ITEMID: 001-6021
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: RUDAN v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Milić, Mileva and Mirko Rudan, are Croatian citizens, born in 1921, 1928 and 1955, respectively and living in Zagreb. They are represented before the Court by Mr Milutin Ostoić, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Krajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1986 the first applicant acquired a specially protected tenancy on a flat in Zagreb; the second and third applicants are his wife and son. They all lived together in the flat in question. On 24 August 1992, while the applicants were absent from Zagreb, three members of the Croatian Army broke the door and occupied the flat.
On 25 August 1992 the third applicant instituted proceedings with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking reinstatement and interim measures so as to obtain the keys of the new lock for the flat’s main entrance and to evict the defendants from the flat. On 25 August 1992 the court ordered interim measures as requested by the third applicant. On 22 September the same court decided in accordance with the third applicant’s claims.
In the meantime, on 26 August 1992, the Ministry of Defence (Ministarstvo Obrane Republike Hrvatske) granted temporary possession of the flat in question to A. (although that person was already deceased) and to his wife R. The first and third applicants challenged that decision and on 18 February 1993 the Administrative Court (Upravni sud Republike Hrvatske) quashed the Ministry’s decision on the merits.
Meanwhile R. had occupied the flat. Upon the third applicant’s request the Municipal Court ordered R. to vacate the premises on 3 September 1992. As R. did not comply with the court’s order, the first and third applicants sought, and on 1 October 1992 obtained, a decision on the judicial enforcement of the court’s decision (rješenje o izvršenju). R. filed a motion to object that decision, but her motion was denied on 28 December 1999. In addition The Trnje Welfare Centre (Centar za socijalni rad Trnje), as well as the Ministry of Defence, filed motions for an order staying the execution, which were denied on 18 October 1993. Subsequent attempts to evict R. from the flat by the court’s officials remained unsuccessful due to the presence of armed persons dressed in Croatian Army uniforms, inside and around the flat, opposing the eviction.
R. occupied the flat until April 1994 when she moved out without informing the applicants or the Zagreb Municipal Court, and at the same time Z., a member of the Croatian military police, moved in. Some days later the applicants’ possessions from the flat were removed by persons dressed in Croatian Army uniforms using military trucks. On 20 August 1994 the Ministry of Defence granted temporary possession of the flat to Z.
The applicants did not appeal against that decision.
On 6 September 1993 the Office of State Counsel (Javno pravobraniteljstvo) instituted proceedings against the first applicant in the Zagreb Municipal Court requesting the termination of his specially protected tenancy on the flat in question, alleging that he had not occupied the flat for over six months. The Court considered the first applicant’s address to be unknown and appointed a legal representative for him (staratelj za poseban slučaj).
On 30 November 1993 the Municipal Court terminated the first applicant’s specially protected tenancy accepting the claim that he and his family had not occupied the flat for longer than six months without a justified reason. Thus, the first applicant lost all his rights regarding the flat in question. Upon the representative’s appeal the Zagreb County Court (Županijski sud u Gradu Zagrebu) on 9 August 1994 upheld the first instance decision confirming the reasoning of the Zagreb Municipal Court.
The first applicant was not notified of those decisions, but only his legal representative, who was unknown to him. It appears that on 23 July 1996 an attorney, whom the applicants claim was unknown to them, filed an application to return the proceedings to the status quo ante (prijedlog za povrat u prijašnje stanje) with the Zagreb Municipal Court.
On 6 February 1997 the first and second applicants filed an application for the re-opening of the proceedings (prijedlog za ponavljanje postupka) with the Zagreb Municipal Court, on the basis that the legal representative appointed in the proceedings concerning the termination of the first applicant’s specially protected tenancy was not aware of the facts that might have been decisive for the outcome of the proceedings such as the fact that the Administrative Court had quashed the Ministry of Defence decision to grant temporary possession of the flat to a third person.
On 9 July 1997 the Zagreb Municipal Court rejected the application to return the proceedings to the status quo ante as having being lodged out of time. On 14 July 1997 the Municipal Court rejected the first and second applicants’ application for the re-opening of the proceedings for the same reason. It appears that on 19 July 1997 the first and the second applicants appealed against the decision concerning the re-opening of the proceedings.
On 19 November 1997 the first and second applicants requested the speeding-up of the proceedings.
On 2 February 1998 the case file was transferred to the Zagreb County Court it being the appellate court.
On 29 April 1998 the first and second applicants again requested the speeding-up of the proceedings.
On 12 May 1998 the Zagreb County Court remitted the case to the Zagreb Municipal Court, without deciding upon the applicants’ appeal. The County Court instructed the Municipal Court to hold a hearing so as to obtain information relevant for reaching the decision upon the first and second applicants’ appeal.
On 27 June 1998 the first and second applicants requested for the third time the speeding-up of the proceedings.
On 21 December 1998 the Zagreb Municipal Court held a hearing. At that hearing the first and third applicants gave their testimonies as to whether a legal representative who lodged the application to return the proceedings to the status quo ante was given a power of attorney by them.
At the next hearing, which took place on 14 January 1999, the second applicant gave testimony in respect of the same question.
On 14 January 1999 the Zagreb Municipal Court sent the case file to the Zagreb County Court.
On 17 March 1999 the case was again remitted to the Zagreb Municipal Court in order to obtain its explanation in regard of the applicants’ objection to the written minutes of the hearing of 9 July 1997. Furthermore, the court of first instance was requested to enclose a copy of its decision of 14 July 1997 and a copy of the first and second applicants’ appeal against that decision.
On 29 February 2000 the Zagreb County Court quashed the Zagreb Municipal Court’s decisions of 9 July and 14 July 1997 and remitted the case to the court of first instance.
On 15 January 2001 the Zagreb Municipal Court dismissed the application to return the proceeding to the status quo ante as it had been submitted by a representative without a power of attorney. It also dismissed the first and second applicants’ application for the re-opening of the proceedings, again as having been lodged out of time.
On 8 February 2001 the first and second applicants appealed against the Municipal Court’s decision concerning their request for the re-opening of the proceedings. It appears that the cases are presently pending before the Zagreb County Court.


ITEMID: 001-104885
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TIMOSHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: The applicant, Mr Yevgeniy Viktorovich Timoshin, is a Russian national who was born in 1967 and is currently serving his sentence in Revda in the Murmansk Region. The respondent Government are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 May 2004 the Moscow Regional Court in a jury trial convicted the applicant of a number of serious criminal offences, including two counts of murder, attempted murder and robbery, and sentenced him to twenty-two years’ imprisonment and a fine in the amount of 2,500 roubles (RUB). During the trial the applicant, represented by a lawyer of his own choosing, protested his innocence.
On 26 May 2006 he lodged an appeal before the Supreme Court of the Russian Federation (“Supreme Court”). He also made a special request to ensure his participation, as well as the participation of his counsel, in the appeal hearing.
On 6 October 2004 the Supreme Court held an appeal hearing in which the applicant took part by videoconference. His lawyer did not appear. The public prosecutor was present and made his oral submissions. By the judgment of the same date, the Supreme Court of Russia upheld the applicant’s conviction and sentence.
On 6 October 2010, on request by the Deputy Prosecutor General, the Presidium of the Supreme Court, by way of supervisory review proceedings, quashed the judgment of 6 October 2004 on the ground that the applicant’s right to legal assistance had been infringed and remitted the case for a fresh examination before the appellate court.
On 30 November 2010 the Supreme Court held a fresh appeal hearing. The applicant participated in the hearing by video link. At the beginning of the hearing, the court introduced the applicant to Mr R., a court-appointed counsel who was present in the Supreme Court’s courtroom. The applicant asked the court to provide him with an opportunity to discuss confidentially the strategy of his defence with counsel by means of video link. His request was granted. The court then proceeded with the examination of the applicant’s appeal. It studied the case file and heard oral submissions by the applicant, his representative and the public prosecutor. Mr R., in particular, pointed to numerous procedural violations, and asked to quash the judgment of 18 May 2004 and remit the applicant’s case to the trial court for the fresh examination. By the judgment of the same date, the Supreme Court upheld the applicant’s conviction and reduced his sentence to twenty years’ imprisonment. According to the court record, the applicant had neither objections nor comments as regards the conduct of the proceedings.


ITEMID: 001-4732
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: FARAH v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Tunisian national born in 1966. He is represented before the Court by Mr Carl-Gustaf Elwe, Karlskoga.
The applicant met M, a Finnish citizen, in Tunisia in 1984. In January 1985 their first daughter was born in Finland. The applicant went to Finland in the autumn of 1986 and married M. As he had been sentenced to three years’ imprisonment and expulsion by a Danish court in 1984, his application for a residence permit in Finland was refused, however. He was expelled in March 1987. M and the daughter followed the applicant to Tunisia but returned to Finland some months later. Later, the applicant was granted a visa to enter Finland. He arrived in October 1987. As he was unable to find employment in Finland, the family decided to move to Sweden. M was later granted a permanent residence permit in that country.
The family arrived in Sweden in March 1988. After the applicant had been refused a residence permit, he returned to Tunisia on 1 July 1988 and applied anew for a residence permit. M and the daughter joined him in Tunisia for a month in the late summer. In September 1988 the applicant was granted a permit to reside in Sweden for six months, and so the family returned to Sweden. The applicant’s permit was renewed for six months at a time until he was granted a permanent residence permit in 1990. In August 1990 the applicant’s and M’s son was born. In January 1993 they had a second daughter.
The applicant had started using hash and in April 1993 he sought treatment for his drug problems. In June 1993 the applicant and M were detained on remand, suspected of narcotics offences. On 20 October 1993 the District Court (tingsrätten) of Handen convicted the couple - and a few co-accused - of the offences and sentenced them to imprisonment, the applicant for ten years and M for two years. Upon appeal, the Svea Court of Appeal (Svea hovrätt) acquitted the applicant of some of the charges. However, by a judgment of 5 January 1994 he was found guilty of an aggravated narcotics offence involving 300 grams of heroin and of smuggling of goods. He was sentenced to six years in prison. In addition, the court ordered his expulsion from Sweden in accordance with Chapter 4, Section 7 of the Aliens Act (Utlänningslagen, 1989:529) and issued a prohibition on his return. Having regard to his family connections to Sweden, this prohibition was limited to ten years, i.e. until 5 January 2004. M’s involvement in the offence was considered to be less serious, and her sentence was accordingly reduced to ten months’ imprisonment. The Supreme Court later refused leave to appeal against the Court of Appeal’s judgment.
In April 1997 the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. By a decision of 5 June 1997 the Government rejected the request.
On 5 June 1997 the applicant was released on probation and expelled to Tunisia. Upon arrival he was allegedly arrested and detained for a month. M and the three children visited the applicant in Tunisia between 10 June and 16 August 1997.
On 22 January 1998 the Government rejected a further request for an annulment of the expulsion order.


ITEMID: 001-83335
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STEFF v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Art. 14+P1-1
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 5. The applicant was born in 1955 and lives in Hertfordshire.
6. The applicant’s wife died on 9 February 1999, leaving two children, born in 1987 and 1992. On 11 May 2000 the applicant applied for widow’s benefits. By a letter dated 15 May 2000, the Benefits Agency informed him that it was unable to pay him any of the benefits claimed because he was not a woman.
7. On 6 June 2000 the applicant applied for an allowance under the Income and Corporation Taxes Act 1988 on the same basis as he would receive it if he were a widow whose husband died in similar circumstances. He only received a letter of reply on 25 July 2000.
8. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no social security or tax benefits were payable to widowers under United Kingdom law.
9. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Hobbs, Richard, Walsh and Geen v. United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-113213
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DURSUN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Mr Haydar Dursun, is a Turkish national who was born in 1964 and lives in İstanbul.
3. On 26 September 1999, at around 5 p.m., the applicant’s brother, B.D., died as a result of falling from the roof of a building, allegedly while trying to pick a fig from a tree.
4. Following the incident gendarmerie officers arrived at the scene of the incident. They drafted a report at 5.30 p.m. and drew a sketch.
5. The Tuzla Public Prosecutor began an investigation into the incident.
6. On 7 October 1999 the applicant filed a formal complaint with the Tuzla Public Prosecutor’s Office.
7. According to the autopsy report of 5 November 1999, the experts observed several abrasions and ecchymoses on the deceased’s body. They concluded that the cause of death was fractures to his head due to blunt head trauma, and cerebral bleeding.
8. On 17 January 2000 the public prosecutor inspected the scene of the incident and interviewed three suspects.
9. In the meantime the gendarmerie questioned several witnesses.
10. On 3 March 2000 the Tuzla Public Prosecutor issued a decision not to prosecute. The prosecutor found that B.D. had died as a result of falling from the roof of a building while trying to pick a fig.
11. On 12 March 2000 the applicant filed an objection against the decision not to prosecute.
12. On 23 May 2000 the Kadıköy Assize Court quashed the decision of 3 March 2000 and ordered that criminal proceedings be initiated against the suspects on account of the findings of the autopsy report of 5 November 1999. Drawing attention to the ecchymoses on B.D.’s body, the assize court noted that those wounds might have occurred during a fight.
13. On 16 June 2000 the Kartal Public Prosecutor issued a bill of indictment charging three persons with intentional homicide under Article 448 of the former Criminal Code.
14. On 21 December 2000, at the fifth hearing, the Kartal Assize Court acquitted the accused as there was not sufficient evidence to convict them.
15. On 31 October 2001 the Court of Cassation upheld the judgment.
16. Following the acquittal of the accused, on 1 May 2002 the Tuzla Public Prosecutor issued an extended search warrant in connection with the search for the perpetrators of the incident, valid until 26 September 2004.
17. On 14 March 2002 the applicant made a request to the Tuzla Public Prosecutor for the investigation to be reopened as he was not satisfied with the outcome of the criminal proceedings. He expressed doubts about the way his brother had died.
18. On 14 November 2003 a gendarmerie officer took a statement from the applicant concerning the incident. He stated that his brother must have been murdered. The applicant requested that statements be taken from certain persons about whom he had suspicions.
19. After the issue of the search warrant, the gendarmerie reported to the Tuzla Public Prosecutor at regular intervals that they had been unable to find the perpetrators of the killing of B.D.


ITEMID: 001-58231
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AKA v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: John Freeland;N. Valticos
TEXT: 8. The applicant was a Turkish citizen and was born in 1930. At the material time he lived in the village of Gökdoğan (district of Durağan – Sinop province).
9. At the beginning of September 1987 the National Water Board (“the DSİ” – Devlet Su İşleri), a State body responsible, inter alia, for dam construction, expropriated two plots of land belonging to the applicant in the village of Gökdoğan (Sinop).
Following the construction of the Altınkaya hydroelectric dam in the Kızılırmak valley, the land, which had been used for growing crops, was flooded, as was that of more than 3,000 families also affected by the scheme.
10. After title to the land had been transferred to the authorities on 4 September 1987, the DSİ paid the applicant a total of 4,370,962 Turkish liras (TRL) for the two plots of land (being TRL 1,380,000 and TRL 2,990,962 respectively).
11. On 2 October 1987 the applicant brought, in respect of the expropriation of each plot of land, an action in the Durağan Court of First Instance for increased compensation. The actions were registered under nos. 87/2837 and 87/2828.
12. During the proceedings the court ordered two on-site valuations by experts in order to assess whether the amounts fixed by the expropriating authorities were correct. The two panels of experts relied on the same criteria in preparing their valuations, namely the criteria set out in Law no. 2942 on expropriation rules. As, however, they did not use the same methods of calculation, their valuations differed, but both were higher than the amount that had been paid by the DSİ on expropriation.
An application by the parties for a third valuation was dismissed because the court considered that the two valuations had been based on criteria complying with the statutory requirements and contained sufficient relevant material to enable it to decide the case.
13. Subsequently, the applicant stated in writing that he accepted the lower of the expert valuations. The Court of First Instance noted his agreement and made an order in those amounts.
14. In action no. 87/2837, on 22 June 1989 the court ordered the DSİ to pay TRL 3,089,130 in additional compensation for expropriation. In action no. 87/2828 it awarded the applicant an additional TRL 3,895,692 on 10 May 1990. Those amounts bore simple interest for delay at the statutory rate of 30% a year running from 4 September 1987 (see paragraph 10 above).
15. The Court of Cassation upheld those decisions on 17 September 1990 and 6 September 1991 respectively.
16. The additional compensation awarded in action no. 87/2837 was paid to the applicant on 30 January 1992. It came to TRL 7,097,276, of which TRL 4,008,146 was interest for delay due up to December 1991.
In action no. 87/2828 the applicant received the sum of TRL 10,116,692 on 7 January 1993, TRL 6,221,000 of which was interest for delay calculated up to December 1992.
17. The relevant part of Article 46 of the Constitution, relating to expropriations, provides:
“... Compensation for expropriation shall be paid immediately and in cash... If deferred payment is permitted by statute ... interest for delay at the maximum rate laid down for State debts shall be payable on the part that is not paid immediately...”
At the material time the rate of interest for delay payable on debts owed to the State was 7% per month (84% per annum) (section 51 of Law no. 6183 on the collection of debts due to the State and Cabinet Ordinance no. 89/14915).
18. By Law no. 3095 the rate of interest on overdue State debts is 30% per annum.
19. Article 105 of the Code of Obligations (“CO”) provides:
“Where the loss sustained by the creditor exceeds the interest due for delay and the debtor is unable to show that the creditor has been at fault, it is for the debtor to make good the loss.
If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits.”
In practice, the loss for which compensation may be claimed under this provision is the loss caused by the lapse of time between the date the debt is due and the date it is paid.
20. On 3 June 1991 the Court of Cassation (Fifth Civil Division), which has jurisdiction in cases concerning compensation for expropriation, ruled as follows:
“The way in which creditors are compensated for the late payment of debt is through statutory interest. Since creditors are able, when resorting to enforcement measures, to claim the amount due to them plus interest, they are not entitled to claim any other form of compensation; accordingly, the decision to grant the creditor’s claim, on the basis that the rate of inflation was high, was ill-founded...”
The Government referred to another judgment delivered by the same division (judgment no. 96/13828 of 22 October 1996), in which the Court of Cassation had allowed an application for compensation under Article 105 CO. The decision concerned alleged additional loss resulting from the authorities’ delay in repaying a sum to which they had not been entitled. However, the claims in that case were based on the fact that in order to pay the amount supposedly due the plaintiff had had to close a deposit account before term, thereby losing interest.
Nonetheless, the practice of the Court of Cassation and in particular of its Thirteenth Division (see judgments nos. 95/267 and 96/9985) in cases not concerning expropriation appears to be to allow compensation for losses of that type under Article 105 CO in disputes between private individuals. On this point, it should be observed that the presidential committees of the Court of Cassation, responsible for ensuring that the case-law is consistent, tend to dismiss grounds of appeal based on differences in the practice of the various divisions, as they consider that decisions are made on a case by case basis in the light of the particular facts concerned and consequently do not need to be harmonised.
21. In a leading judgment of 23 February 1994 the Court of Cassation, sitting as a full court, ruled for the first time on the adverse effects of inflation, holding:
“Law no. 3095 was approved and came into force when inflation in the country was high with rates well over 30%. Notwithstanding that fact, the legislature fixed the rate of interest for delay at 30%. In the present case it would therefore be unlawful to award compound interest at a rate exceeding 30% on the erroneous basis that the rate of interest payable on bank deposits was applicable.”
22. On 19 June 1996 the Court of Cassation, sitting as a full court, delivered another leading judgment in which it decided the issue of the applicability of Article 105 CO (see paragraph 19 above) to claims for loss sustained as a result of inflation. It held as follows:
“... the rate of interest provided for by Law no. 3095 ... constitutes lump-sum compensation for damage without the need for proof of loss... Since the rate of default interest (interest for delay in payment) is fixed by statute in the light of the economic problems (inflation, monetary erosion ...) the country is experiencing, it is impossible to adduce the same factors (inflation, monetary erosion ...) as clear evidence of the additional loss referred to in Article 105 of the Code of Obligations, or to affirm that the resulting disadvantages constitute the actual damage suffered. Otherwise, the legislature’s decision that the compensation for those disadvantages would be 30% would no longer make any sense. If the legislature, having had regard to all the economic problems, has, by virtue of the legislative power conferred on it by the Constitution, fixed the rate of compensation for loss resulting from those problems, it cannot be accepted that the damage for which compensation is due amounts to 60% or 70% rather than 30%, on the implied ground that the [legislature’s] assessment was unfounded... It is obvious that inflation, which has a considerable impact in the current economic climate of the country, exceeds [the rate of] 30% laid down by ... Law no. 3095 and that [in consequence] the creditor’s loss through late payment is not covered. However, in so far as it exceeds the 30% rate fixed by the legislature, that loss does not come within Article 105 of the Code of Obligations... As the legislature, pursuant to its legislative power, considered that the loss amounted to 30%, a judicial decision applying a higher rate of loss on the ground that inflation exceeds 30% would constitute an encroachment on the legislature’s jurisdiction...”
23. In practice, leading judgments must be followed by the courts below when those courts decide issues similar to those previously considered by the Court of Cassation, sitting as a full court.
24. In January 1992 and 1993 the average exchange rate of the US dollar was, according to the exchange rate applied by the Central Bank of Turkey, TRL 5,332.59 and TRL 8,711.80 respectively.
25. The effects of inflation in Turkey are indicated in the lists of the retail price index published by the State Institute of Statistics. According to the relevant list, if the base index for the months of September and October 1987 (when title to the expropriated property was transferred to the authorities and the proceedings were issued in the Durağan Court of First Instance – see paragraphs 10–11 above) is taken as 100, the inflation index had by January 1992 (when the additional compensation in case no. 87/2837 was paid – see paragraph 16 above) reached 1006.06 and 1783.48 by January 1993 (when the additional compensation in case no. 87/2828 was paid – see paragraph 16 above).


ITEMID: 001-91308
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DENISENKO AND BOGDANCHIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);No violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The first applicant, Mr Denisenko, was born in 1982 and the second applicant, Mr Bogdanchikov, was born in 1979. The applicants are serving their prison sentences in correctional colonies USh 382/3 and USh 382/2 respectively, in the Saratov Region.
6. On 1 March 2001 patrol officers from Khamovniki police station in Moscow arrested the applicants and a certain Mr Nikitin on suspicion of attempted murder and robbery by an organised gang.
7. On 2 March 2001 the applicants were questioned. The interview record contains a handwritten statement by the first applicant to the effect that he had been apprised of his “rights and obligations” and required no legal assistance at that stage of the proceedings.
8. On 4 March 2001 the Khamovniki district prosecutor of Moscow authorised the first applicant’s pre-trial detention on the ground that he had been arrested at the crime scene, was suspected of particularly dangerous crimes and, if released, could abscond and interfere with the establishment of the truth. The prosecutor’s decision referred to Articles 90-92 and 96 of the Code of Criminal Procedure.
9. On 12 March 2001 the first applicant was charged with attempted aggravated murder and several robberies committed in concert. The decision was served on him on the same day in the presence of a legal-aid lawyer.
10. On an unspecified date the first applicant’s mother asked the district prosecutor for permission to visit her son, without success. On 21 March 2001 the first applicant’s mother was allowed to visit him in custody for the first time. It appears that the first applicant did not complain about the refusal of visits by his mother to the competent authorities.
11. On 27 April 2001 the Khamovniki district prosecutor extended the first applicant’s and his co-accused’s detention until 2 June 2001. The prosecutor noted that on 2 March 2001 the first applicant and his co-accused had been arrested on suspicion of committing several robberies and an attempted murder in concert, and that their placement in custody had been authorised on 4 March 2001. On 12 March 2001 the first applicant had been charged with the crimes of which he was suspected and the preventive measure had been upheld.
12. The prosecutor further referred to the fact that the first applicant and his co-accused had been arrested at the crime scene and that the victims of the attempted murder and the robberies had identified them as their assailants. The prosecutor considered that the first applicant and his coaccused should not be released because, once at large, they could interfere with the establishment of the truth and abscond. It was further noted that the term of detention of the accused expired on 2 May 2001, but that it was impossible to complete the investigation by that date because it was necessary to obtain forensic reports from expert examinations initiated earlier, to carry out formal identifications and confrontations between the victims and the accused and to provide the accused with access to the case file. Finally, it was noted that during that phase of the investigation the investigators had questioned the victims, the accused and the officers who had arrested them, organised confrontations between the accused and the victims, carried out a fingerprint examination and ordered four medical examinations to establish the nature of the injuries sustained by the victims, as well as three forensic biological examinations of the physical evidence.
13. The first applicant complained to the courts, alleging that the prosecutor’s decisions authorising his placement in custody and extending his detention had been unlawful and unreasonable.
14. By a decision of 7 May 2001 the Tverskoy District Court of Moscow rejected the first applicant’s complaints, finding as follows:
“...There were no serious breaches of the law on criminal procedure which could have called for the annulment of the decisions to place the accused [the first applicant] in custody and to extend his pre-trial detention. The placement in custody of the accused and the extension of [his] detention were ordered by a competent authority.
The court has had regard to the personality of the [first applicant], who has no criminal record, is being prosecuted for the first time, has a permanent place of residence in Russia, has produced positive references from his school and employer and is of a young age (19 years old); the court has also had regard to other circumstances mentioned in the complaints of the accused and his lawyer.
However, taking into account the nature and the level of danger represented by the acts imputed to the [first applicant], the number of the accused, and the fact that pretrial detention may be imposed on the sole ground of the dangerousness of the offence, the court concludes that, in bringing charges against [the first applicant], the investigators had collected sufficient information to justify prosecuting him and imposing this preventive measure on him. The decisions concerning the [first applicant’s] placement in custody and extension of his detention are lawful and justified and the court sees no reason to annul them.”
15. On 17 July 2001 the Moscow City Court dismissed an appeal against the above decision for the following reasons:
“...In examining the question of the lawfulness and reasonableness of the placement in custody and extension of the detention of [the first applicant], the [District] court verified whether the prosecutor had complied with all the requirements of the law on criminal procedure with regard to application of a preventive measure in the form of detention to [the first applicant]. The court had at its disposal the relevant materials from the case file and information on [the applicant’s] personality and his state of health. Having studied the materials, the court arrived at the well-founded conclusion that the preventive measure and its extension until 2 June 2001 had been lawful and well-founded because this measure had been applied and extended by a competent person within the prescribed time-limits, with regard being had to the gravity of the charge and the information on the personality of the detainee.”
16. The first applicant’s detention was subsequently extended by the prosecutor and the Khamovnicheskiy District Court. The applicant did not challenge the prosecutor’s decisions before the courts, nor did he challenge the District Court’s decisions before the court of appeal.
17. On an unspecified date in September 2001 the applicants’ criminal case was listed for trial before the Khamovnicheskiy District Court. The first applicant was represented by a lawyer and a lay representative.
18. On 4 July 2002 the Khamovnicheskiy District Court convicted the first applicant and his co-accused of several counts of aggravated robbery, infliction of grievous bodily harm and hooliganism committed in concert. The court established that on 1 March 2001 the defendants had violently attacked M. with the intention of stealing her possessions but had discovered that she had no articles of value. Immediately thereafter, they had attempted to rob A., had kicked and punched him, and had stabbed him numerous times with a knife in the chest and back. The defendants had tried to escape once they had seen O. and N. approaching. On seeing A. bleeding on the ground, O. and N. had attempted to stop the defendants and a violent fight had ensued. In the fight N. had been kicked and punched and O. had been kicked, punched and stabbed several times with a knife. At about that moment the passing police patrol had intervened and arrested the defendants.
19. The court based the finding of the applicants’ guilt on oral testimonies by the four victims (M., A., O. and N.) who identified the applicants as their attackers, oral testimony by police officers G. and K., reports on identification parades, records of confrontations between the victims and defendants, forensic reports and physical evidence (knife and bloodstained clothing). The first applicant was sentenced to twelve years’ imprisonment.
20. On 27 December 2002 the Moscow City Court upheld the applicants’ conviction on appeal.
21. According to the first applicant and his mother, in the night following his arrest (that is, on 2 March 2001) police officers from Khamovniki police station had ill-treated him with a view to extracting a confession. They had hit him on the head with a pile of books and a plastic bottle. They had also hit him on the body with a wooden board, injuring his coccyx. They had kicked him in the area of the kidneys, as a result of which he had had pain in the kidneys afterwards and, finally, had handcuffed him to a radiator, causing burns on his wrist. Being unable to stand the illtreatment, the applicant had confessed.
22. On 2 March 2001 at 8.40 a.m. a medical assistant at Moscow narcotics clinic no. 17 examined the first applicant with a view to establishing whether he was drunk. According to his report (no. 1904), the first applicant was sober and calm, did not make any complaint, his clothing was clean and he had a burn on his right wrist. The first applicant countersigned the report.
23. On 5 March 2001 the first applicant was transferred to remand centre IZ-48/2 (subsequently renamed IZ-77/2, hereafter “IZ-77/2”) in Moscow.
24. On 8 March 2001 the first applicant complained of the alleged illtreatment to the Khamovniki district prosecutor. His mother sent numerous telegrams to prosecutors at various levels, complaining that her son had been ill-treated at the police station and requesting them to initiate criminal proceedings against the police officers or, if they refused to do so, to provide her with a decision to that effect.
25. On 28 April 2001 investigator S. of the Khamovniki district prosecutor’s office decided not to institute criminal proceedings against the police officers, giving the following reasons:
“...On 28 March 2001 the Khamovniki district prosecutor’s office received the complaint[s] by Mr Denisenko [the first applicant]... and his mother about the use of unlawful methods of investigation against [the first applicant]...
According to the complaint of [the first applicant], ... police officers of Khamovniki police station used unlawful methods of investigation against him; in particular, [they] inflicted bodily injuries on him [and] forced him to give untrue statements, threatening him with reprisals...
The statement by [the first applicant] is refuted by the following evidence:
Officer G. of Khamovniki police station in Moscow, when questioned as a witness, submitted that on 1 March 2001 he had been patrolling the area... together with [officers] M. and K. At around 11.25 p.m. [G.] had observed three persons attempting to escape after they had seen [the police officers]. One of the persons, who had subsequently turned out to be [the second applicant], had thrown away a knife which had red spots on it. [The second applicant] and [the first applicant] had resisted their arrest and [police officers] had used martial art techniques against them... Subsequently, citizens O., A., M. and N. had approached G. and stated that [the second applicant] and [the first applicant] had assaulted them and had inflicted bodily injuries on them.
Officers M. and K. of Khamovniki police station, when questioned as witnesses, made statements similar to that given by G.
According to the explanation given by Kh., head of Khamovniki police station, on 1 March 2001 at around 11.20 p.m. an on-duty officer informed him of a robbery on Komsomolskiy Avenue in Moscow. Approximately twenty minutes later [the second applicant], [the first applicant] and Mr Nikitin were brought to Khamovniki police station with a view to verifying whether they had been involved in the above crime... The [second applicant] and the [first applicant] were questioned by officers of Khamovniki police station. Following the arrival of investigators from the Khamovniki district prosecutor’s office the detainees were transferred to them with a view to carrying out the investigative measures. Kh. did not see any bodily injuries on [the first applicant]. No physical force or moral pressure was used against the arrestees and they did not complain about infliction of bodily injuries either to Kh. or to the on-duty officer of Khamovniki police station. On completion of the necessary investigative actions, [the second applicant] and [the first applicant]... were brought to the temporary detention wing of Zamoskvorechye police station. On their admission to the wing, [the second applicant] and the [first applicant] ... did not have bodily injuries and did not complain that unlawful methods of investigation had been used.
According to a certificate obtained by the Khamovniki district prosecutor’s office of Moscow from [remand centre] IZ-48/2 [subsequently IZ-77/2], no bodily injuries were found on [the first applicant] on his arrival at IZ-48/2.
Having regard to the foregoing, the investigator concludes that [the first applicant] complained of unlawful methods of investigation in order to mislead the investigation and to escape criminal responsibility; accordingly, there is no corpus delicti in the acts of the officers of Khamovniki police station...”
26. It was further stated that a copy of the decision was to be sent to the Khamovniki district prosecutor.
27. By telegrams of 15 May and 10 and 27 June 2001 and 23 March, 9 August and 23 September 2002, the first applicant’s mother requested prosecutors at various levels to provide her with a copy of the decision not to initiate criminal proceedings into the alleged ill-treatment of her son. She averred that she needed the decision in order to challenge it before the courts. It appears that her requests were unsuccessful.
28. By a letter of 7 June 2002, sent in response to a query from the first applicant’s mother, the authorities of remand centre IZ/77-2 informed her as follows:
“...On his arrival at the remand centre from Khamovniki police station your son was found to have the following bodily injuries: injury of the left elbow joint; first-degree thermal burn to the skin in the area of the right wrist joint; skin abrasion in the lumbosacral area.”
29. The first applicant raised the ill-treatment issue at trial and requested the court to exclude his confession as having been obtained under duress. He provided the following details of the alleged ill-treatment:
“...I ran to Komsomolskiy Avenue and [then] stopped. A patrol car with police officers stopped nearby. An officer got out of the car and knocked me down. He searched me and asked me why I was running away. I was handcuffed and put in the car ... then they put me in a different car and took me to the police station. They put me against the wall, took away all my belongings and started beating me up. They told me that I was a murderer and that I had killed three people... Then they took me to the fourth or fifth floor and [again] questioned me ... I told them what had happened. They beat me up and attached me to the ‘cage’ [the fenced-in area within the police station used for holding suspects]. They cuffed me to the radiator and beat me up, told me that if I did not tell them what they were asking me to tell they would fake my escape and kill me. They also told me that they would put me in a cell and rape me. I withdraw all my depositions made on 1 and 2 March 2001 because they are all distorted and do not reflect my statements accurately...
When I was questioned ... on 2 March 2001 ... I felt unwell. I told those who were questioning me but they laughed at me. I did not get medical assistance. The burn occurred because I was handcuffed to a radiator and was held [like that] for five hours. The persons who questioned me saw the traces of my bodily injuries.”
30. The trial court rejected the first applicant’s request for exclusion of evidence as premature and accepted the above letter dated 7 June 2002 for inclusion in the file. It appears that the investigator’s decision of 28 April 2001 was also appended to the case file.
31. While being questioned about the circumstances concerning the charges of robbery and infliction of bodily harm on the victims, the first applicant stated as follows:
“... I saw [my co-defendants] involved in a scuffle with somebody. I decided to help ... and ran closer. I was grabbed by the shoulders and thrown backwards onto [the second applicant]. Then somebody started hitting me but I did not see who it was.”
32. The court examined officer G., who had participated in the arrest of the defendants. He testified that the person whom he had arrested had not offered any resistance and that he did not know whether the other arrestees had offered resistance to his colleagues.
33. In their final pleadings, referring to the letter of 7 June 2002 and the prosecutor’s decision of 28 April 2001, the first applicant’s lawyer and lay representative stressed that the investigator and the court had failed to examine properly his complaint concerning ill-treatment. They also averred that the investigator had disregarded the first applicant’s requests for a medical examination made shortly after the alleged ill-treatment. They claimed that the first applicant had confessed under duress to the crimes of which he stood accused.
34. On 4 July 2002 the District Court convicted the first applicant as charged and dismissed his allegations of ill-treatment, giving the following reasons:
“It was established at the court hearing that the defendants’ arguments that they were pressurised at the pre-trial investigation stage by police officers, whose surnames, first names, ranks and appearance they could not provide, were unfounded; the materials in the case file also refute them...”
35. On 27 December 2002 the Moscow City Court upheld the applicants’ conviction. It noted that the applicants’ allegation of ill-treatment had been duly examined and rejected by the trial court.
36. The Government submitted a written statement dated 16 August 2005 made by officer K. of Khamovniki police station to an officer of the Internal Security Department of the Ministry of the Interior. The statement, in its relevant parts, reads:
“... I was on duty on the night of 2 March 2001... That night I joined the car patrol team including officers G. and M...
At around midnight we drove past house no. 48 on Komsomolskiy Avenue. The house had an archway. G. told us that three persons were leaving through the archway and that we should check their identity...
Our car stopped and the persons also stopped. Subsequently, I learnt that they were Mr Denisenko [the first applicant], Mr Bogdanchikov and Mr Nikitin.
When I opened the door I saw the persons run away from our car [the first applicant] ran along Komsomolskiy Avenue... I ran after him...
I caught up with him and grabbed his shoulder. He did not fall, I turned him round and asked ‘Why are you running?’. He answered that he did not have a valid registration in Moscow. I asked him to show his passport. He handed it over to me and I saw that he did have a valid registration. I became suspicious. While trying to understand why he was lying to me I noticed that his knuckles were covered with blood. His jacket was also covered with blood... I asked him where the blood had come from and why his hands were bruised. He started mumbling something about a scuffle...
I decided to arrest [the first applicant] to verify all the circumstances. At that moment [officer] M. told me by walkie-talkie that several victims had been discovered in the courtyard of the house and that I should bring the apprehended persons [to the car]. [The first applicant] did not resist his arrest even after having heard the message. I think that he was frightened by my appearance because he is skinny and shorter than me and it would not have been difficult for me to prevent him from escaping... I put a handcuff on [the first applicant’s] right hand...
I did not use physical force against him during his arrest because he did not resist and, in my view, was depressed.
Together with [the first applicant] I approached [officer] M. who was in the courtyard of the house where the victims had been discovered.
I saw ... two men.. One of them had numerous bruises and abrasions on his head. On his clothing ... I saw numerous slits and traces of blood. On seeing [the first applicant], ... he pointed to him and said ‘That is one of the men who stabbed me’...
Then [officers] G., M., myself and one of the arrestees (I don’t remember which) drove to the police station.
On our arrival ... I removed the handcuffs from [the first applicant] ...in my presence the on-duty officer searched the arrestees and drafted the necessary documents,. I drafted the report on their arrest. I don’t remember which detainee started shouting, requesting a lawyer, a prosecutor and his own immediate release. None of the police officers reacted to the shouting, everybody waited for the arrival of the investigators. After being checked out [the first applicant] and Bogdanchikov were put in cells for administrative detainees at the police station until the arrival of the investigator.
On the arrival of the investigation team, G. and I were sent to look for the knife with which the detainees had injured the victims.
During the time I spent at the duty unit ... I did not hear the detainees complain about their health. Neither I nor other officers of [Khamovniki] police station in my presence used physical force against the detainees, humiliated or tortured them...
The cells at the police station are separated from the other area by bars [through which one could see inside the cells]. The whole area of the duty unit on the first floor did not at the relevant time and does not now have uncovered radiators, i.e., the radiators are covered ... with chipboard with round holes. That’s why I can reliably state that [the first applicant] could not have been handcuffed to a radiator. I did not see anybody handcuff [the first applicant] to the bars of the cell or beat him.
In my presence nobody questioned ... [the first applicant], but after a while I was given an address where Nikitin might be hiding.
When we brought Nikitin [to the police station], I saw [the first applicant] and Bogdanchikov in the cell for administrative detainees, that is, after their conversation with police officers. I would say that they were calm, did not complain and looked the same as when we had brought them there, i.e., they did not have bruises or abrasions.
Later, at around 11 a.m. on 2 March 2001, an investigator from the prosecutor’s office and the deputy prosecutor A.R. arrived. Until their arrival the detainees were held in the cells.
Some time later an investigator from the prosecutor’s office questioned me; his questions concerned only the evidence in the criminal case. The investigator did not question me about the use of physical force against the detainees or the use of special methods or weapons [against them], from which I concluded that the detainees had not complained about us.
Then I left and did not see what happened with the detainees subsequently...
I did not give any explanations to anybody concerning the above events and I did not know that Denisenko had complained about ill-treatment at Khamovniki police station until the [present] summons to the Internal Security Department of the Ministry of the Interior.”
37. From 5 March 2001 to 15 July 2002 the applicants were held in remand centre IZ-77/2 in Moscow.
38. The cells where the first applicant was held contained thirty-two sleeping places in sixteen two-tier bunk beds and accommodated up to eighty inmates during the relevant period. The inmates had to sleep in shifts and rarely slept more than three hours a day.
39. The first applicant was not provided with bedding and had access to a shower only once a week. The cells had little or no ventilation and were each lit by one fluorescent lamp twenty-four hours a day. The windows were not glazed, the cells were extremely cold in winter and the inmates had to stuff blankets in the window frames to keep the warmth inside. The sanitary conditions were unsatisfactory. The first applicant was kept together with inmates suffering from tuberculosis or infected with HIV. On two occasions the occupants of the first applicant’s cell were placed in quarantine because of jaundice.
40. In support of his submissions the first applicant presented a written statement from Mr Syngayevskiy, who had been detained in the same remand centre from 18 September 2000 to 19 January 2005, in particular in cell no 121. In his statement Mr Syngayevskiy confirmed the first applicant’s submission that there was severe overcrowding and a lack of individual beds.
41. The second applicant submitted that the conditions of his detention in remand centre IZ-77/2 were the same as those described by the first applicant.
42. Relying on certificates issued by remand centre IZ-77/2 on 12 July and 4 and 23 August 2005, the Government presented the following description of the first applicant’s conditions of detention.
43. The first applicant was held in cell no. 6 (from 5 March to 29 June 2001) and cell no. 121 (from 29 June 2001 to 15 July 2002). Both cells measured 57.7 square metres and had forty-eight beds. At the relevant time cell no. 6 accommodated forty-two to fifty inmates and cell no. 121 had between twenty-eight and forty-two inmates. Although the remand centre was overcrowded, the first applicant was at all times provided with an individual bed and bedding.
44. The windows in the cells were glazed and the air temperature and humidity level were in conformity with the relevant standards. The cells had no artificial ventilation system at the time of the first applicant’s detention; this was introduced only in 2003. In accordance with the applicable regulations, the first applicant had access to a shower once a week.
45. On the days of court hearings, that is, on at least six days, according to the hearings transcript submitted by the first applicant, he was woken up at 5 a.m. He had no breakfast and was not given any ration. Although the Khamovnicheskiy District Court had a café, the applicant’s relatives were not allowed to buy him food there or otherwise supply him with food. The first applicant returned to the remand centre at between 8 and 10 p.m. and had to wait for a further three to four hours to be escorted to his cell. Thus, he had no dinner at the remand centre on those days.
46. In the courthouse convoy cells he was not given anything to drink and could drink tap water only when he visited the toilet. The cell measured around five square metres and accommodated eight to ten detainees. The cell was gloomy because it was lit by a twenty-watt bulb. It lacked ventilation and when other detainees were smoking the first applicant had to endure the smoke. A visit to the toilet was possible only twice a day as directed by the warden. Of the six hearings referred to in the court hearings transcript, one started at 11 a.m., one at 1 p.m., two at 3 p.m., one at 5 p.m. and one at 6 pm. Occasionally, the first applicant would spend more than ten hours a day in the courthouse cell.
47. At a hearing on 25 June 2002 the applicant complained to the trial judge in the following terms:
“I ask the court to note that I am not being given any food or rest. I cannot participate adequately in the trial. This is a statement, not a request. I ask the court to include it in the case file and to oblige the management of the remand centre [unclear]”.
The court rejected the request, finding that it was not within its jurisdiction. The applicant also raised the complaint about the lack of food on appeal. The appeal decision was silent on that point.
48. With reference to the letter of the President of the Khamovnicheskiy District Court dated 19 October 2005, the Government submitted that the sanitary conditions in the convoy cells were in conformity with the domestic regulations. In its relevant parts the letter reads as follows:
“The convoy premises... are in conformity with the requirements, including sanitary... Defendants are held at the court’s premises after their transfer by the remand centre escort service for the period of examination of the case in court and also during the breaks in the examination of the case.
On hearing days the court regularly orders a lunch break. According to Article 17 of the Federal Law of 15 July 1995 no. 103-FZ, defendants have the right to be provided with meals free of charge; however, implementation [of this right] is ensured by the Federal Service for the Execution of Sentences”.
49. With reference to the above letter and a certificate issued by the head of remand centre IZ-77/2, the Government submitted that on the dates of his transfers to the District Court the applicant had received a dry ration (bread, tinned meat and fish, tea, salt, sugar and disposable tableware), in accordance with the applicable regulations. The Government did not provide a copy of the certificate to the Court.
50. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP” or “the Code”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation and could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation (Articles 210 and 211). If there were no grounds for initiating or continuing a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Articles 113 and 209).
51. Section 23 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Detainees should be given free of charge sufficient food to maintain them in good health in line with the standards established by the Government of the Russian Federation (section 22).
52. On 4 May 2001 the Ministry of Justice adopted the rules on food supplies for convicted prisoners and persons detained in remand centres. According to Annex no. 3 to these rules, a daily dry ration (bread, tinned beef or fish, sugar, tea and salt) is provided to the following categories of persons: convicted prisoners on their way to a prison, remand centre or colony; persons released from custody on the way to their place of residence; persons during their stay in patient-care institutions or convicted juveniles. Those rules were amended in 2004 and repealed in 2005.
53. On 4 February 2004 the Ministry of Justice adopted the rules on the supply of dry rations, according to which persons suspected or accused of criminal offences should be supplied with a dry ration (bread, pre-cooked first and second courses, sugar, tea and tableware) during their stay at the courthouse. Detainees were to be supplied with hot water with which to consume the ration.
54. At the relevant time preventive measures (меры пресечения), including pre-trial detention, were governed by the CCrP, which provided as follows:
“No one may be arrested other than on the basis of a judicial decision or a prosecutor’s order. ...”
“If there are sufficient reasons to believe that the accused will elude the investigation or evade justice, obstruct the establishment of the truth in the case or engage in a criminal activity..., one of the following preventive measures may be imposed: an order not to leave the place of residence, a personal security, ... placement in custody...”
“In exceptional circumstances, a preventive measure may be imposed on a suspect who has not been charged. In such cases, charges must be brought against the suspect within ten days after the preventive measure has been imposed. If no charges are brought within that period, the preventive measure shall be lifted.”
“When considering the need to impose a preventive measure and choosing one of them, ... the investigator, prosecutor or court shall take into account, in addition to the circumstances enumerated in Article 89 of the present Code, the gravity of the charges, the personality of the suspect or accused and his occupation, age, state of health, family status and other circumstances.”
“A preventive measure shall be imposed by means of a reasoned order issued by an ... investigator or prosecutor or a reasoned decision by a court, which must specify the offence of which the person is suspected or with which he has been charged and the grounds for imposing the preventive measure. The person concerned must be informed of the order or decision and, simultaneously, of the procedure for bringing a complaint against the decision to impose such a measure.”
“Placement in custody shall be imposed as a preventive measure ... in respect of a person suspected of or charged with having committed an offence punishable by imprisonment of more than one year. In exceptional circumstances, this preventive measure may also be applied to a person suspected or accused of an offence punishable by imprisonment of less than one year.
Persons charged with having committed the offences set out in Articles 105, ...162 §§ 2, 3 and ... of the Criminal Code may be remanded in custody on the sole ground of the dangerousness of the crime...”
The amendments of 14 March 2001 repealed Article 96 § 2, which had permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they were charged with.
“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or town prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension making a total of six months from the day of placement in custody may be effected only in cases of particular complexity, by a prosecutor of a subject of the Russian Federation ...”
55. Article 52 of the CCrP provided that a “suspect” (подозреваемый) was a person (i) arrested on suspicion of having committed a crime, (ii) against whom a criminal case had been opened or (iii) to whom a preventive measure was being applied, before he or she was formally charged with a particular crime. When an investigator was satisfied that there was sufficient evidence to press charges against a person, he or she issued a formal decision making that person a party to the proceedings as an accused (постановление о привлечении в качестве обвиняемого) (Article 143). From the moment of delivery of that decision the person was considered to be an “accused” (обвиняемый) (Article 46). The investigator had to serve the above decision on the accused in person not later than two days after its delivery and to explain to the accused the nature of the charges (Article 148).
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-84809
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KONOTENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1963 and lives in Sidorovka, in the Rostov region of the Russian Federation.
6. On 18 May 1999 the Rovenky Court (Ровеньківський міський суд Луганської області) awarded the applicant 8,895.36 hryvnyas (UAH) against his former Ukrainian employer, the State-owned OJSC Mine “Dzerzhynskogo” (Державне відкрите акціонерне товариство «Шахта ім. Дзержинського»), in disability benefits and other payments.
7. This judgment was not appealed against, became final, and enforcement proceedings were instituted to collect the debt.
8. The debt was paid to the applicant in numerous small instalments, the last payment of UAH 363.46 having been made on 17 June 2005.
9. As explained by the bailiffs' service, the enforcement of the judgment had been delayed on account of numerous reasons, including a prolonged reorganization of the debtor, insufficient funds and a tax lien imposed on its property, as well as a statutory moratorium on the forced sale of the State property.
10. The relevant domestic law is summarised in the judgment in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1