said time-frame and under certain conditions, make use of their deposits converted into Government bonds in order to pay taxes, buy State property or take part in the privatisation of State-owned businesses.
23. Under Articles 16 and 17 former clients of the banks in question can also sell the said bonds to other natural or legal persons. Such trading is exempt from property taxation and capital gains taxation.
24. Articles 16 § 5 and 18 § 2 provide that the Government of Montenegro shall adopt additional technical regulations concerning the bonds in question.
25. This Act entered into force on 9 October 2003 and its amendments on 28 February 2004.
26. Articles 1, 2 and 3 provide that this Act shall regulate the reimbursement of foreign-currency savings deposited by individuals residing in Montenegro with the authorised banks based outside Montenegro, which funds were then further deposited with the National Bank of Yugoslavia (Narodna banka Jugoslavije).
27. Article 8 provides that Montenegro shall honour this debt by 2017, and specifies the amounts, plus 2% interest, to be paid annually in euros. The first instalment, to be paid within 90 days as of this Act’s entry into force, was EUR 380, the second instalment due in 2008 was EUR 530, while the exact amount of the remaining instalments shall be calculated by multiplying the foreign-currency deposits with a corresponding coefficient for that particular year, the coefficients themselves increasing annually. The minimum such amount may not be less than EUR 500, except for the last instalment.
28. Article 4 explicitly provides that the foreign-currency sums deposited with, inter alia, the Inos bank in Paraćin and “other private banks” are not considered foreign-currency savings within the meaning of this Act.


ITEMID: 001-59720
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ELIAZER v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of Art. 6-3-c;No violation of Art. 14+6
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 8. By summons of 5 June 1995 the applicant was ordered to appear on 14 June 1995 before the First-Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles on charges of possession of about one kilogram of cocaine.
9. By judgment of 28 June 1995, following adversarial proceedings in the course of which the applicant was assisted by a lawyer, the First-Instance Court acquitted the applicant. The prosecution filed an appeal with the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba.
10. As the applicant had failed to appear before the Joint Court of Justice at its first hearing on the appeal on 2 January 1996, he was declared in default of appearance (verstek). The Joint Court of Justice adjourned the proceedings until 9 January 1996. The applicant also failed to appear on 9 January 1996. On that date, the Joint Court of Justice resumed the proceedings and examined the appeal. The applicant’s lawyer attended this hearing and conducted the applicant’s defence.
11. By judgment of 23 January 1996, following proceedings in absentia, the Joint Court of Justice quashed the judgment of 28 June 1995, convicted the applicant of having violated section 3(1) of the 1960 Opium Act of the Netherlands Antilles (Opiumlandsverordening 1960) and sentenced him to two years’ imprisonment.
12. Relying on the Cassation Regulations for the Netherlands Antilles and Aruba (Cassatieregeling voor de Nederlandse Antillen en Aruba), the applicant filed an appeal in cassation with the Netherlands Supreme Court (Hoge Raad), which appeal is limited to points of law and procedural conformity.
13. In its judgment of 27 May 1997, the Supreme Court noted that, pursuant to Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba, no appeal in cassation lay against judgments pronounced following proceedings in absentia.
14. It rejected the argument advanced by the defence, that the appeal in cassation should nevertheless be declared admissible on the ground that this provision of the Cassation Regulations was contrary to Article 14 of the Convention and Article 26 of the International Covenant on Civil and Political Rights in that it constituted an unjustified difference in treatment between persons tried in adversarial proceedings and persons tried in proceedings in absentia.
15. The Supreme Court noted that, according to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles (Wetboek van Strafvordering van de Nederlandse Antillen), a person convicted on appeal following proceedings in absentia could file an objection (verzet) against this conviction. If the accused then appeared before the trial court, the case would, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by the same court in the course of adversarial proceedings and an appeal in cassation would lie against the resulting judgment.
16. The Supreme Court concluded that, in the circumstances, no appeal in cassation lay against the judgment of 23 January 1996. However, on the basis of the contents of a statement made on 29 January 1996 on behalf of the applicant, the Supreme Court interpreted the applicant’s appeal in cassation as being an objection against his conviction in absentia and ordered the transmission of the applicant’s case file to the Joint Court of Justice for a determination of the applicant’s objection.
17. According to Article 216 of the Code of Criminal Procedure of the Netherlands Antilles as in force at the relevant time, an appeal to the Joint Court of Justice lies against a judgment given by the First-Instance Court. This appeal is a full appeal, that is, one comprising both fact and law.
18. Under the Cassation Regulations for the Netherlands Antilles and Aruba an appeal in cassation may be filed with the Netherlands Supreme Court against judgments on appeal given by the Joint Court of Justice of the Netherlands Antilles and Aruba. Such an appeal in cassation is limited to procedural conformity and points of law.
19. According to Article 239 of the Code of Criminal Procedure of the Netherlands Antilles, a person convicted by the Joint Court of Justice in absentia may file an objection (verzet) against this conviction.
20. If the accused then appears at the hearing on the objection before the Joint Court of Justice, the case will, pursuant to Article 240 § 2 of the Code of Criminal Procedure of the Netherlands Antilles, be fully retried by that court. An appeal in cassation lies against the resulting judgment.
21. If the accused does not appear before the Joint Court of Justice for the purpose of a retrial, the objection will be declared defunct and the judgment given in absentia will become final.
22. Article 10 § 2 of the Cassation Regulations for the Netherlands Antilles and Aruba reads as follows:
“The accused cannot file an appeal in cassation against judgments given in absentia [bij verstek gewezen vonnissen].”
23. According to the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba (Memorie van Toelichting, Kamerstukken II, Zitting 1959-1960 – 5959 (R 1945), no. 3, p. 5), Article 10 of these Regulations was based on the following considerations:
“... given the great distance between the seat of the Supreme Court and the Netherlands Antilles, it is not to be recommended to provide for an appeal in cassation in Antillean cases in all cases, where this is possible for cases in the Netherlands ... In general the suspect himself will be to blame that his case has been dealt with in absentia. In these circumstances, there is no cause to attach more weight to his interests than to the inconveniences which are attached to proceedings in cassation in respect of overseas cases.”
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-81008
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FREROT v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Violation of Art. 8;Violation of Art. 13;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
TEXT: 5. The applicant was born in 1956. He is currently detained in Lannemezan Prison.
6. The applicant is a former member of Action Directe, an extreme left-wing armed movement. He was taken into custody in Lyons Prison on 1 December 1987 after two detention orders had been issued by a Lyons investigating judge.
7. On 29 June 1989 the applicant was sentenced to life imprisonment by the Rhône Assize Court for attempted intentional homicide, armed robbery, and hostage-taking with a view to facilitating or preparing the commission of a criminal offence or committing a serious crime.
In a judgment of 14 October 1992 the Paris Assize Court found him guilty of murder, multiple counts of attempted murder and attempted intentional homicide, armed robbery, handling stolen goods, conspiracy, possessing and carrying illegal weapons, forging cheques and using forged cheques, using explosives to destroy or damage immovable or movable property and an explosives offence. It sentenced him to life imprisonment, with a minimum term of eighteen years. On 3 July 1995 the same court sentenced him to thirty years' imprisonment for unauthorised manufacture or possession of explosive substances or devices, theft, criminal damage and terrorism.
8. On 25 September 1994 the applicant applied to the Versailles Administrative Court for judicial review of certain provisions of circulars issued by the Minister of Justice on 14 March and 19 December 1986, the former relating to prisoner searches and the latter to prisoners' written and telegraphic correspondence. He submitted that the circulars contained provisions breaching the decrees and laws in force.
He complained in particular about the procedure for full body searches as laid down in the technical note appended to the circular of 14 March 1986, arguing that it infringed human dignity and thus contravened Article D. 275 of the Code of Criminal Procedure. He further objected to the fact that, with reference to Article D. 174 of the Code of Criminal Procedure, the circular afforded prison staff the possibility of using force to compel prisoners to submit to such humiliating procedures.
The applicant also complained that the circular of 19 December 1986 defined “correspondence” as “written communication between two named persons, as distinct from bulletins, letters, circulars, leaflets and printed matter, whose content does not specifically and exclusively concern the addressee”. He argued that that definition, based on the content of the document, was at variance with freedom of correspondence as enshrined both in domestic law – which did not limit the number of letters that could be received and sent by convicted prisoners and other detainees and guaranteed them free choice as to their correspondents – and in Articles 9 and 10 of the Convention. In his view, it thereby introduced restrictions not envisaged by the law and conferred an arbitrary power of censorship on prison governors. He added that by depriving those held in punishment cells of the possibility of corresponding with their friends or relatives and prison visitors, the circular imposed more restrictive conditions than those laid down in Article D. 169 of the Code of Criminal Procedure, which simply provided for restrictions on correspondence.
The applicant stated that the management of Fleury-Mérogis Prison had regularly sent him to the punishment block because of his refusal to open his mouth during full body searches in accordance with the first of the above-mentioned circulars. He added that on 28 June 1993 the prison governor, referring to the second circular, had refused to dispatch a letter the applicant had written to a friend in another prison – supplying information to assist him in applying for release on licence – on the ground that the letter did not “correspond to the definition of the concept of correspondence”.
In an order registered on 21 November 1994 with the secretariat of the Judicial Division of the Conseil d'Etat, the President of the Administrative Court transmitted the application to the Conseil d'Etat. On 8 December 2000 the Conseil d'Etat gave the following judgment:
“As to the circular of 14 March 1986 issued by the Minister of Justice on prisoner searches:
Article D. 275 of the Code of Criminal Procedure, as worded on the date of the impugned circular, provided: 'Prisoners must be searched frequently and as often as the prison governor deems necessary./ In particular, they shall be searched on their admission to the prison and each time they are temporarily removed from and returned to the prison for whatever reason. They may also be searched before and after visits or meetings of any kind./ Prisoners may be searched only by officers of the same sex and in conditions which, while ensuring that the checks are effective, maintain respect for the dignity inherent in the human being.'
In the first place, Mr Frérot seeks the annulment of the provisions of the circular of 14 March 1986 by which the Minister of Justice envisaged that prisoners could be subjected to full body searches, during which they would be required to undress completely in the presence of a prison officer, and laid down the procedure for carrying out such searches.
Even in the absence of any statute or regulation expressly authorising him to do so, the Minister of Justice, being responsible for the prison service, was empowered to lay down certain of the conditions in which prisoner searches would be carried out, in accordance with Article D. 275 of the Code of Criminal Procedure. Accordingly, Mr Frérot has no grounds for maintaining that the Minister of Justice was not competent to issue the disputed rules in the circular of 14 March 1986.
...
The disputed provisions of the circular of 14 March 1986 are designed to 'ensure that prisoners do not have any object or product on their person that could facilitate assaults or escapes, be the subject of trafficking or enable the consumption of toxic products or substances'. It does not appear from the evidence that the aims thus set forth could be achieved in equivalent conditions without the need to carry out full body searches. The impugned rules provide that a full body search should normally be carried out by a single officer, who is not allowed to have any contact with the prisoner 'except ... when the hair is being inspected', and must take place in a room set aside for the purpose, unless this is impossible because of the layout of the premises, 'out of sight of other prisoners and of anyone not involved in the operation itself'. Regard being had to the measures envisaged to protect prisoners' privacy and dignity, and to the particular constraints inherent in the running of custodial facilities, the Minister of Justice neither interfered disproportionately with the principle set forth in Article 3 of the Convention ..., nor breached the provisions of Article D. 275 of the Code of Criminal Procedure, by which prisoner searches must be carried out 'in conditions which ... maintain respect for the dignity inherent in the human being'.
It follows that Mr Frérot has no grounds for seeking the annulment of the rules laid down in the circular of 14 March 1986 as examined above.
Secondly, Article D. 174 of the Code of Criminal Procedure, as in force at the material time, provided: 'Prison staff must not use force against prisoners except in self-defence or in the event of an attempted escape or resistance through violence or through physical unresponsiveness to orders./ When resorting to force, they must limit themselves to what is strictly necessary.' In reiterating through the circular of 14 March 1986 that a prisoner's refusal to undergo a search may give rise to a disciplinary sanction and, if the prisoner persists in refusing, to the use of force subject to the conditions set out in the above-mentioned provisions, the Minister of Justice did not issue a new rule. Consequently, Mr Frérot's arguments in relation to the references in the circular to the consequences of a prisoner's refusal to undergo a search are inadmissible.
As to the circular of 19 December 1986 issued by the Minister of Justice on prisoners' written and telegraphic correspondence:
Article D. 169 of the Code of Criminal Procedure, as in force on the date of the impugned circular, provided: 'Detention in a punishment cell ... shall entail restrictions on correspondence other than with the prisoner's family. However, prisoners shall retain the possibility of communicating freely with their counsel ...'
By means of the impugned provisions set out in his circular of 19 December 1986, the Minister of Justice specified that remand and convicted prisoners placed in punishment cells would not be authorised during such placement to correspond with 'their friends or relatives' or with prison visitors. Those provisions, which are binding, rank as subordinate legislation. On account of their general nature, they breach the regulations referred to above and constitute illegal interference with the freedom of correspondence which prisoners should continue to enjoy even when detained in a punishment cell, subject to the restrictions that may be decided by the prison governor. Accordingly, without it being necessary to examine the other arguments submitted by Mr Frérot, his application for the annulment of the provisions in question is admissible and well-founded.
As to the refusal by the governor of Fleury-Mérogis Prison to dispatch correspondence from Mr Frérot:
The decision by which the governor of Fleury-Mérogis Prison refused to dispatch a letter addressed by Mr Frerot to another prisoner on 28 June 1993 was, regardless of the content of such correspondence, an internal regulatory measure. As such, it is not amenable to judicial review. The submissions referred to above are manifestly inadmissible and cannot be examined in court proceedings; they must therefore be dismissed.
As to the decisions by the governors of Fleury-Mérogis and Fresnes Prisons to place Mr Frérot in a punishment cell:
In support of his arguments challenging several decisions by the governors of Fleury-Mérogis and Fresnes Prisons to detain him in a punishment cell, Mr Frérot simply objects that the provisions of the circular of 14 March 1986, whose annulment he is seeking through the present application, are unlawful. It follows from the findings set out above that the applicant has no grounds for seeking the annulment of those decisions.
DECIDES:
Article 1: The circular by the Minister of Justice dated 19 December 1986 is annulled in so far as it prohibits all correspondence between remand and convicted prisoners in punishment cells and 'their friends or relatives' or prison visitors.
Article 2: The remainder of the submissions in Mr Frérot's application are dismissed.
...”
9. The applicant was held in solitary confinement from 2 December 1987 and has been detained under the ordinary regime since 22 December 1990. He is registered as a “high-risk prisoner” (détenu particulièrement signalé) but has apparently never been officially notified of this.
He has been held in various prisons: Lyons (early December 1987 to January 1988), Santé (January to March 1988), Fleury-Mérogis (March 1988 to May 1989), Lyons (May to September 1989), Bourgoin-Jallieu (midSeptember 1989), Fleury-Mérogis (September to December 1989), Bois d'Arcy (December 1989 to December 1990), Santé (December 1990 to December 1991), Fleury-Mérogis (December 1991 to September 1994), Fresnes (September 1994 to December 1996), Les Baumettes (December 1996), Arles (December 1996 to December 2003) and Lannemezan (since December 2003), the last two being prisons for offenders serving long sentences (maisons centrales).
10. From the end of the trial in June 1989 until he was transferred to Fleury-Mérogis Prison in September 1989, the applicant was detained under the ordinary prison regime in Lyons and subsequently in Bourgoin-Jallieu; although his activities were severely restricted and he was placed in a wing with other high-risk prisoners, he was allowed to attend mass and to go to the weights room with the other detainees. However, on being admitted to Fleury-Mérogis Prison, he was again placed in solitary confinement, without any reasons being given by the management. This regime continued at Bois d'Arcy Prison, where he was allowed to do exercise with a fellow prisoner only after an eight-day hunger strike; his solitary confinement was ended only after he was transferred to the Santé Prison, where, as subsequently in Fleury-Mérogis Prison, he was granted access to the sports hall, the exercise yard, mass and IT classes. However, in 1993, while in Fleury-Mérogis Prison, he was awoken every morning by the five o'clock patrol on the management's orders; in his submission, he was the only prisoner affected by this measure and when he protested, he was sent to a punishment cell for eight days.
11. On 15 March 1993, while in Fleury-Mérogis Prison, the applicant was for the first time required to open his mouth during a full body search. When he refused to obey, he was sent to the punishment block. From late January 1994 to 26 September 1994 (when he was transferred to Fresnes Prison) he was ordered to open his mouth after leaving the visiting room on one occasion, when leaving the prison premises on two occasions, and during all unannounced full body searches, which were conducted at the “unusual frequency” of three every two months.
12. On 26 September 1994, on account of his refusals to obey orders and his repeated placement in the punishment block, he was transferred to the higher-security Fresnes Prison. He was detained in the wing for high-risk prisoners (until June 1995), where there was only one other prisoner, who was seriously ill. Protesting at the “oppressive social exclusion” this entailed for him, he went on hunger strike for twenty-five days from 20 December 1994. In addition, from September 1994 to September 1996, each time he left the visiting room he was subjected to a full body search, which now included the obligation to “bend over and cough”. When he refused he was sent to a punishment cell. He was subjected to a similar search on 19 June 1995, after the first hearing during his trial in the Paris Assize Court, even though he had been permanently guarded by police officers or detained alone in a cell. When he refused to comply, he was immediately sent to the punishment block. His situation did not improve in that respect until late June 1995, after he had complained about the conditions of his detention at a hearing in the Assize Court.
13. The applicant produced two statements dated 7 November 2005 and 28 May 2006 by Mr Gabriel Mouesca, President of the French section of International Prison Watch, who had himself been held in Fresnes Prison between 1988 and 1996. They certified that in 1994, 1995 and 1996 all prisoners at Fresnes had been systematically subjected to a full body search on returning from the visiting room. Mr Mouesca added that after refusing to comply on one occasion in 1995, disciplinary proceedings had been instituted and he had been sent to a punishment cell for eight days.
14. The applicant produced a further statement dated 23 May 2006 by Ms Héléna Mêtchédé, a prison visitor, attesting that he had endured “inhuman humiliation and unacknowledged isolation” during his two years in Fresnes Prison. In her statement, referring to and attaching four letters which the applicant had sent her on 25 October and 1 and 10 December 1994 and on 11 January 1995, Ms Mêtchédé mentioned the refusal of his request for permission to attend IT classes, to go to mass and to do sport with other prisoners. She added that the applicant had been deprived of personal items and belongings, that he had never received a reply to his letters of complaint, that he had undergone full body searches after each visit from his mother – and that, after refusing to comply, he had been sent to the “cooler” “as a preventive measure” (thus being denied further visits from his mother, who came from Nice for a week every three months) – that he had twice been subjected to a search of this kind while on hunger strike and that the authorities had acted negligently towards him on that occasion.
In her statement Ms Mêtchédé mentioned that she had met the applicant in Fresnes Prison on 14 March 1996, when she had been able to gauge “the severity of his suffering and his distress, but also the dignity with which he endured them”. She concluded as follows:
“... Indeed, these repeated and distressing acts of harassment have not diminished the strength of Maxime Frérot's self-control; all this personal hounding of him has not made him submissive or desperate, but on the contrary, such vile behaviour has undoubtedly helped to strengthen his sense of fighting to ensure respect for prisoners' elementary rights. Even through his prolonged experience of the extreme suffering and the moments of discontent that may affect even the strongest people, Maxime Frérot has managed to control these feelings of distress and incorporate them into his daily life; his moments of anger and revolt have not affected his reason and he has not sunk into the despair that can push an overwhelmed person beyond the point of no return in relation to others or himself. ...”
15. The applicant produced two other statements. One of them, signed on 5 October 2005 by Mr Werner Burki, a former national prison chaplain, confirms that the applicant was not allowed to attend mass while in Fresnes Prison and also notes that he was plunged into “deep despair” as a result. The other, written by his mother and dated 8 May 2005, describes the conditions of his detention, with particular emphasis on the searches.
16. Article 728 of the Code of Criminal Procedure provides: “The organisation and internal regulations of prisons shall be determined in a decree.”
17. At the material time Article D. 275 of the Code of Criminal Procedure provided:
“Prisoners must be searched frequently and as often as the prison governor deems necessary.
In particular, they shall be searched on their admission to the prison and each time they are temporarily removed from and returned to the prison for whatever reason. They may also be searched before and after visits or meetings of any kind.
Prisoners may be searched only by officers of the same sex and in conditions which, while ensuring that the checks are effective, maintain respect for the dignity inherent in the human being.”
Other provisions of the Code of Criminal Procedure state that prisoners are to be searched on their arrival at the prison (Article D. 284), before being transferred or temporarily removed (Article D. 294) and before and after meetings in the visiting room (Article D. 406).
18. It is a second- and third-degree disciplinary offence respectively for a prisoner to refuse to comply with a security measure laid down in the internal regulations and instructions (Article D. 249-2, point (6), of the Code of Criminal Procedure) and to refuse to obey the orders of prison staff (Article D. 249-3, point (4), of the Code). Such an offence may result in a disciplinary sanction such as detention in a punishment cell for a specified period (Article D. 251-2 of the Code). The prison governor or a member of the prison staff to whom this power has been delegated in writing may, as a preventive measure and without waiting for a meeting of the disciplinary board, decide to place the prisoner in a punishment cell if the latter's conduct constitutes a second-degree offence and if such a measure is the only means of putting an end to the offence or preserving order inside the prison (Article D. 250-3 of the Code).
19. Article D. 283-5 (former Article D. 174) of the Code of Criminal Procedure is worded as follows:
“Prison staff must not use force against prisoners except in self-defence or in the event of an attempted escape or resistance through violence or through physical unresponsiveness to orders.
When resorting to force, they must limit themselves to what is strictly necessary.”
20. Circular no A.P.86-12 G1 of the Minister of Justice on prisoner searches, issued on 14 March 1986, reads as follows:
“The Prison Service, which is responsible for the implementation of custodial sentences imposed by the judiciary, has the primary function of ensuring custody of detainees. This function, which necessarily entails maintaining security and order in custodial facilities, must nevertheless always be discharged with due respect for human dignity.
The difficulty of reconciling these two imperatives is especially apparent during full body searches, where prison staff are compelled to interfere with prisoners' privacy, since the use of modern security equipment cannot replace active staff intervention in this sphere.
The purpose of searches is to ensure that prisoners do not have any object or product on their person that could facilitate assaults or escapes, be the subject of trafficking or enable the consumption of toxic products or substances.
In this connection, experience shows that, on account of the ingenuity which certain prisoners are capable of displaying, it is essential to perform not only rub-down searches but also full body searches.
Such searches must be carried out in conditions designed to ensure not only their effectiveness but also respect for the dignity of prisoners and of the staff performing the searches, in accordance with the provisions of Article D. 275 of the Code of Criminal Procedure as resulting from the decree of 6 August 1985.
Section I: Different types of body searches and conditions for conducting them
Prisoners may be searched only by officers of the same sex.
Prisoners are not asked to undress during rub-down searches. For full body searches, however, prisoners are required to undress completely in the presence of an officer.
Contrary to rub-down searches, all contact between the prisoner and the officer is prohibited during full body searches, except when the hair is being inspected.
Full body searches must be carried out in a room set aside for the purpose, where the temperature is acceptable at all times of the year and the location ensures both that the alarm and security facilities are effective and also that the searches take place out of the sight of other prisoners and of anyone not involved in the operation itself.
Collective full body searches are prohibited. Prisoners must therefore enter the room set aside for the purpose one by one.
The number of officers performing a full body search must be strictly limited to the needs assessed, taking into account the prisoner's circumstances and personality. Usually, in the case of prisoners not presenting a risk of any particular incident, the search will be carried out by a single officer.
If architectural constraints do not allow a room to be set aside for individual searches, prisoners undergoing a full body search must be separated from their fellow inmates by a mobile partition (screen, curtains, etc.).
Prisoners may not refuse to be searched; refusal will render them liable to disciplinary sanctions. Should a prisoner persist in refusing, force may be used where appropriate (Article D. 174 of the Code of Criminal Procedure).
The practical procedure for conducting searches is set out in the technical note appended to this circular.
Section II: Circumstances in which searches are to be carried out
I. Full body searches
(A) On entering and leaving the prison
Full body searches are to be systematically performed on prisoners when they enter and leave the prison premises.
(1) Entry
A full body search must be systematically performed on prisoners being taken into custody in the facility, whether they were formerly at liberty or have been transferred by an administrative or judicial authority.
A full body search is also compulsory where prisoners return to the facility after their temporary removal by court order or on medical grounds, or a period of leave. Searches are to be performed in the same conditions where prisoners return to the facility after an outside placement not subject to permanent supervision by prison staff or while they are subject to a semi-custodial regime, where the conditions of their accommodation mean that they are in contact with prisoners not subject to the same regime.
(2) Exit
All prisoners who are discharged, whether prior to their transfer, temporary removal or release, must undergo a full body search before leaving the facility.
The same applies to anyone who is temporarily removed by order of an administrative or judicial authority or for medical reasons (admission to hospital or external consultation).
Prisoners who are granted leave are to be searched before their departure, as are prisoners who are granted an outside placement not subject to permanent supervision by prison staff.
(B) Movements within the detention facility
A full body search is to be systematically performed on prisoners:
- after visits by any person (relatives, friends, lawyers) who has been issued with a visitor's permit in accordance with Articles D. 64 and D. 403, where the meeting has taken place in a visiting room with no partition;
- prior to any placement in a punishment cell or in solitary confinement. To avoid any risk of an altercation, it is advisable for the search to be performed by a different officer from the one who reported the incident resulting in the prisoner's placement in the punishment block.
(C) Unannounced searches
Besides the cases listed in the preceding paragraphs, unannounced full body searches of one or more prisoners may be performed whenever the prison governor or one of his or her direct subordinates deems necessary.
Searches of this kind, which must, save in an emergency, take place on the basis of written instructions, may in particular be performed on occasions when prisoners move about within the detention facility (exercise, workshops, activity rooms).
They concern chiefly, although not exclusively, high-risk prisoners (détenus particulièrement signalés), remand prisoners and anyone whose personality and previous conduct make it necessary to carry out thorough checks.
II. Circumstances in which rub-down searches are to be carried out
Rub-down searches are to be carried out whenever the prison governor so requires, in particular when prisoners move about the detention facility individually or in a group, and must, save in an emergency, take place on the basis of written instructions.
Prisoners going to the visiting room must undergo a rub-down search, unless the prison governor issues a specific instruction for a full body search to be performed, on the basis of the prisoner's personality, the particular circumstances or the regulations on unannounced searches.
While it is appreciated that performing such searches entails both practical and psychological difficulties for warders, they must all be made aware of the importance of strict implementation of these instructions for the protection of staff as a whole and for the proper performance of the Prison Service's custodial function.
Prison governors and senior managers must take particular care to ensure that the instructions which it is their responsibility to give to staff in this sphere are carried out correctly.
Training officers, both at the National Prison Service College and in prisons, must endeavour to explain to trainees and newly recruited officers that, in this sphere especially, the proper implementation of instructions requires not only knowledge of techniques but also an appropriate psychological approach.
...
TECHNICAL NOTE
(A) Rub-down searches
The prisoner stands in front of the officer with his arms and legs apart, the palms of the hands facing the officer and the fingers apart.
The officer inspects the prisoner's hair, ears and neck as appropriate.
The officer then puts his hands on the prisoner's shoulder blades, placing his arms around him and moving them, if necessary, under the prisoner's unbuttoned jacket before sliding them from the shoulders down to the waist along the spinal column.
The officer continues the search in this way, inspecting if necessary the belt and the trouser hip pockets before proceeding to examine the rear thighs, the bend of the knees, the calves and finally the ankles.
After this inspection of the rear side of the body, the officer resumes the process from the level of the prisoner's torso, and in particular the chest, checking if necessary any shirt pockets at this level before doing the same for the belt and front trouser pockets and continuing the inspection from the groin down to the front side of the ankles.
(B) Full body searches
After ensuring that the prisoner's personal effects are removed from him, the officer proceeds to carry out a full body search in the following order.
The officer examines the prisoner's hair, ears and hearing aid if one is present, and subsequently his mouth by making him cough and also by asking him to lift his tongue and to remove any false teeth where necessary.
He then checks the armpits by making the prisoner raise and lower his arms, before inspecting the hands, asking him to keep the fingers apart.
As the crotch area may be used to conceal various objects, it is important for the officer to ensure that the prisoner's legs are spread apart in order to inspect this area.
In the specific case of searches for prohibited objects or substances, the prisoner may be required to bend over and cough. A doctor may also be called to assess whether the prisoner should undergo an X-ray or a medical examination in order to detect any foreign bodies.
Next, the prisoner's feet are inspected, in particular the arch of the foot and the toes.
While returning the prisoner's clothes in the reverse order in which the prisoner took them off, the officer inspects them, taking particular care to check the seams, hems, lining and especially the shoes, ensuring that the latter do not contain any hidden compartments.”
...
VIOLATED_ARTICLES: 13
3
6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101987
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: CHELBAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: The applicant, Mr Anatoliy Anatolyevich Chelbayev, is a Russian national who was born in 1977 and lives in Bataysk in the Rostov Region. He is currently serving his sentence in the correctional colony UCh 398/15 in the town of Bataysk.
The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 January 2003 the applicant was arrested on suspicion of murder and detained in a temporary confinement cell of a local police station.
According to the applicant, from 13 to 16 January 2003 he was held in custody without food or water. On an unspecified date but apparently immediately after his arrest, he was interrogated and beaten up by police officers and was forced to sign unspecified documents.
According to the trial court and appeal judgments (see below), on 13 January 2003 the applicant was questioned by the investigator of the local prosecutor’s office and not by the police officers. The interrogation of 13 Janaury 2003 took place in the presence of a lawyer, apparently appointed as a legal-aid counsel, who subsequently represented the applicant throughout the domestic proceedings. The applicant pleaded guilty during the interrogation. On 14 January 2003, when questioned by the investigator in the presence of counsel, the applicant repeated his confession statements.
During the trial the applicant pleaded not guilty claiming that his confession had been obtained as a result of coercion. When questioned by the trial court, he was unable to cite the names of the police officers who had allegedly ill-treated him, to provide a detailed account of the events or to outline the basic facts his allegations had been based upon.
On 19 August 2003 the Zheleznodorozhny District Court of Rostov-on-Don of the Rostov Region convicted the applicant as charged and sentenced him to ten years’ imprisonment. The court found that the applicant had intentionally killed Mr T., having struck the latter no fewer than thirteen times. The crime had been committed in the flat of Mr S., a friend of the applicant. The court based the conviction, in particular, on the testimony of Mrs Ta., which she had given during the pre-trial investigation, claiming to have been an eyewitness to the crime. According to her statements, the applicant had demanded money from the victim and had then kicked him continuously for 10 to 15 minutes. Mrs Ta. failed to attend the trial. The applicant objected to the reading out of her testimony at the trial. The court rejected his objection. It held, in particular, as follows:
“The court made all necessary efforts to secure the witness Mrs Ta.’s presence; however there is no information about her whereabouts... It follows from the submissions of investigator L. and witness S. that witness Mrs Ta. does not have a permanent place of abode, was temporarily registered at victim Mr T.’s address, but did not live there even before the latter’ s death... The case file contains information that Mrs Ta. previously lived with her relatives; however the court’s officer visited this address and found out that she had not lived there for a long time. Nobody among those who knew her has information about her current whereabouts.”
The court also relied on:
- the testimony of Mr S., whom Mrs Ta. told that the applicant had killed Mr T.;
- testimonies of police officers and investigators who knew from Mrs Ta. and Mr S. that the applicant had killed Mr T. and who also asserted that, after being arrested, the applicant had confessed to the murder;
- a forensic expert’s conclusion that the blood found on the applicant’s shoes belonged to the victim;
- a pathologist’s conclusion that the death of Mr T. had resulted from severe bodily harm caused by repeated kicking;
- the corpse inspection record and several other documents.
As regards the allegation of duress, the court established that on the date of his arrest the applicant had only been questioned by the investigator of the local prosecutor’s office. No police officers had interrogated the applicant either on the date of his arrest or later. The interviews of 13 and 14 January 2003 took place in the presence of the lawyer. The court rejected the applicant’s allegations of ill-treatment by the police officers as unsubstantiated.
In his grounds of appeal the applicant complained, inter alia, that the trial court had not secured the attendance of Mrs Ta., who had been the only eyewitness, that he had not been able to examine this witness in court, that his confession had been obtained under duress and that his lawyer had failed to represent him effectively at the trial. He admitted having beaten the victim on the date of his death, but denied intending to kill him.
On 27 April 2004 the Rostov-on-Don Regional Court upheld the judgment. As regards the applicant’s complaints, it found as follows:
“The appellant’s arguments that Mrs Ta.’s statements were vitiated are baseless, as these statements do not contradict other evidence... The fact that this testimony was taken from Mrs Ta. during the pre-trial investigation does not invalidate their significance as evidence. [...] The allegations of a considerable discrepancy between Mrs.Ta.’s statements and the facts revealed by the corpse inspection record, pathologist’s report and forensic expert’s conclusion, are unsubstantiated.”
The appeal court rejected, as unfounded, the complaint about the lawyer’s ineffectiveness, having observed, in particular, that the applicant had not objected to the lawyer’s participation in the trial at earlier stages of the proceedings, had not requested another lawyer to represent him and had not complained to the trial court about any particular actions or omissions of the lawyer.
On 8 August 2008 the deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Rostov Regional Court. He submitted that the Zheleznodorozhny District Court and the Rostov Regional Court had infringed the applicant’s right to examine witness Mrs Ta. He claimed that a reference to Mrs Ta.’s testimony be excluded from the judgments.
On 4 September 2008 the Presidium of the Supreme Court granted the prosecutor’s application. It found that the appeal court had read out the testimony by Mrs Ta. despite the applicant’s objection, and thus had violated domestic law as regards court procedure in a criminal case. The court observed that at no stage of the proceedings had the applicant been given an opportunity to examine Mrs Ta. and concluded that his right to examine a prosecution witness had indeed been violated. The Presidium accordingly found that Mrs Ta.’s testimony was not to be taken into account and modified the judgments of 19 August 2003 and 27 April 2004 by excluding the reference to her witness statements. The Presidium examined in detail the other items of evidence in the criminal case, reduced the applicant’s sentence to seven years’ imprisonment on the ground that he was in charge of a minor and upheld the remainder of the lower courts’ findings.
According to the applicant, the officers of the correctional colony Uch 398/15 had returned the applicant’s letter to the Court dated 25 September 2008 four times and had only posted it on 31 October 2008. According to the expedition note by the colony, the correspondence was sent to the recipient on 22 October 2008.
The Court received the above letter on 16 December 2008.