ITEMID: 001-101350
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ŁOMIŃSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mr Łukasz Łomiński, is a Polish national who was born in 1985 and lives in Ełk. He was represented before the Court by Ms B. Zwara, a lawyer practising in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The Government maintained that the applicant began to serve his sentence on 6 May 2006, whereas the applicant submitted that the date had been 5 May 2006. The date supplied by the applicant was confirmed by a certificate issued by the authorities of Iława Prison on 27 May 2009, which stated that the applicant had been committed to Iława Prison to serve his sentence on 5 May 2006 and had been due to complete this sentence on 5 December 2009.
4. On 5 May 2006 the applicant was committed to Giżycko Remand Centre where he remained until 24 May 2006.
5. On 24 May 2006 he was transferred to Białystok Prison and was detained there until 22 November 2006.
6. From 22 November 2006 to 5 December 2009 the applicant was detained in Iława Prison. On 6 December 2009 he was released.
7. The parties gave partly differing accounts of the conditions of the applicant's detention in the above-mentioned establishments.
8. The applicant, who submitted that he agreed in general with the facts as supplied by the Government, nevertheless maintained that during most part of his detention he had been held in overcrowded cells in which the statutory minimum standard of 3 m² per person was not respected.
In the applicant's submission, the overcrowding and inadequate living conditions had caused him serious distress and many health problems. He has had suicidal thoughts. He suffers from depression, insomnia, regular headaches, problems with orientation and memory, glaucoma and scurvy.
9. The Government submitted that the period of the applicant's detention in cells in which the statutory minimum requirement of 3 m2 per person had not been respected amounted to some 577 days.
They supplied the following details concerning the conditions of the applicant's detention in each establishment.
10. From 5 to 10 May 2006 the applicant was placed in a cell with a surface area of 7.72 m2, which he shared with 2 other inmates. From 10 to 22 May 2006 he remained in a cell measuring 12.88m2. From 10 to 12 May 2006 he was held in that cell together with 6 other persons, from 12 to 16 May 2006 with 5 persons and from 16 to 22 May 2006 with 3 persons. From 22 to 24 May 2006 he was placed in a cell measuring 6.60 m2 which he shared with 3 other inmates.
11. From 24 to 25 May 2006 the applicant was placed in a cell measuring 15.05 m2, which he shared with 6 other inmates. From 25 May to 8 August 2006 he was held with 2 other inmates in a cell with a surface area of 8.06 m2. From 8 to 13 September 2006 he was placed in a cell that measured 7.98 m2. From 8 to 24 August he shared that cell with 2 other persons, from 24 August to 6 September with 1 person and from 6 to 13 September with 2 persons.
12. From 13 to 20 September 2006 the applicant was held in a cell measuring 6.89 m2 which he shared with 3 other inmates. From 20 September to 31 October 2006 he was held in a cell a the surface area of 7.61 m2. From 20 September to 16 October he was detained with 3 other persons, from 16 to 19 October with 2 persons and from 19 to 31 October again with 3 persons.
13. On 31 October 2006 the applicant was transferred to a cell measuring 6.93 m2 in which he remained until 21 November 2006. From 31 October to 8 November he was detained with 2 other inmates and from 8 to 21 November with 3 inmates. From 21 to 22 November 2006 the applicant was detained in a cell measuring 6.90 m2 with 3 other persons.
14. The Government submitted that the information obtained from the authorities of Iława Prison was incomplete and they could only supply the periods during which the applicant had been held in cells in which the statutory minimum requirement of 3 m2 per person had not been respected. They listed the following periods:
23 November 2006-8 October 2007;
16 -23 October 2007;
14 November 2007-12 May 2008;
16 July -21 November 2008;
22 May-19 July 2009;
26 July -24 September 2009;
30 September – 9 November 2009;
4-5 December 2009.
15. Before lodging his application the applicant had not made any formal complaints to the penitentiary authorities. Nor had he brought a civil action in tort to seek an improvement of his detention conditions or compensation for the alleged breach of his personal rights. He submitted that any such actions would have been ineffective. He maintained, however, that he had made numerous oral complaints to the prison administration, raising the problem of overcrowding and inadequate living conditions in the prisons in which he had been held throughout his incarceration.
16. In the applicant's observations of 22 March 2010 his lawyer stated that “the applicant [had] decided to file a lawsuit against the State Treasury”. The applicant failed to provide the Court with further information as to whether he had indeed lodged a civil action under Articles 24 and 448 of the Civil Code for compensation for the infringement of his personal rights.
17. At the material time, Article 110 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy – “the Code”) provided:
“1. A sentenced person shall be placed in an individual cell or a cell shared with other inmates.
2. The area of the cell shall be no less than 3 square metres per detainee.”
18. Article 248 of the Code, which constituted a legal basis for a possible temporary placement of detainees in cells below the statutory size of 3 m2, as applicable at the material time, read as follows:
“1. In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a specified period of time, in conditions where the area of the cell is less than 3 square metres per person. Any such decision shall be communicated promptly to a penitentiary judge.
2. The Minister of Justice shall determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ...”
19. Acting on the basis of Article 248 of the Code, in 2000, 2003 and 2006 the Minister of Justice issued three subsequent ordinances bearing the same title: “Ordinance on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments (Rozporządzenie Ministra Sprawiedliwości w sprawie trybu postępowania właściwych organów w wypadku, gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali kraju ogólną pojemność tych zakładów ).
The first ordinance (“the 2000 Ordinance”) was issued on 26 October 2000. It was repealed on 26 August 2003 by the second ordinance (“the 2003 Ordinance”), which entered into force on 1 September 2003 (see Orchowski, cited above, § 76).
On 19 April 2006, the third ordinance (“the 2006 Ordinance”) was issued; it entered into force on the same day. It repealed the previous 2003 Ordinance and remained in force until 6 December 2009, i.e. the date on which the Constitutional Court's judgment of 26 May 2008 took effect (see Orchowski, cited above, § 84; and paragraph 29 below). All the ordinances contained similar provisions authorising the prison authorities to place – temporarily – detainees in cells with surfaces below 3 m2 in situations where the overall capacity of Polish detention facilities was exceeded on a nationwide scale.
20. Paragraph 1.1 of the 2006 Ordinance provided:
“In the event that the number of detainees placed in prisons and remand centres, as well as in subordinate detention facilities, hereinafter referred to as 'establishments', exceeds on a nationwide scale the overall capacity of such establishments, the Director General of the Prison Service, within seven days from the day on which the capacity is exceeded, shall convey information thereof, hereinafter referred to as 'information' to the Minister of Justice, the regional directors of the Prison Service and the governors of the establishments ...”
Paragraph 2 of the Ordinance read:
“1. Having received the relevant information, the regional director of the prison service and the governor of the establishment are under a duty, each within their own sphere of competence, to take action in order to adapt quarters not otherwise included in the establishment's [accommodation] capacity, to comply with the requirements for a cell.
...
3. Detainees shall be placed in supplementary cells for a specified period of time after the establishment's capacity is exceeded.
4. In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed, for a specified period of time, in conditions where the area of a cell is less than 3 square metres per person.”
21. On 26 May 2008 the Constitutional Court gave its landmark judgment concerning the unconstitutionality of Article 248 of the Code (see paragraph 18 above) in that it allowed, for all practical purposes, the indefinite and arbitrary placement of detainees in cells below the statutory size of 3 m² per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment.
22. The most relevant parts of that ruling are rendered in paragraph 85 of the Orchowski judgment and in paragraphs 79-88 of the Norbert Sikorski judgment, which also contain extensive citations from the reasoning.
For the purposes of the present decision the judgment can be summarised as follows.
23. The Constitutional Court held that Article 248 of the Code was in breach of Article 40 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 41 § 4 (right of a detainee to be treated in a humane manner) and Article 2 (the principle of the rule of law) of the Constitution. It expressed the view that overcrowding in itself could be qualified as inhuman and degrading treatment. If combined with additional aggravating circumstances, it might even be considered as torture. In that connection the court noted that already the statutory minimum standard of 3 m² cell space per person was one of the lowest in Europe.
24. The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases, for example the occurrence of an engineering or building disaster in prison. A legal provision designed to address exceptional situations should not leave any doubt as to the definition of those permissible circumstances, the minimum size of the cell and maximum time when the new standards would apply. It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases.
In contrast, Article 248 of the Code of Execution of Criminal Sentences gave a wide discretion to prison governors to decide what constituted “particularly justified circumstances” and in consequence condoned the permanent state of overcrowding in detention facilities. It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area.
25. Having regard to “the permanent overcrowding of the Polish detention facilities”, the Constitutional Court ruled that Article 248 of the Code of Execution of Criminal Sentences should lose its binding force within eighteen months from the date of the publication of the judgment.
The judgment was published in the Journal of Laws (Dziennik Ustaw) on 6 June 2008.
The Constitutional Court justified the delayed entry into force of its judgment by the need to undertake a series of measures to reorganise the whole penitentiary system in Poland in order to, ultimately, eliminate the problem of overcrowding. It was also noted that, in parallel, a reform of criminal policy was needed with the aim of achieving a wider application of preventive measures other than deprivation of liberty. The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where, because of the lack of cell space in Polish prisons, many convicted persons could not serve their prison sentences. At the time when the judgment was passed, the problem of overcrowding affected some 40,000 persons.
26. A detailed description of the relevant domestic law and practice (as applicable at the relevant time) concerning a detainee's right to make complaints, applications or to challenge unlawful decisions given by the prison authorities before a penitentiary judge and penitentiary court in the course of the enforcement of a criminal sentence or detention order, is included in paragraph 77 of the Orchowski judgment and in paragraphs 5158 of the Norbert Sikorski judgment.
27. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
28. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
29. Articles 417 et seq. of the Polish Civil Code provide for the State's liability in tort.
Article 417 § 1 of the Civil Code (as amended) provides:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
30. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years from the date on which the claimant learned of the damage and of a person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
31. In its judgment the Supreme Court acknowledged for the first time that a detainee might, under Article 24, read in conjunction with Article 448 of the Civil Code, lodge a civil claim against the State Treasury and seek compensation for infringement of his personal rights, in particular, the right to dignity and private space (intymność), on account of overcrowding and inadequate living and sanitary conditions in a detention establishment. It further held that the burden of proof that conditions in a detention establishment complied with the required standards and that there was no infringement of personal rights lay with the defendant prison authority.
In that context, the Supreme Court referred to the statutory minimum space of 3 m2 per person, recalling that only in justified cases defined in Article 248 of the Code and in accordance with the procedure laid down in the 2006 Ordinance could that minimum be reduced for a specific period, which had to be precisely determined and not be excessively long – as it constituted an exception to the rule.
The Supreme Court also reiterated two essential principles underlying Article 24. First, a defendant was liable under this provision regardless of whether or not there was any fault on his part. Second, there was a presumption of unlawfulness of actions infringing personal rights, which meant that a plaintiff was absolved from proving this circumstance, whereas a defendant had a duty to demonstrate before the court that his actions were in accordance with the law.
32. Further details of the civil action in which the judgment originated (and which was ultimately dismissed) are stated in paragraphs 80-81 of the Orchowski judgment and in paragraphs 66-70 of the Norbert Sikorski judgment.
33. In the case of Orchowski and Norbert Sikorski, the Government submitted twelve judgments delivered by the Polish civil courts in 2006 and 2007 and nine final judgments delivered in 2008, which concerned claims brought by former detainees on account of the alleged infringement of their personal rights. Those claims derived from various situations, including detention with inmates who smoked, food poisoning, bodily injury caused by an inmate, risk of HIV infection and, also, overcrowding in prison.
In four final judgments delivered in late-2007 and in ten final judgments delivered in 2008 the plaintiffs were awarded compensation for the infringement of their personal rights on account of overcrowding and insanitary conditions in their cells. In certain cases the plaintiffs were detained together with smokers or persons with hepatitis C.
A more detailed description of the relevant rulings is included in paragraphs 79 and 82-83 of the Orchowski judgment and in paragraphs 7174 of the Norbert Sikorski judgment.
34. In implementation of the above-mentioned Constitutional Court's judgment, whereby Article 248 of the Code lost its force on 6 December 2009 (see paragraph 33 above), Parliament adopted the law of 9 October 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”). The law entered into force on 6 December 2009 and introduced a number of new detailed rules governing temporary placement of detainees in cells below the statutory minimum size of 3 m2.
35. In Article 110 of the Code, after paragraph 2, new paragraphs 2a-i were added.
Paragraph 2a gives a list of emergencies where the reduction of the cell space per person can be applied for a maximum period of 90 days. It reads, in so far as relevant, as follows:
“2a. The Governor of a prison or remand centre may place a detainee for a specified period not longer than 90 days ...in a cell, in which the area per detainee is less than 3m2 but not less than 2 m2 in the event of:
1) introduction of martial law, state of emergency or natural disaster ...
2) announcement of an epidemic risk or an epidemic in the region in which the prison or remand centre is located or an outbreak of an epidemic or risk of an epidemic in the prison or remand centre – regard being had to the level of threat to life and health;
3) need to prevent other events amounting to a direct threat to security of a [detainee] or security of the prison or remand centre or to mitigate the consequences of such events;
Paragraph 2b lists specific circumstances where the prison authorities may reduce the cell space per person below 3 m2 for a period not exceeding 14 days.
2b. The Governor of a prison or remand centre may place a detainee, for a specified period not longer than 14 days ... in a cell, in which the area per detainee is less than 3 m2 but not less than 2 m2 if it is necessary to place him immediately in the prison or remand centre that have no free places in cells:
1) a person sentenced to imprisonment exceeding 2 years;
2) a person referred to in Articles 64 §§ 1 or 2 and Article 65 of the Criminal Code [recidivist];
3) a person sentenced for the offences defined in Articles 197-203 of the Criminal Code [sexual offences and offences against morals];
4) a convicted person who [has escaped] from prison;
5) a convicted person who, during leave from prison or a remand centre has not returned to prison;
6) a person transferred from another prison or remand centre under a decision given by the court or prosecutor, in order to take part in a hearing or other procedural acts;
7) a person detained on remand, committed to prison for contempt of court or person in respect of whom other coercive measures have been applied;
Paragraph 2c reads as follows:
2c. The period referred to in paragraph 2b, may be extended only after approval by a penitentiary judge. The whole period of the placement in conditions defined in paragraph 2b may not exceed 28 days.
...
Paragraphs 2e-2i state the following:
2e. A decision issued pursuant to paragraphs 2a-2c shall specify the period of the placement and the reasons for placing a [detainee] in conditions where the area per detainee is less than 3 m2 and state the term for which a [detainee] shall be held in these conditions.
2f. The court shall examine a complaint against a decision issued pursuant to paragraphs 2a-2c within 7 days.
2g. A decision to place a [detainee] in conditions referred to in paragraphs 2a-2c shall be quashed immediately if the reasons for which it has been issued no longer exist.
2h. In situations referred to in paragraphs 2b and 2c, a [detainee] shall be assured daily walks, half-hour longer [than regular ones] and the possibility of taking advantage of additional cultural and educational activities or sports activities.
2i. The provisions of paragraphs 2b or 2c may not be applied in respect of the same [detainee] earlier than 180 days from the end date of the period of the placement in conditions referred to therein.
36. Following the 2009 Amendment, in Article 151 of the Code, which lists circumstances in which the enforcement of a sentence may be suspended, a nationwide overcrowding in detention facilities was included as an additional circumstance justifying the suspension. This provision, in so far as relevant, reads as follows:
“1. The court may suspend the enforcement of a sentence of imprisonment for a period of up to 6 months if the immediate enforcement of the penalty would entail too harsh consequences for a convicted person or his family or if the number of persons detained in prisons or remand centres exceeds on a nationwide scale the overall capacity of such establishments.”
37. The 2009 amendment repealed the 2006 Ordinance (see also paragraphs 27-28 above) and added a new paragraph 5 to Article 110 of the Code. Pursuant to that paragraph, the Minister of Justice shall determine by means of an ordinance the rules to be followed by the relevant authorities in a situation where the number of persons detained exceeds, nationwide, the overall capacity of prisons and remand centres.
38. On 25 November 2009 the Minister of Justice issued the Ordinance on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded, nationwide, the overall capacity of such establishments. It entered into force on 6 December 2009.
39. The Government, as they did in the Orchowski and Norbert Sikorski cases, produced a list of cases where the plaintiffs – detainees – sought, and were in some cases awarded, compensation for the infringement of their personal rights. The list partly overlapped with the one submitted in Orchowski. It comprised 19 civil cases involving various claims for compensation under Articles 23 and 24 read in conjunction with Article 448 of the Civil Code brought by detainees against the prison authorities.
40. In five judgments, namely:
no. IACa 586/06, Gdańsk Court of Appeal, of 20 September 2006; case brought by A.B.;
no. IACa 1245/05, Gdańsk Court of Appeal, of 13 December 2005; case brought by W.L.;
no. IACa 709/07, Szczecin Court of Appeal, of 10 January 2008; case brought by Norbert Sikorski (for details of the action and its outcome, see Norbert Sikorski, cited above, §§ 40-42);
no. IACa 814/07, Poznań Court of Appeal, of 31 October 2007; case brought by K.K.;
no. IVCa 193/07, Słupsk Regional Court, of 15 June; case brought by L.W.
the courts awarded plaintiffs compensation for damage to their health caused by their prolonged detention with inmates who smoked. No awards were made on account of overcrowding.
41. In the case of a certain S.G. (judgment of the Cracow Court of Appeal of 23 February 2007, no. IACa 103/07), the court held that there was no legal basis to grant the plaintiff compensation for overcrowding since the reduction of the cell space below the standard minimum had been applied under the provisions of the 2003 Ordinance. This measure could not, therefore, be considered an unlawful act justifying the application of provisions for the protection of personal rights (for further details see Orchowski, § 82).
42. In the remaining 13 cases the relevant courts awarded plaintiffs compensation on account of overcrowding and insanitary conditions in their cells. The judgments were delivered on various dates between March 2007 and July 2008.
43. The Government also supplied copies of two further final judgments delivered in civil cases brought by detainees.
However, the first judgment, given by the Warsaw Court of Appeal on 18 March 2008 in the case no. IACa 587/07, brought by a certain M.M., a mentally ill person, concerned a claim for damages arising from a wrong diagnosis and resultant lack of psychiatric treatment in detention. The issue of overcrowding was not raised in that case.
44. The second judgment was given by the Łódź Court of Appeal on 16 June 2009 in the case no. IACa 332/09 brought by a certain J.P.
The plaintiff's claim for compensation for the infringement of his personal rights caused by overcrowding, insanitary conditions of detention and placement in cells with persons infected with HIV and HCV was dismissed at first instance by the Łódź Regional Court. While the court held that it was undisputed that J.P. had been held in overcrowded cells, which undoubtedly constituted an infringement of his personal rights, it concluded that he had not demonstrated that, as a result, he had suffered any damage to his health. Accordingly, it found no basis for awarding him any compensation.
The Court of Appeal amended the judgment and granted the applicant 5,000 Polish zlotys (approximately 1,300 euros at the material time) in compensation. It further reiterated a number of principles relevant for the determination of claims for the infringement of personal rights.
First, the Court of Appeal stressed that under Article 448 of the Civil Code a plaintiff was not obliged to prove that he had suffered any damage to his health but to show that he sustained non-material damage caused by the infringement of his personal rights. Second, he had to produce evidence demonstrating the extent of the damage suffered. In determining an award, the court, for its part, should take into account such factors as the intensity of the suffering, whether the damage was permanent or irreversible and whether it was possible for a plaintiff to reverse its consequences by recourse to other civil remedies. It should also have regard to the nature of the right infringed, the degree of culpability on the part of the defendant and the defendant's financial situation. The ratio of Article 448 was not purely compensatory – another aim was to provide the plaintiff with satisfaction, which meant that an amount awarded should constitute a tangible financial sanction for the defendant. However, the court explained further that, in general, sums awarded under Article 448 should be moderate and reflect the prevailing national financial circumstances. They should not be a source of enrichment for the plaintiff.
45. On 17 March 2010 the Supreme Court examined, and allowed, a cassation appeal (skarga kasacyjna) lodged by a certain B.W. against the judgment of the Łódź Court of Appeal of 22 April 2008 (case no. IACa 221/08) upholding the first-instance dismissal of the plaintiff's claim for compensation for the infringement of his personal rights caused by overcrowding in prison.
The lower courts established that from the end of 2005 to July 2007, that is to say for some eighteen months, the applicant had been held in a cell designed for 11 persons with 16 or even more inmates. However, they considered that those conditions had not been in breach of Article 40 (prohibition of torture, cruel, inhuman or degrading treatment or punishment), Article 41 (duty to treat detained persons in a humane manner) and Article 47 (right to protection of private life) of the Constitution but had been a normal consequence of the execution of a penalty and constituted a form of suffering normally associated with serving a prison sentence. The prison authorities had informed the penitentiary court of the overcrowding in their establishment and the need to apply the measures foreseen by Article 248 of the Code. It was true that no specific term had been fixed for the application of those measures but Article 248 did not oblige them to set any specific time-frame. The applicant had not made any complaints about the conditions of his detention to the relevant authorities. Moreover, he had refused a proposal of transfer to a “half-open” prison, thus renouncing the possibility of improving his situation.
In view of the foregoing, the courts found that the actions taken by the defendant authorities had been legitimate and could not be considered unlawful for the purposes of Articles 23 and 24 of the Civil Code.
46. The Supreme Court quashed the Court of Appeal's judgment and remitted the case.
Referring to its earlier judgment of 28 February 2007 (see paragraphs 3940 above), it restated the principle that the right to be detained in conditions respecting one's dignity undoubtedly belonged to the catalogue of personal rights and that actions infringing this right could involve the State Treasury's liability for the purposes of Articles 24 and 448 of the Civil Code.
The Supreme Court observed that the Court of Appeal, in determining the lawfulness of the defendant's actions, had failed to consider whether the requirements of Article 248 of the Code had been complied with. First, it had not established whether there had been a “particularly justified case” as required under this provision, allowing the authorities to place the plaintiff in a cell below the statutory minimum size of 3 m2. The fact that there had been a temporary overcrowding in prison, without any explanation of the cause of this situation, was not sufficient to justify the application of Article 248. The notion of “particularly justified case” should be understood as an exceptional or special circumstance and not simply any given situation. It could conceivably include such situations as an increase in crime and in sentences of imprisonment, imposition of martial law, emergency, epidemics or natural disasters. Accordingly, in order to establish whether there was a “particularly justified case” the court could not rely on a general phenomenon of overcrowding in prisons within the whole country.
Moreover, the Court of Appeal had been wrong in finding that the absence of any specific time-frame in Article 248 absolved the authorities from setting a precise period for which the measures would be applied in the plaintiff's case. Thus, the relevant rule spoke of a “specified period of time”, which by no means meant an indefinite and unforeseeable term.
Finally, the Supreme Court referred to the argument that the plaintiff, by his refusal of a transfer to another prison, legitimised the authorities' decision to continue his placement in a reduced-size cell. This, the Supreme Court stressed, could not eliminate the unlawfulness of their actions. In that respect, it reiterated that, pursuant to Article 30 of the Constitution, the inherent and inalienable dignity of the person was inviolable and the respect and protection thereof was a duty incumbent on the authorities. This principle had a particular meaning in situations where the State imposed repressive measures. The exercise of this power could not restrict the right to dignity and the right of persons detained to be treated in a humane manner as these rights had an absolute character.
47. Data relating to the total capacity of Polish detention establishments published by the Ministry of Justice – Central Board for Prison Service (available on the Prison Service's official website http://www.sw.gov.pl) show that those establishments can admit up to 85,000 persons (the figures given by the authorities range from 80,733 to 85,048).
According to monthly statistical reports published by the Ministry of Justice, as of 31 May 2010 the number of persons detained in Polish prisons stood at 83,954, of whom 88.33% were serving their sentences and 11.12% were detained on remand; the remaining persons served short sentences of imprisonment imposed for commission of administrative offences. As of 30 June 2010 the number of detained was 82,697 and as of 31 July 2010 it decreased to 81,351. The proportion of persons detained on remand and those serving sentences remained essentially unchanged. Over the period from January to July 2010 the prison population gradually decreased – by 690 persons in May 2010 and by 1,257 and 1,346 in June and July 2010 respectively.
48. On 13 July 2010 the Central Board for Prison Service published a communiqué on the prison population, stating that as of 5 July 2010 the number of persons detained in prisons and remand centres had not exceeded the overall capacity of those establishments on a nationwide scale within the meaning of the 2009 Ordinance and that the occupancy rate was 98.4%, which meant that the overcrowding no longer existed.
49. On 6 September 2010 a similar communiqué was issued. It stated that as of that date the occupancy rate in detention facilities was 97.4%, which demonstrated that the problem of overcrowding had been handled. The summary statistical report of 6 September 2010 indicated that the total capacity of detention facilities was 80,733 persons and that the number of persons detained stood at 78,642.


ITEMID: 001-89646
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VERITAS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant company is registered in Dnipropetrovs’k.
5. On 22 August 2001 the applicant company lodged a claim with the Dnipropetrovs’k Regional Commercial Court against the Commercial Bank P. (“the Bank”) seeking compensation for damages because of the latter’s failure to withdraw a sum of money from the account of a third party, S., in the framework of enforcement proceedings against S.
6. By decision of 13 September 2001, the court found against the applicant company. On 6 November 2001 the Dnipropetrovs’k Regional Commercial Court of Appeal dismissed an appeal lodged by the applicant company and upheld the decision of the first-instance court.
7. By decision of 18 February 2002, the Higher Commercial Court, on the applicant company’s appeal, quashed the decisions of the lower courts and found for the applicant company.
8. On 4 June 2002 the Supreme Court of Ukraine, upon appeal by the Bank, quashed the resolution of the Higher Commercial Court on the ground that that court’s findings had been unfounded and erroneous, and upheld the decisions of the first-instance and the appellate courts.
9. The relevant provisions read as follows:
“State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.
Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.”
“Justice in Ukraine is administered exclusively by the courts...
The jurisdiction of the courts extends to all legal relations that arise in the State.
Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction...”
“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.
The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction...”
“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.
The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”
10. Article 111-18 of the Code of Commercial Procedure (at the material time) provided as follows:
“The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution of the Higher Commercial Court of Ukraine, shall be entitled to:
1) leave the resolution unchanged and dismiss the appeal (request);
2) quash the resolution and remit the case to the first-instance court for further consideration;
3) quash the resolution and nullify the proceedings in the case.”
11. Other relevant domestic law is summarised in the case of Sokurenko and Strygun (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, §§ 10-12, 20 July 2006).
VIOLATED_ARTICLES: 6


ITEMID: 001-94977
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FİKRET ÇETİN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1969 and lives in Diyarbakır.
6. In 1994 criminal proceedings were brought against the applicant before the Diyarbakır State Security Court (“the trial court”) for the offence of membership of an illegal organisation. On 15 April 1999 he was acquitted of the charges. When acquitting him, the trial court considered that there was insufficient evidence to prove that the applicant was a member of the illegal organisation. It found, however, that there was sufficient evidence to show that he had aided and abetted the organisation. Nevertheless, considering that the applicant had been coerced to aid and abet the organisation by its members, the trial court concluded that the applicant did not have the requisite mens rea and acquitted him.
7. Before the appeal lodged by the prosecutor against the applicant's acquittal was examined by the Court of Cassation, the statute of limitations for the offence in question had been reached. Accordingly, on 1 February 2000 the Court of Cassation discontinued the criminal proceedings against the applicant.
8. On 2 June 2000 the applicant was arrested once more and was examined by a doctor before he was placed in police custody in Diyarbakır. According to the report of the medical examination, there were no injuries on the applicant's body.
9. According to the applicant, during his time in police custody he was subjected to ill-treatment.
10. On 5 June 2000 police officers took the applicant to a café and two shops in the nearby town of Ergani, which had been bombed in 1993. According to the statements drawn up pertaining to those visits, the applicant told the police officers that he had carried out the bombings with the assistance of a number of other persons.
11. In a statement taken from the applicant in police custody the same day, the applicant was reported as having detailed his activities within the PKK.
12. On 6 June 2000 the applicant was released from police custody and was brought before a prosecutor and then before a judge, who questioned him further. The applicant denied the statements taken from him by police officers the previous day, and added that he had not been involved in any bombing. The applicant told the judge that he had signed the statements in police custody because he had thought that he would be ill-treated by the police officers if he refused to sign them. He added that in 1993 he had collected money by making threats on behalf of the PKK, taken part in demonstrations and distributed leaflets in support of that organisation, but that he had already been tried and spent time in prison for those activities (see paragraphs 6-7 above). The judge remanded the applicant in custody pending the introduction of criminal proceedings against him. The same day the applicant was examined by a doctor, who reported that there were no injuries on the applicant's body.
13. When questioned by the police officers and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer.
14. On 1 August 2000 the prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory.
15. In the proceedings before the trial court the applicant was represented by a lawyer. During the trial the applicant repeatedly denied his police custody statements and told the trial court that the statements had been taken from him under “intense pressure”.
16. On 6 November 2001 the trial court found the applicant guilty of offences of membership of an illegal organisation and planting explosives. He was sentenced to seventeen years, four months and ten days' imprisonment. In convicting the applicant the trial court relied on the statements taken from him in police custody (see paragraph 11 above). In response to the applicant's lawyer's submissions that the applicant was being tried twice for the same offence, the trial court stated in its judgment that the previous trial had not concerned the bombing incidents.
17. On 13 November 2001 the applicant appealed against his conviction and argued, inter alia, that he had been subjected to ill-treatment in police custody and that he had been forced to sign a number of documents.
18. In his written observations submitted to the Court of Cassation the prosecutor referred to the applicant's allegations of ill-treatment and drew the Court of Cassation's attention to the trial court's failure to take into account a video recording which had apparently been made at the time when the police officers took the applicant to the café. The prosecutor's observations were not communicated to the applicant.
19. As requested by the applicant, the Court of Cassation held a hearing before it rendered its decision on the appeal. Nevertheless, neither the applicant nor his lawyer attended the hearing. On 20 June 2002 the Court of Cassation rejected the appeal and upheld the applicant's conviction. The decision was deposited with the registry of the trial court on 16 December 2002.
VIOLATED_ARTICLES: 6


ITEMID: 001-110812
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MADAH AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The first, second and third applicants were born in 1965, 1973 and 2006 respectively.
6. In the period between 1990 and 2001 the first applicant visited Bulgaria on a number of occasions. It appears that in 1992 he obtained a temporary residence permit on the strength of his business activity. In 2001 he was granted a permanent residence permit.
7. In 2004 he met the second applicant and from the beginning of 2005 they lived together. Following a complicated pregnancy, on 10 April 2006 their son, the third applicant, was born. The child’s health has been fragile ever since, with frequent episodes of pulmonary disease.
8. On 27 December 2005 the head of the National Security Service at the Ministry of Internal Affairs made an order for the first applicant’s expulsion on the ground that he presented a threat to national security. He also deprived the applicant of the right to reside in Bulgaria and excluded him from entering Bulgarian territory for a period of ten years. No factual grounds were given. The order relied on a classified internal document of 15 December 2005, which was not served on the applicant. It appears that the applicant was able to consult it during the ensuing court proceedings (see paragraphs 12-16 below).
9. The internal document stated that the first applicant was involved in drug trafficking for the purposes of financing the militant Kurdish separatist group Kongra-Gel (the former PKK). The order stated that the first applicant should be detained pending expulsion and that it was subject to appeal to the Minister of Internal Affairs, but not to judicial review, and that it was immediately enforceable.
10. The first applicant was served with the order on 21 February 2006. On the same day the head of another government agency, the Migration Directorate of the national police, made another order for the first applicant’s detention pending expulsion. The applicant was arrested and placed in a detention facility in Sofia. Pursuant to an order of 18 July 2006 he was transferred to another special detention facility outside the city.
11. The first applicant was released on 28 October 2006. It appears from his submissions that on an unspecified date after his release he was interviewed at the Iranian embassy about his alleged connections with a Kurdish separatist organisation.
12. On 9 March 2006 the first applicant sought judicial review of the expulsion order by the Sofia City Court, claiming that the order was unlawful and referring to his difficult family situation due to the complicated pregnancy of his partner, the second applicant.
13. On 13 March 2006 the first applicant also appealed against the order for his expulsion to the Minister of Internal Affairs. On 30 March 2006 the appeal was returned to the applicant on the ground that it had been submitted out of time and that judicial proceedings for the order’s review were pending.
14. In the course of the court proceedings the first applicant provided the court with a document, issued by the National Investigation Service, certifying that at that time no criminal proceedings were pending against him. He also submitted written observations in which he claimed that he had never been involved in the activities mentioned in the classified internal document. He also referred to his family situation, the Convention and the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002).
15. The defendant, the National Security Service, submitted a copy of the internal document of 15 December 2005 which had served as the basis for the expulsion. Despite the first applicant’s request to this effect, the court did not order the head of the National Security Service to produce further information or evidence regarding the reasons for the applicant’s expulsion.
16. By a judgment of 26 July 2007 the Sofia City Court dismissed the appeal. The court found, inter alia, that the document of 15 December 2005 had to be regarded as an official certification that the first applicant was a threat to national security and that as such it was binding on the court.
17. Upon the first applicant’s appeal, by a final judgment of 28 May 2008 the Supreme Administrative Court upheld the lower court’s judgment, fully endorsing its conclusions and not engaging in examination of the evidence allegedly supporting the view of the authorities that the first applicant posed a threat to the national security. The court held that the deportation order was lawful and fully justified by the attached internal document and did not run counter to the Convention because the applicant had been able to challenge it before a court. The court further stated that the first applicant’s rights had been restricted in accordance with the law and for the protection of the public interest. It also noted that given the existence of information about the first applicant’s involvement in drug trafficking for the purpose of financing a terrorist organisation, the executive authority had rightly decided that the applicant constituted a threat to national security.
18. On an unspecified date in 2006 the first applicant challenged the order of 21 February 2006 for his placement in a special detention facility before the Sofia City Court. On 23 June 2006 he requested suspension of the execution of the detention order.
19. In a decision of 16 October 2006 the court granted the request and suspended the effect of the detention order for the course of the proceedings. The court stated, in particular, that the authorities had failed to provide evidence for the necessity of such a measure. It pointed to the duration of the detention (at that time eight months) and to the family situation of the first applicant. The decision became final on an unspecified date as the parties had not lodged an appeal and the applicant was released on 28 October 2006.
20. In a final judgment of 23 February 2009 the Supreme Administrative Court discontinued the proceedings without examining the appeal on the merits. It held that the order for the applicant’s placement in a detention facility was subordinate to the order for his expulsion and issued within the course of expulsion proceedings. It was not therefore subject to judicial review by itself.
21. The relevant domestic law and practice has been summarized in the Court’s recent judgments in the cases of Raza v. Bulgaria (no. 31465/08, §§ 30-42, 11 February 2010) and M. and Others v. Bulgaria (no. 41416/08, §§ 45-53, 26 July 2011).
VIOLATED_ARTICLES: 13
8


ITEMID: 001-104851
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MALIKA ALIKHADZHIYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1968. She resides in the town of Shali, in the Chechen Republic. The applicant is the wife of Ruslanbek Alikhadzhiyev, born in 1963.
6. At the material time, the applicant and Ruslanbek Alikhadzhiyev resided at 97, Suvorova Street in Shali. Ruslanbek Alikhadzhiyev’s brother, Mr Ruslan Alikhadzhiyev, and his family resided at the same address.
7. Ruslanbek Alikhadzhiyev had not participated in illegal armed groups since the authorities launched the counter-terrorist operation in the Chechen Republic in 1999.
8. In May 2000 Ruslan Alikhadzhiyev, who had been the speaker of the Chechen Parliament (“the Parliament of the Chechen Republic of Ichkeria”) in 1997-99, was abducted from his house and disappeared (see Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007).
9. According to the applicant, Ruslan Alikhadzhiyev’s previous involvement in political activities and his ensuing disappearance provoked a heightened interest in their whole family on the part of the domestic authorities. In particular, members of the military commander’s office of the Shalinskiy District often came to their house, searched it and checked the family members’ identity papers.
10. Ruslanbek Alikhadzhiyev had a silver-grey Volga with licence plate no. A 577 BB 95. He had acquired it in 1995 from his relative, Kh.A., in exchange for another car.
11. Ruslanbek Alikhadzhiyev was about 170 cm tall.
12. On 20 April 2005 Ruslanbek Alikhadzhiyev drove his Volga to Gudermes to take a TV set to a repair shop. He gave a lift to Kh.A., who also needed to go to Gudermes. Ruslanbek Alikhadzhiyev was wearing black velvet trousers and a black shirt with white stripes.
13. It appears that at a certain moment Ruslanbek Alikhadzhiyev and Kh. A. parted and the former drove alone back to Shali.
14. At about noon on 20 April 2005 Ruslanbek Alikhadzhiyev’s car was stopped at the checkpoint of the Russian federal forces located at the intersection of the Kavkaz motorway and the Argun-Shali road, in the vicinity of the village of Mesker-Yurt. The checkpoint was located in the middle of a roundabout. The servicemen at the checkpoint always requested that the vehicles slowed down while passing through. Moreover, there were many holes in the road which also made the drivers slow down while they were passing the area.
15. At about noon on 20 April 2005 the minibus in which M.E. was going to Shali approached the above-mentioned checkpoint. From the minibus M.E. saw that a young man had stopped his silver-grey Volga at the checkpoint and was heading towards the hatch at which the servicemen usually registered the passing drivers. The man was wearing dark trousers and a dark shirt and was about 170 cm tall. A white Gazel vehicle was stationed at the checkpoint nearby. At the moment when the man approached the hatch to present his identity papers for registration, three servicemen rushed towards him. Two servicemen twisted his arms behind his back and the third serviceman handcuffed him. They then took the man inside the checkpoint which was surrounded by blocks and slabs made of concrete.
16. M.E. immediately wrote down the numbers on the Volga’s licence plate which he was able to see: 577 BB 95. He also asked the minibus driver to stop but the latter refused, saying that if he did so the servicemen could fire on them. According to M.E., his daughter and other passengers of the minibus witnessed the abduction of the man from the Volga.
17. At about noon the same day S.T., A.B. and S.M., who were driving from Grozny to Shali, approached the above-mentioned checkpoint. The three men were residents of Shali and personally knew Ruslanbek Alikhadzhiyev. They also knew that he had a silver-grey Volga and had seen Ruslanbek Alikhadzhiyev drive it on numerous occasions. When the car with the three men approached the checkpoint, they saw the silvergrey Volga, which S.M. immediately recognised as the vehicle belonging to Ruslanbek Alikhadzhiyev because he remembered its licence plate numbers. Immediately after that the three men saw two servicemen get inside Ruslanbek Alikhadzhiyev’s car. A red-haired serviceman who was about 165 cm tall took the driver’s seat. The second serviceman, who was taller and had a beer can in his hand, took the passenger seat. The three men also noticed an APC which was parked at the checkpoint. Having discussed what they had seen, the three men decided that, although the Volga looked like Ruslanbek Alikhadzhiyev’s car and S.M. claimed that it had the same licence plates, they must have been mistaken. They did not stop and drove on. Later in the evening they learnt that Ruslanbek Alikhadzhiyev had not returned home because he had been abducted at the checkpoint.
18. According to M.E., on the same day, having arrived in Shali, he went to the town centre where taxi drivers usually gathered. He asked them whether they knew to whom the car with the licence plate he had written down might belong. One of the drivers told him that it could have been owned by a certain resident of Mesker-Yurt. M.E. went to that village but did not find the car owner. He returned to Shali and continued enquiring about the owner of the Volga. According to Mr E., a boy told him that he knew the owners of the car. The boy immediately called somebody over the phone but was unable to obtain the necessary information. M.E. then gave him his address in Shali, so that the relatives of the abducted man could contact him. On the same evening the Alikhadzhiyevs came to visit M.E. and he told them about the incident he had witnessed at the checkpoint. From the conversation with the Alikhadzhiyevs, M.E. inferred that the abducted person was Ruslanbek Alikhadzhiyev.
19. According to the applicant, in the afternoon on 20 April 2005 she called her husband on his mobile phone but he did not answer. She waited for him until the evening and then sent her son to Kh.A. to ask for news of her husband. However, Kh.A. was absent and the applicant’s son returned home without any information.
20. Later the same evening the applicant learnt that Kh.A. had received a message from an acquaintance that servicemen at the MeskerYurt checkpoint had apprehended a person driving Kh.A.’s Volga. That person apparently did not know that Kh.A. and Ruslanbek Alikhadzhiyev had exchanged cars and that the Volga had been owned by the applicant’s husband since that time. Kh.A. went to see that man who subsequently turned out to be M.E. The latter described to Kh.A. in detail the circumstances of the Ruslanbek Alikhadzhiyev’s abduction. On an unspecified date the applicant met M.E. Having talked to him in person and heard his description of the abducted man, she concluded that the person abducted at the Mesker-Yurt checkpoint on 20 April 2005 had been her husband.
21. The applicant has had no news of Ruslanbek Alikhadzhiyev since 20 April 2005.
22. The above account of the events is based on the information contained in the applicant’s application form; the applicant’s written statement of 28 September 2007; a written statement by M.E. made on 19 June 2007; written statements by S.T. and A.B. made on 28 September 2007 and a written statement by S.M. made on 24 February 2010.
23. The Government did not challenge the facts, as presented by the applicant. They claimed that the domestic investigation into the disappearance of Ruslanbek Alikhadzhiyev had obtained no evidence that he had been abducted during a security operation.
24. On the night of 20 April 2005 the applicant contacted unspecified local authorities by phone and complained to them about the abduction of her husband.
25. On 21 April 2005 the applicant filed written complaints about the abduction of her husband with the prosecutor’s office and the local police. She submitted that she had not kept copies of those complaints.
26. Over the following days the applicant complained about Ruslanbek Alikhadzhiyev’s apprehension to various State authorities, seeking assistance in establishing his whereabouts, but did not receive any meaningful information in that respect.
27. On 24 August 2005 the Office of the President of the Chechen Republic replied to the applicant that they had examined her request for assistance in the search for Ruslanbek Alikhadzhiyev and had forwarded it to the prosecutor of the Chechen Republic.
28. By a letter of 29 August 2005 the prosecutor’s office of the Chechen Republic forwarded the applicant’s complaint about the abduction of her husband to the prosecutor’s office of the Shalinskiy District (“the district prosecutor’s office”).
29. On 12 October 2005 the district prosecutor’s office instituted a criminal investigation into the abduction of Ruslanbek Alikhadzhiyev under Article 126 of the Criminal Code (abduction). The case file was assigned the number 46130.
30. On 31 October 2005 the district prosecutor’s office granted the applicant victim status in the proceedings in case no. 46130. The applicant was notified of the decision on the same day. The decision stated, among other things, that on 20 April 2005 Ruslanbek Alikhadzhiyev had driven to Gudermes in his Volga GAZ-31105, licence plate no. A 577 BB 95, in order to take a TV set to a repair shop. When he was returning back to Shali, unidentified armed persons in camouflage uniforms driving a beige Gazel had stopped his car on a roundabout in the vicinity of Mesker-Yurt. They had abducted Ruslanbek Alikhadzhiyev and taken him to an unknown destination.
31. It appears that on an unspecified date the investigation in case no. 46130 was suspended. There is no indication that the applicant was informed of that decision.
32. By a letter of 7 February 2006 the district prosecutor’s office informed the applicant that on an unspecified date it had resumed the investigation in case no. 46130 and that operational and search measures aimed at establishing Ruslanbek Alikhadzhiyev’s whereabouts and identifying the perpetrators were under way.
33. On 2 July 2007 the applicant complained to the district prosecutor’s office that the investigation into the abduction of her husband had yielded no results. She requested that the investigation be resumed if it had been suspended and sought access to the case file and permission to make copies from it in order to have sufficient information for challenging before the courts the decision to suspend the investigation.
34. On 17 July 2007 the district prosecutor’s office replied to the applicant saying that it had taken all investigative steps which could have been taken in the absence of there being anyone to be charged with the abduction of Ruslanbek Alikhadzhiyev and that it thus found no grounds to resume the investigation. As regards the applicant’s request for access to the case file, she would be provided access to the documents drawn up with her participation.
35. Despite the Court’s specific requests, the Government failed to produce most of the documents from criminal case file no. 46130, furnishing only copies of the decisions to open, some of the decisions to suspend and resume the investigation, several witness statements and the investigating authority’s requests for information to various State bodies on the missing man’s whereabouts or his possible arrest or detention and some of their replies to them. The Government did not provide any explanation for their failure to comply with the Court’s request. Some of the documents submitted by the Government were legible only in part. The information contained in those documents may be summarised as follows.
36. When giving notice of the present application to the respondent Government, the Court specifically requested them to provide copies of the applicant’s complaints about the abduction of her husband, which had prompted the opening of the investigation. In their observations the Government stated that the district prosecutor’s office had received the applicant’s complaint about the abduction of her husband on 21 September 2005, without providing any further information. The bulk of the documents submitted by them contained several documents which appear to be relevant to the matter and can be summarised as follows.
37. From the documents disclosed by the Government it can be seen that on 1 August 2005 the applicant complained about the abduction of her husband to the Ombudsman of the Russian Federation and that on an unspecified date in August 2005 her further complaint about his abduction was received by the President of the Chechen Republic. In both applications the applicant submitted that she had previously complained about the kidnapping of Ruslanbek Alikhadzhiyev to a number of State authorities, including the Shalinskiy District Department of the Interior (ROVD) and the Khankala Department of the Interior, but those authorities had disregarded her submissions.
38. By a decision of 8 September 2005 a prosecutor of the district prosecutor’s office extended for ten days the time-limit for the preliminary examination of the applicant’s complaint about the abduction of her husband. The decision stated that the prosecutor had received the applicant’s complaint about the abduction of her husband on 8 September 2005.
39. The Government also provided a copy of the applicant’s complaint to the Shalinskiy ROVD about the abduction of Ruslanbek Alikhadzhiyev, dated 20 September 2005.
40. On 12 October 2005 the district prosecutor’s office instituted an investigation into the abduction of Ruslanbek Alikhadzhiyev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The decision stated, among other things, that on 20 April 2005 Ruslanbek Alikhadzhiyev had gone in his Volga, licence plate no. A 577 BB 95, to Gudermes to take his TV to a repair centre. On the same day, while Ruslanbek Alikhadzhiyev was driving from Gudermes to the town of Shali, unidentified armed persons in camouflage uniforms, who had been driving a beige Gazel, had stopped his car at the roundabout near Mesker-Yurt, had arrested him and taken him to an unknown destination.
41. On 28 August 2005 the investigators interviewed A.S. as a witness. He stated that on 20 April 2005 he had learnt that on the same day Ruslanbek Alikhadzhiyev had been abducted by members of the security forces at the checkpoint near Mesker-Yurt. In particular, armed men who had introduced themselves as officers of the Federal Security Service (“the FSB”) had stopped his car at the checkpoint, put him into their white armoured Gazel and taken him in the direction of Grozny. They had also taken Ruslanbek Alikhadzhiyev’s car with them. The arrest had been carried out in the presence of servicemen of the checkpoint.
42. L.Z., who was interviewed on 28 August 2005, submitted that she had learnt of the abduction of Ruslanbek Alikhadzhiyev at the checkpoint near Mesker-Yurt from A.S. and confirmed his account of the events.
43. On 2 September 2005 the investigators interviewed A.O. as a witness. He stated that in April 2005 he had been stationed in the Chechen Republic and that on 20 April 2005 he had been on duty at checkpoint no. 112 at the intersection of the roads between Shali and Mesker-Yurt. At about 9 a.m. a beige Gazel had arrived at the checkpoint; A.O. did not remember the figures on its licence plate. Five armed persons in camouflage uniforms had emerged from the vehicle. They had been Russians; one of them had had an Asian appearance. They had introduced themselves as officials of the FSB and asked for assistance in arresting a man driving a Volga. At about 1 p.m. O.A. had stopped the vehicle which interested the men, checked the driver’s papers and sent the driver to the registration point at the checkpoint. A.O. could not remember the man’s name but would have been able to identify him. While the man had been heading to the registration point, the FSB officers had approached him and asked him to follow them to the Gazel. The man had got into their car and they had got inside it after him. One of the FSB officers had got into the man’s Volga and both vehicles had driven off in the direction of Grozny. The convoy had been followed by a white VAZ-21093 vehicle, also driven by an FSB officer. A.O. had not asked the FSB officers why they were arresting the man in the Volga.
44. On 14 September 2005 the investigators interviewed S.B. as a witness. He stated that he had been stationed in the Chechen Republic since March 2005 and that in April 2005 he had been on duty, together with other servicemen from his unit, at the intersection of the roads between Shali, Mesker-Yurt and Grozny. At about 9 a.m. on 20 April 2005 a beige Gazel had arrived at the checkpoint and two men had emerged from it. They had introduced themselves as FSB officers and had produced the relevant certificates indicating that they had been serving in Khankala. They had also said that they were there to arrest a certain person but that they did not know when exactly he would appear and that that information was to be communicated to them over the phone. Having spent a day at the checkpoint they had left in the direction of Khankala.
45. On 20 September 2005 the investigators interviewed the applicant as a witness. She stated that on the evening of 20 April 2005 a woman had told her that armed men in camouflage uniforms had abducted her husband at the checkpoint near Mesker-Yurt. On that day he had gone to Gudermes to take a TV set to a repair shop. While returning to Shali, he had been stopped at the checkpoint near Mesker-Yurt. There, while on his way to the registration point, FSB officers from Khankala had arrested him, put him into their white Gazel and driven off in the direction of Grozny. Servicemen at the checkpoint had witnessed the arrest. After the abduction the applicant had applied to the Department of the Interior in Khankala but had received no reply from that authority.
46. On 31 October 2005 the applicant was granted victim status in the proceedings in case no. 46130. While being interviewed on the same date, she confirmed her account of the events given on 20 September 2005.
47. On 7 November 2005 the investigators interviewed M.E. as a witness. He submitted that on 20 April 2005 he had been going in a minibus to Shali. At the checkpoint in Mesker-Yurt he had noticed a man who was standing near a Volga with licence plate no. A 577 BB 95. The man had been approached by three persons in camouflage uniforms. They had twisted his arms and had led him to a light-coloured armoured Gazel, parked nearby and put him inside it. M.E. had not seen what had occurred afterwards because the driver of the minibus had told him that he could not stop at the checkpoint. However, M.E. had written down the licence plate number of the Volga in order to tell the man’s relatives of his arrest, should he find them. Once he had arrived in Shali, M.E. had approached taxi drivers and asked them if they knew who the owner of the vehicle was. They had promised him to ask further and had taken his telephone number and his home address. On the same evening the Alikhadzhiyevs had come to his house and he had told them about what he had seen at the checkpoint. One of the women had told M.E. that she was the arrested person’s wife.
48. L.Z., interviewed as a witness on 7 November 2005, stated that she had learnt of the abduction of Ruslanbek Alikhadzhiyev from his relatives on the evening of 20 April 2005.
49. On 8 February 2006 the investigators interviewed A.U. as a witness. He stated that he occupied the post of the deputy head of the Shalinskiy Department of the Interior (“the Shalinskiy ROVD”) and that on 20 September 2005 he had examined the ROVD materials concerning the abduction of Ruslanbek Alikhadzhiyev at the checkpoint in Mesker-Yurt. It followed from those materials and, in particular, the statements of the servicemen who had been on duty at the checkpoint, that the men who had arrested Ruslanbek Alikhadzhiyev had introduced themselves as FSB officers from Khankala. A.U. had subsequently sent all the materials to the district prosecutor’s office.
50. I.M. and S.M., interviewed as witnesses on 15 and 16 February 2006, stated that they had learnt of the abduction of Ruslanbek Alikhadzhiyev from his relatives.
51. On 22 April 2006 the investigators interviewed Zh.Kh. as a witness. He stated that on 20 April 2005 he had been in command of the unit of the Shalinskiy ROVD who had been on duty at the checkpoint near MeskerYurt and that his unit also included servicemen A. and V. The duties of the servicemen from his unit included checking the persons, vehicles and cargo passing through the checkpoint and securing public order in the area. A unit of servicemen of the Special Police Force from Primorsk (“the OMON unit”) was also in charge of the checkpoint together with Zh.Kh.’s unit. At about 9 a.m. on 20 April 2005 a white Gazel had arrived at the checkpoint. Zh.Kh. had not memorised its licence plate numbers. Three heavily built armed men in camouflage uniforms had emerged from the vehicle. They had been aged 35 to 40; one of them had had a beard. One of them had entered the registration point. At about noon Zh.Kh. had left for lunch. When he had returned, the OMON officers had told him that the armed men had produced identification to show that they were FSB officers and had arrested at the checkpoint a driver of a Volga whom they had put into their Gazel. One of the FSB officers had got inside the Volga and the two vehicles had left.
52. U.V., interviewed on 24 April 2006 gave an account of the events identical to that of Zh.Kh.
53. While being interviewed on 29 April 2006, the applicant confirmed her account of the events concerning the abduction of her husband and stated that at the end of the year 2005 a certain M.Z. had told the mother of Ruslanbek Alikhadzhiyev that the latter was in Khankala “in a very bad state”. The applicant had not met M.Z., had not known where he lived and he had contacted only her husband’s mother, who had died in February 2006.
54. On 5 May 2006 the investigators interviewed Z.A. as a witness. She stated that she had learnt of the circumstances of the abduction of Ruslanbek Alikhadzhiyev from residents of Shali who had passed by the checkpoint near Mesker-Yurt.
55. Between 12 September and 27 November 2005 the investigators requested a number of State authorities, including the FSB, the Ministry of the Interior, the United Group Alignment (“the UGA”) and prosecutor’s offices of various districts in the Chechen Republic to provide information on Ruslanbek Alikhadzhiyev’s whereabouts, his possible arrest by those State authorities or any special operations conducted with a view to arresting him. It appears that no relevant information was obtained in reply.
56. On 27 November 2005 the UGA informed the district prosecutor’s office that from the information received by them from the Special Forces Department of the Temporary Operational Group of the Ministry of the Interior in the Northern Caucasus it followed that at about 1 p.m. on 20 April 2005 FSB officers had arrested Ruslanbek Alikhadzhiyev at checkpoint no. 112 near Mesker-Yurt with a view to verifying his possible involvement in illegal armed groups and had taken him away in his Gaz3105 vehicle, licence plate no. A 577 BB 95 Rus. The letter also stated that Ruslanbek Alikhadzhiyev was the brother of a rebel warlord Ruslan Alikhadzhiyev.
57. On 16 November 2005 the Chechen Department of the FSB informed the investigators that the FSB Operational Bureau located in Khankala had been closed down on an unspecified date and that the former authority could not provide them with the information requested.
58. On 12 December 2005 the investigation in case no. 46130 was suspended owing to the failure to identify the perpetrators.
59. On 24 January 2006 the deputy prosecutor of the Chechen Republic set aside the decision of 12 December 2005 as unfounded and premature. The decision stated, among other things, that the investigators had failed to interview the head of the Shalniskiy ROVD A.U., who had stated in his letter of 12 September 2005 that Ruslanbek Alikhadzhiyev had been arrested on 20 April 2005 at the checkpoint in Mesker-Yurt by FSB officers from Khankala. Moreover, the investigators had not interviewed a certain Z.Kh., from whose explanations it followed that Ruslanbek Alikhadzhiyev had been arrested by FSB officers. They had likewise failed to interview all relatives and neighbours of Ruslanbek Alikhadzhiyev, with whom he could have been staying.
60. On 7 March 2006 the investigation was suspended owing to the failure to identify those responsible for the abduction.
61. On 27 March 2006 the prosecutor of the Shalinskiy District set aside the decision of 7 March 2006 as premature and unfounded and ordered that the investigation be resumed.
62. On 27 April 2006 the investigation in case no. 46130 was suspended owing to the failure to identify the persons implicated in the abduction of the applicant’s husband.
63. On 13 October 2009 the investigation in case no. 46130 was resumed and unspecified instructions were given to the investigators with a view to identifying the perpetrators.
64. According to the Government, the investigation in case no. 46130 is still pending.
65. On 27 June 2006 the Shali Town Court of the Chechen Republic granted the applicant’s claim and declared Ruslanbek Alikhadzhiyev a missing person. The judgment became final on 7 July 2006.
66. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-97208
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOZTAS AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Aygün, a lawyer practising in Tunceli.
On 8 March 2004, at around 10.30 p.m., Imam Boztaş was gunned down by two persons in front of his house in Alanyazı village at Mazgirt district of Tunceli. His mother and to some extent one of his daughters were witnesses to the killing.
On the same night, at around midnight, gendarmes at the Bulgurcular Gendarmerie Command, including its commander Mr A.K., arrived at the scene.
On the same night, at around 1 a.m., four gendarmes working as technical personnel at the Tunceli Provincial Gendarmerie Command arrived at the scene with the Mazgirt public prosecutor, gendarmes from the Mazgirt District gendarmerie and a doctor. The technical personnel made a sketch of the scene of the incident, took photographs and secured forensic evidence around the scene. The technical personnel considered that the empty cartridges found at the scene belonged to a 7.62 mm Kalashnikov. The doctor carried out a post-mortem examination on Imam Boztaş’s body and concluded that an autopsy had to be carried out to determine the cause of death.
On the same night, the Mazgirt public prosecutor heard evidence from Imam Boztaş’s parents (Hıdır and Fidan Boztaş), his wife (Derman Boztaş) and a fellow villager. They submitted, inter alia, that they did not know who had committed the murder, that the deceased had previously been convicted of membership of an illegal organisation, namely TIKKO (Turkish Workers and Peasants’ Liberation Army) and that he had returned to the village only recently.
On 9 March 2004 an autopsy was carried out on Imam Boztaş’s body. The cause of his death was stated as internal bleeding and cerebral haemorrhage due to gunshot wounds.
On 9 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş’s parents (Hıdır and Fidan Boztaş) and daughters (Ender and Eylem Boztaş) who all affirmed that the deceased had been threatened by the Bulgurcular Gendarmerie Commander. Fidan Boztaş and Eylem Boztaş maintained that the perpetrators were wearing masks and military-type clothes. On the same day Imam Boztaş’s parents made an official complaint to the Mazgirt public prosecutor’s office.
On 15 March 2004 the Mazgirt public prosecutor heard evidence from Imam Boztaş’s father (Hıdır Boztaş), brother (Hasan Boztaş), his wife (Derman Boztaş) and sister (Nimet Çiçek). They all repeated that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and had been away from the village for three months prior to his death.
On the same day eleven of the applicants (“the complainants”) made an official complaint to the Mazgirt public prosecutor’s office. In this they repeated that that, a few months prior to his death, Imam Boztaş had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, Imam Boztaş had left the village for three months. In this connection, they claimed that this commander was known by the villagers for illegal and harassing activities. Moreover, they noted that it took the security forces from the Bulgurcular gendarmerie command two hours after the incident to reach the village, which was only one and a half kilometres away.
On the same day the Mazgirt public prosecutor heard evidence from the head of the village (muhtar). The head of the village submitted that neither the deceased nor his family had, prior to the killing, voiced or submitted any representation regarding the alleged threats received by Imam Boztaş. He further submitted that after the shooting one of the villagers called the gendarmerie around 11 or 11.30 p.m., and that the gendarmes arrived in the village around midnight or 12.30 a.m.
On 15 March 2004 the Mazgirt public prosecutor postponed the on-site inspection requested by the applicants until other evidence had been gathered. He further decided that a copy of the documents contained in the case file should be handed over to the complainants’ legal representative.
On 16 March 2004 the Mazgirt public prosecutor heard evidence from a gendarme on duty at the Bulgurcular Gendarmerie Command at the time of the events. The gendarme confirmed that they had received a telephone call at 11 p.m., that they had left the station at around 11.30 p.m. and that, due to incidents of terrorism, they had walked through fields rather than using the main road to reach the village.
On the same day, the Mazgirt public prosecutor heard evidence from Mr A.K., the Bulgurcular Gendarmerie Commander, who denied the allegations against him. In particular, he submitted that the gendarmes had not been to the village since December 2003, that they did not have any vehicles and that they used G3 and MG3 guns. The accused maintained that the deceased had come to the gendarmerie around September/October to ask for their help in obtaining a green card. He further maintained that the deceased might have been killed by the sons of a person killed in 1995 and for which killing certain people held the deceased responsible.
On 17 March 2004 the Van provincial criminal police laboratory carried out a ballistic examination of the cartridges found at the incident scene.
According to an examination of the deceased’s clothes conducted by three experts at the Van Regional Criminal Laboratory on 25 March 2004 the deceased had received sixteen shots at close range and the bullets had entered from the front and exited from his back.
On 7 April 2004 the Human Rights Association wrote a report regarding the killing of Imam Boztaş. In this report, they pointed to a number of issues which they considered needed to be elucidated in the present case.
On 25 August 2005 the Mazgirt public prosecutor, relying on the forensic and other evidence in the case file including numerous witness statements, decided not to prosecute Mr A.K., the Bulgurcular Gendarmerie Commander, on the ground that there was no cogent evidence to support the allegation that he had abused his office, threatened or killed the deceased. In his elaborated decision the prosecutor examined in particular the issues raised by the applicants and referred to in the Human Rights Association’s report. The prosecutor noted, inter alia, that there were certain inconsistencies in the eyewitness accounts of Fidan Boztaş and Eylem Boztaş as regards the number of assassins and the type of clothes they were wearing, so that even assuming that the alleged perpetrators were dressed in military clothing, this did not in itself prove that the assailants were soldiers, since such clothing was freely available in the shops and, citing some previous incidents, members of terrorist organisations also wore such garments.
The prosecutor examined the applicants’ allegations of negligence on account of the belated arrival of the gendarmes from the Bulgurcular Gendarmerie Command. In this connection, referring to witness statements and information received from the Turkcell Telephone Company, the prosecutor noted, inter alia, that the gendarmes were informed approximately one hour after the incident, that it took them around half an hour to cross-check the information and to prepare to leave the gendarmerie and that they arrived half an hour after walking approximately 4-5 km on foot through fields, for security reasons, under adverse weather conditions. He therefore concluded that there was no intentional belated arrival at the scene of the incident.
As regards the allegations that the deceased had been threatened by the Bulgurcular Gendarmerie Commander and that, as a result, the deceased had left the village for three months, the prosecutor, after noting serious inconsistencies and contradictions in the various witness statements and the absence of an official complaint to this effect, held that there was no cogent evidence to demonstrate that the deceased had been threatened by the commander. In this connection, the prosecutor also examined the allegations that the commander was threatening others and found them to be unsubstantiated on the same grounds.
Finally, the prosecutor noted, inter alia, that there was strong evidence that Imam Boztaş had been killed by a branch of TIKKO, namely the MKP, on account of a document found on four members of the MKP (Maoist Communist Party), who were killed by security forces during a clash on 26 October 2004 and which implicated the MKP in the killing of the deceased.
On 28 September 2005 the Erzincan Assize Court dismissed the complainants’ objections.


ITEMID: 001-82909
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KARI UOTI v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1962 and lives in Helsinki.
7. On 7 September 1995 the applicant was questioned by the police about suspected fraud. In autumn 1997 he was charged with several offences. The trial before the Helsinki District Court (käräjäoikeus, tingsrätten) involved 47 days of hearings. The applicant was represented by the same counsel throughout the District Court proceedings and at all subsequent court levels. The court received testimony from the defendants, the complainants and over 40 witnesses. On 29 May and 10 June 1998 the prosecution presented documentary evidence, including some documents drawn up by a Mr G., who was working off-shore for a bank and who, in answer to a letter rogatory sent by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) to the Guernsey authorities, had produced documents (including “notes for archives” pertaining to meetings on 3 and 22 June 1993 and charts) related to a plan to transfer funds.
8. On 29 January 1999 the applicant was convicted of three counts of dishonesty as a debtor and four counts of aggravated tax fraud. He was sentenced to four years' imprisonment. The District Court judgment ran to 163 pages. In short and in so far as relevant, the court found on the basis of, inter alia, the testimonies of J.S., S., the applicant and his brother and the documentary material, including the documents obtained from the Guernsey authorities, that the applicant and his brother had discussed the planned transfers of assets with G. It also found that the documentary evidence pertaining to the off-shore companies and the transfer of moneys proved that the assets acquired from the sale of the “bank group I.” had been transferred via companies specified in G.'s charts to trusts, the beneficiaries of which the brothers had appointed. As both brothers had been present during the negotiations with G. on 3 June 1993 and the plan to transfer funds had been proved to have materialised, the court found that they had acted together in, inter alia, removing the funds from Finland.
9. The public prosecutor appealed insofar as the charges had been dismissed and introduced alternative charges of aiding and abetting accounting offences. The applicant appealed against the conviction and requested an oral hearing. In particular, he requested that G., resident in Guernsey, be heard as a witness either in the Helsinki Court of Appeal (hovioikeus, hovrätten) or by executive assistance abroad if the court was not satisfied that the account of a witness S. was sufficient evidence as regards the value and content of the documents drawn up by G. In the Court of Appeal the applicant's case was open for review in respect of all counts. In the applicant's view, G.'s testimony was relevant to several counts.
10. On 11 October 2000 the applicant renewed his request that the court hear evidence from G. In its decisions of 23 and 24 October 2000 the Court of Appeal refused, as being unnecessary, to receive oral evidence from G. It stated that it would provide further reasons in its judgment.
11. On 31 October 2000 the court held a preparatory hearing. The applicant unsuccessfully renewed his submission that it was necessary to hear G. as a witness.
12. The first hearing took place on 8 November 2000. The parties and altogether 22 witnesses gave oral evidence, of whom three were fresh witnesses. The hearing of 27 other proposed witnesses had been rejected.
13. On 30 March 2001 the Court of Appeal pronounced judgment. In addition to the convictions imposed by the District Court, it convicted the applicant of four counts of dishonesty as a debtor and of five counts of aiding and abetting an accounting offence. He was sentenced to six years' imprisonment and ordered to be detained immediately. He also lost his military rank.
14. As regarded the reasons for not hearing G. as a witness, the court held, inter alia, that:
“The Court of Appeal notes that no request to hear G. as a witness was made in the District Court although the documents relating to the plan to transfer moneys from the “bank group I.” had been presented at the hearings of 29 May and 10 June 1998 ... Also [the applicant] relied as written evidence on [some] documents drawn up by G. without requesting that G. be heard as a witness ...
The documents allegedly drawn up by G. have not been drawn up for the purposes of the pending proceedings. The import of the documents can be assessed without hearing him as a witness. The question whether it is necessary to hear him as a witness depends solely on whether such a hearing could produce relevant new information. In assessing this question the Court of Appeal takes into account the fact that in the District Court G. was not proposed as a witness and the fact that the parties have been provided with an opportunity to put forward all their opinions concerning the content and reliability of the documents during the trial.
The Court of Appeal notes that the documents in question have been requested by the public prosecutor and the National Bureau of Investigation by sending letters rogatory to the Guernsey authorities. The Court of Appeal does not have any reason to suspect that the documents were drawn up by someone other than G. ...
The documents clearly indicate that there has been a deliberate conspiracy to transfer the assets acquired from the sale of the “bank group I.” to companies established abroad and to invest the moneys. The transfer of assets has been conducted, as later explained in detail in chapter 6.2.2, by order of ... [the applicant and his co-accused brother]. The question of whether G. himself thought that he was involved only in legal investment activities is therefore not relevant.
The documents drawn up by G. are however relevant in assessing ... [the applicant's and his co-accused brother's] possible guilt of the offence of dishonesty as a debtor ... As becomes manifest in the reasons given in considering the charges, the Court of Appeal has however not decided the matter basing itself entirely on the documents in question. The court has instead assessed the value of the documents in an overall context, [in Finnish kokonaisyhteydessä] in which G. cannot have anything relevant to say.
The Court of Appeal has heard witness S., as requested ... about the events relating to the documents. The testimony of S., which in [the applicant's] opinion proves the content of the discussions with G., has thus been taken into account ... The Court of Appeal holds that the requirements of a fair trial do not require that G. be heard as a witness either.”
15. The Court of Appeal judgment ran to 325 pages. In so far as relevant, the court principally endorsed the District Court's evaluation of the evidence.
16. The applicant sought leave to appeal. On 5 December 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
17. If an item of evidence that a party wishes to present pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may refuse to admit it (Chapter 17, Article 7 (as amended by Act no. 571/1948) of the Code of Judicial Procedure).
18. Chapter 17, Article 11 of the Code of Judicial Procedure, as in force at the relevant time, provided that a written statement drawn up for a pending or imminent trial, could not be used as evidence, unless specifically provided for by law or unless the court so decided for particular reasons.
19. Chapter 26, Article 7 of the Code of Judicial Procedure (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal was to hold an oral hearing when necessary. Chapter 26, Article 8 (as amended by Act no. 661/1978), as in force at the relevant time, provided that the Court of Appeal could not change a lower court's conviction based on the evaluation of evidence without holding an oral hearing, unless the case concerned an offence punishable by fines only or unless an oral hearing was manifestly unnecessary, in particular taking into account the defendant's need for legal protection.
20. The provisions concerning the Court of Appeal's duty to hold an oral hearing were amended (Act no. 165/1998) with effect from 1 May 1998. The new provisions did not apply to criminal proceedings which had commenced prior to the entry into force of the new Code on Criminal Procedure (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997; in force from 1 October 1997). The afore-mentioned former provisions applied therefore to the instant case. The new Chapter 26, Article 15 (Act no. 165/1998) provides that the Court of Appeal is to hold a hearing, regardless of whether one has been requested, if the decision in the matter turns on the credibility of the testimony received in the District Court or on new testimony to be received in the Court of Appeal. In this event, the evidence admitted in the District Court proceedings is to be readmitted in the principal hearing, unless there is an impediment to this.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-d