ITEMID: 001-23845
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: KRIVONOGOVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Lyubov Nikolayevna Krivonogova, is a Russian national, who was born in 1957 and lives in Omsk. She is represented before the Court by Ms Deryabina, a lawyer practising in Omsk. The respondent Government are represented by Mr P. Laptev, 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.
In 1998 the applicant brought an action against a private party to recover a debt under a loan contract.
On 23 December 1998 the Sovetskiy District Court of Omsk awarded RUR 46,263.56 to the applicant, with interest to be charged until the day of actual payment.
On 4 January 1999 the judgment entered into force.
On 4 February 1999 the enforcement proceedings were opened. The defendant's flat was subject to a charging order.
On 18 August 1999 the bailiff seized the defendant's car and lifted the charging order on the flat.
On 20 August 1999 the bailiff suspended the enforcement proceedings until 26 August 1999 due to the defendant's husband's request to separate his property from that of his wife to preserve his share.
Following the lifting of the charging order the applicant learned that the defendant had sold the flat and bought another one. The applicant alleges that the defendant sold the flat at the price RUR 180,000 and paid RUR 112,000 for the new one.
The applicant brought two sets of proceedings against the bailiff. Firstly, she challenged the lifting of the charging order. Secondly, she challenged the delay in enforcement.
On 22 March 2000 the Sovetskiy District Court of Omsk declared the lifting of the charging order unlawful. The court held, in particular, that “it reduced the effectiveness of the court's judgment”. The bailiff appealed.
On 11 April 2000 the Sovetskiy District Court of Omsk declared unlawful the suspension of 20 August 1999 and the delay in enforcement of the judgment.
On 26 April 2000 the Omsk Regional Court acting on appeal upheld the decision of 22 March 2000. The court dismissed the bailiff's objection that the flat could not be subject to an injunction for being the defendant's only dwelling, as having no basis in law. It found that the bailiff's unlawful act allowed the defendant to dispose of the flat, which impeded the enforcement proceedings.
On 1 June 2000 the Sovetskiy District Court of Omsk defined the property shares between the defendant and her husband.
The applicant brought an action against the Ministry of Finance of the Russian Federation (Министерство финансов РФ) and the Department of Justice of the Omsk Region (Управление юстиции администрации Омской области). She claimed damages resulting from the bailiff's failure to enforce her award. She sought a total sum of RUR 82,838.00, representing the principal debt and the outstanding interest.
On 14 February 2001 the Central District Court of Omsk dismissed her claim. It stated that “neither the fact that the lifting of the charging order had been declared unlawful nor the undue delay of enforcement proceedings, although they resulted in a failure to execute the judgment, justifies an action for damages against the [authorities] because it was the [debtor under the loan] who had caused the damage to the applicant and who was liable pursuant to the judgment.” The court found “neither a fault on the part of the bailiff, nor a causal link between the bailiff's act and the damage caused”.
On 11 April 2001 the Omsk Regional Court acting on appeal upheld the judgment of 14 February 2001. The court noted that the enforcement proceedings had continued and that on 27 April 2000 and 14 August 2000 the bailiff had issued injunctions in respect of a flat and a vehicle, in both of which the defendant had had a share.
On 30 January 2002 the defendant's car was seized, and in May 2002 it was sold. So far RUR 32,260.65 has been paid to the applicant.
The Constitution of the Russian Federation, adopted by referendum on 12 December 1993, provides, in so far as relevant, as follows:
“...2. Decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court.”
“Every person shall have the right to be reimbursed by the state for the damage caused as a result of unlawful actions (inaction) of the state bodies and their officials.”
The Civil Code of the Russian Federation, in force as of 1 March 1996, provides for compensation for damage caused by the act (or a failure to act) on behalf of the State:
“Damage caused to an individual or a legal person as a result of an act or a failure to act by the state or municipal bodies, or their officials, including that caused by a written act issued by a state or a municipal body contrary to a law or a legislative act, shall be reimbursed. The damage shall be reimbursed by the treasury of the Russian Federation, the treasury of the subjects of the Russian Federation or the municipal treasury respectively.”
Article 1071 of the Civil Code authorises the relevant financial bodies to act on behalf of the respective treasury liable to pay damages.
Article 90 § 2 of the Federal Law on Enforcement Proceedings, in force as of 6 November 1997, provides that the damage caused by the bailiff shall be reimbursed in accordance with the civil legislation.
Article 446 of the Code of Civil Procedure, in force as of 1 February 2003, provides that a dwelling cannot be subject to a charging order for the purpose of enforcement, if it provides the only eligible residence for the debtor and his family.
No similar provision was in force before the entry into force of this Code.


ITEMID: 001-110206
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SHCHEBETOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1972 and lived until his arrest in the town of Yakutsk.
7. According to the applicant, in June 1997 he was arrested, beaten up by the police and released several days later. In September 1997 he was again arrested and charged with theft and robbery. On 20 February 1998 the Yakutsk Town Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The applicant was conditionally released on 1 June 2004, having served two-thirds of his sentence. However, two and a half months later he was arrested again on suspicion of aggravated robbery. By a judgment of 8 April 2005 of the Yakutsk Town Court he was found guilty as charged and sentenced to nine years’ imprisonment, to be served in correctional colony no. 7.
8. On 1 October 1997 the applicant was admitted to temporary detention facility no. IZ-14/1 in Yakutsk. According to the Government, who relied on a medical record drawn up by the head of the facility on 14 October 2005, together with the applicant’s medical history, the applicant was examined by the prison doctor on 2 October 1997. In addition, the necessary medical tests were performed, in particular blood tests for HIV and syphilis, which showed no presence of infection. A chest X-ray examination did not reveal any problems with the applicant’s lungs. Having been found to be in good health, he was placed in cell no. 1 with other healthy inmates. According to the Government, inmates suffering from tuberculosis were detained in a separate wing of the detention facility.
9. The next chest X-ray examination, on 30 April 1998, showed a lowintensity focal shade on the upper lobe of the applicant’s lung. On this basis he was diagnosed with focal tuberculosis. Additional examinations were recommended.
10. On 15 May 1998 a prison tuberculosis specialist examined the applicant and prescribed treatment. It follows from the medical record that it was not until 29 July 1998 that the applicant was admitted to the tuberculosis ward of the Sakha (Yakutiya) Republic prison hospital in correctional colony no. 7 (hereinafter “the colony hospital”), the reason being that his transfer to the hospital could only be effected after his conviction became final. The applicant was diagnosed with focal tuberculosis of the right lung in the infiltration stage and post-traumatic encephalopathy. He was released from the hospital on 28 October 1998 after an intensive course of anti-tuberculosis treatment with the recommendation that he continue with the drug therapy. It appears from the documents submitted to the Court that the recommendation was fully complied with.
11. The applicant was re-admitted to the colony hospital on six occasions – from 10 to 31 March 1999, from 12 May to 26 July 2000, from 6 March to 1 June 2001, from 13 December 2001 to 23 January 2002, from 28 November to 4 December 2002, and from 25 March to 5 May 2004 – where he was placed on an antibacterial chemotherapy regimen. Relying on the applicant’s medical record, the Government stressed that after continuous tuberculosis treatment and clinical testing, on 23 July 2000 the applicant was diagnosed with infiltrative tuberculosis of the upper lobe of the right lung in the resolution stage and assessed as requiring regular medical check-ups. The results of microbiological tests on bodily fluids performed in 1999 and 2000 identified no presence of mycobacterium tuberculosis. A chest X-ray examination carried out on 19 September 2001 revealed isolated small dense nidi on the upper lobe of the applicant’s right lung, accompanied by restricted pneumosclerosis. On 13 December 2001, following a medical examination by the head of the in-patient department of the Yakutsk Town Medical Institute for Scientific Research, the applicant was assigned for less intensive medical supervision, with the diagnosis of focal pulmonary tuberculosis at the consolidation stage. The applicant no longer required active clinical assessment and was to receive prophylactic treatment to prevent a relapse.
12. The applicant’s medical record contained a number of entries made by tuberculosis specialists recording his negative, and occasionally aggressive, attitude towards the treatment and the medical personnel. The attending doctors spoke with the applicant, explaining the necessity for and content of the treatment and persuading him to continue with it. The medical records provided by the Government further show that he received regular medical attention in respect of his tuberculosis, as well as medical examinations by prison doctors. The tuberculosis specialists consistently found his state of health to be satisfactory following successful courses of anti-relapse therapy. The applicant seemed to agree with the evaluation of his health, and made no complaints to the tuberculosis specialists. His complaints to the prison medical personnel were mostly of a psychological character, including sleep disorder, extreme nervousness, and fears of an unspecified nature. Those grievances were promptly addressed by the prison psychologist or neuropathologist, as well as by the prescription of medicines. The Government also provided the Court with extracts from hospital logs recording the intake of medicines by the applicant, their dosage and frequency.
13. In 2001 the applicant sued the Ministry of Justice and the detention facility, seeking compensation for damage sustained as a result of his being infected with tuberculosis. He claimed that he had contracted tuberculosis in detention, having been placed in a cell with a person infected with the active form of that illness, and that the administration of the detention facility had remained deaf to his complaints about the risk of infection.
14. The defendants submitted observations in reply. They insisted that there was no evidence that the applicant had contracted tuberculosis in detention because he was a long-term offender and had been in and out of prison since 1989. The applicant’s “way of life” was at the root of his contraction of the illness.
15. On 12 October 2001 the Yakutsk Town Court dismissed the applicant’s action, holding as follows:
“... the defendants’ fault for the damage to the plaintiff’s health was not proved. Under Article 151 of the Civil Code of the Russian Federation compensation for nonpecuniary damage, as a general rule, is awarded in cases when the fault of the defendant is established. The fact of [the applicant] contracting tuberculosis in the detention facility was not proved in open court: the mere fact that he had been detained in the cell with Mr S., who was suffering [from tuberculosis], cannot serve as a ground for finding the defendants responsible for the damage caused and does not prove their fault because this is only the plaintiff’s conjecture. Having regard to the character of the illness, the court considers it possible that the applicant contracted tuberculosis prior to his detention in 1997 because he had, in fact, been detained before and had only been at liberty for several months after his release. As was established in open court, during the plaintiff’s first medical examination on 2 October 1997 no evidence of [tuberculosis] was found, but on 30 April 1998 the results of an X-ray examination were positive: the plaintiff was diagnosed with focal tuberculosis of the right lung and treatment was prescribed, [the treatment] was a success, the plaintiff clinically recovered ...”
16. On 4 February 2002 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment of 12 October 2001 on appeal, endorsing the Town Court’s findings.
17. According to the applicant, at the end of December 2001 a colony medical assistant, Mr P., who was drunk, took a blood sample from an HIVpositive inmate, Mr G. The assistant used the same syringe to draw the applicant’s blood. The Government disputed the applicant’s version of events. According to them, on 13 December 2001 the applicant and six other inmates were admitted to the colony hospital for clinical assessment and anti-tuberculosis prophylactic treatment. On the following day a colony nurse, Ms Z., took blood samples from all the newcomers, including the applicant. Disposable syringes and needles were used for the blood tests. The results of the tests received on 18 December 2001 showed no presence of HIV antibodies in the blood of any of the inmates. Another colony nurse, Ms S., took a blood sample from inmate G. on 26 December 2001, the day of his arrival at the colony hospital. The Government stressed that the records of the colony hospital personnel showed that medical assistant P. had been on sick leave from 12 to 18 December 2001.
18. In March 2002 a blood sample was taken from the applicant to be tested for HIV. The results were unclear. Two further blood tests were carried out in July and September 2002. Medical experts also interpreted the results of those two tests as contradictory.
19. In November 2002, following another blood test, the applicant was diagnosed with HIV. When informing the applicant that he had contracted HIV, the prison doctor explained the results of the test and described various aspects of the infection, its assessment and treatment. It appears from the medical record that the prison psychologist had a number of meetings with the applicant to provide psychological support. The record also reveals that the applicant was subjected to regular clinical assessment to determine whether there was a need to start antiretroviral drug treatment for HIV. Moreover, the doctors constantly reminded the applicant, a heavy smoker and alcohol abuser, of the necessity to adhere to a healthy life style. Following the detection of the virus, the applicant was assigned an enriched food regimen and was prescribed courses of multivitamins and hepatoprotective medicine. On a number of occasions he was admitted to the therapeutic department of the colony hospital for a more in-depth evaluation of his state of health, the stage of the HIV infection and his readiness for drug treatment. However, the medical record shows that in September 2005 the applicant, without any explanation, refused to be transferred to the colony hospital for further medical assessment.
20. The applicant complained to various domestic officials that he had been infected with HIV.
21. The doctors of the detention facility filed a report on the state of the applicant’s health. The report stated as follows:
“At the material time [the applicant] is detained in colony no. YaD-40/5. He is given regular medical check-ups in medical department no. IK-5 and he has been diagnosed with: focal tuberculosis of the upper lobe of the right lung in the carnification phase ... Clinical recovery ... HIV-infection (since November 2002).
... [The applicant] was diagnosed and treated in [the colony hospital] from 13 December 2001 to 12 February 2002 ... It is established on the basis of the record of the blood tests that on 14 December 2001 he was tested for HIV infection. The blood test was performed by a colony nurse, Ms Z., ... who used disposable syringes and needles ...”
22. On 6 January 2003 an investigator of the Yakutsk Town prosecutor’s office refused to open a criminal case, finding that the applicant’s blood sample had not been taken by Mr P. on 14 December 2001.
23. On 11 April 2003 the Yakutsk Town Court ordered an additional inquiry into the applicant’s complaints. The Town Court’s reasoning was as follows:
“Having studied the case-file materials, [the applicant’s] personal file and his medical record, the court considers that the decision refusing the institution of criminal proceedings is manifestly ill-founded; [the applicant’s] statements about the date when his blood sample was taken and the recording of the date of the test in his medical record are contradictory ...
It is also necessary to take into account the medical history of inmate G ... It is impossible to give a definite answer to the question whether [the applicant’s] blood was taken immediately after the blood had been taken from inmate G. without an examination of [the applicant’s] and inmate G.’s medical records drawn up during their stay in [the colony] hospital ...”
24. On 25 April 2003 the prosecutor refused to institute criminal proceedings, finding that the applicant had not been subjected to the blood test together with any HIV-positive detainee and that Mr P. had not taken the applicant’s blood sample. The prosecutor’s findings were based on the applicant’s and inmate G.’s medical records, hospital registration logs and statements by the colony medical personnel, including the colony nurses Ms Z. and Ms S., and the colony medical assistant, Mr P. Inmate G. refused to give any statements to the investigators.
25. The applicant appealed against the decision of 25 April 2003 to a court, arguing that in December 2001 his blood had been taken for testing twice. On the second occasion, at some point after 20 December 2001, assistant P. had taken his blood sample with the same syringe he had used to take a blood sample from inmate G.
26. On 9 July 2003 the Yakutsk Town Court quashed the decision of 25 April 2003 and ordered that criminal proceedings should be opened, giving the following reasoning:
“On two occasions the investigators refused to institute criminal proceedings because there was no indication of a criminal offence, although [they] did not establish the circumstances and the source of the HIV-infection even though the crime had taken place – [the applicant] had been infected with HIV – in the detention facility”.
The Town Court drew up a list of actions to be taken during the investigation, including a medical expert examination, confrontation interviews between the applicant and staff members of the colony hospital, including Mr P., and inmate G., and verification of Mr P.’s whereabouts.
27. On 7 August 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the decision of 9 July 2003, acting on appeal by prosecution authorities, and remitted the case for fresh examination, finding that it was necessary for the Town Court to hear inmate G. as a witness in order to arrive at the correct decision.
28. The Yakutsk Town Court summoned witness G. to a hearing on 15 December 2003. He refused to testify, invoking his constitutional right to remain silent. Holding that the applicant’s and inmate G.’s blood samples had been taken by the two colony nurses on two separate occasions and that there was no evidence that Mr P. had performed blood tests, the Town Court dismissed the applicant’s complaint.
29. On 3 February 2004 the Supreme Court of the Sakha (Yakutiya) Republic upheld the decision of 15 December 2003, endorsing the Town Court’s reasoning.
30. According to the applicant, the administration of the correctional colony had delayed the dispatch of his correspondence to the European Court of Human Rights or had not sent his letters at all. He initially cited a delay in dispatching his letter of 13 November 2003 as an example of the authorities’ failure to duly comply with their obligation not to interfere with his communication with the Court. However, following the notification of the case to the Government, he no longer relied on the incident involving the letter of 13 November 2003 but offered two other examples. In particular, he insisted that on 28 November 2002 he had handed a sealed envelope to the head of the special unit of the correctional colony to be sent to the Court. The envelope contained a letter and a number of documents in support of his complaints. However, the letter was mistakenly sent to the Sakha (Yakutiya) Republic Service for the Execution of Sentences (hereinafter “the Service”). The colony administration notified the applicant of the mistake and assured him that the Service would redirect the letter to the Court. Nevertheless, another mistake occurred and the applicant’s letter was sent to the Russian Ombudsman. The applicant insisted that before dispatching his letter an employee of the Service had seized the attachments to it. The letter was finally sent to the Court on 13 January 2003. The applicant stressed that he had learned that the documents had been seized when by a letter of 16 December 2004 the Court had asked him to submit copies of the two domestic court decisions which he had already enclosed with his letter of 28 November 2002. In addition, the applicant submitted that the prison authorities had delayed the dispatch of his letter of 25 November 2003.
31. The Government disputed the applicant’s submissions, arguing that according to correspondence logs drawn up in the facilities where the applicant was detained since 2002 and until 2004, he had sent twenty letters to the Court and more than three hundred letters to various Russian officials. Every letter had been successfully dispatched in a sealed envelope, save for the one sent by the applicant to the Court on 13 November 2003. That letter, by mistake, had been sent to the Supreme Court of the Russian Federation as the applicant had indicated that it was to be sent to the “last judicial instance”. On 18 November 2003 the head of the detention facility had asked the President of the Supreme Court to return the applicant’s letter immediately. On the following day the letter had been sent to the Court. The applicant, against his signature, had been informed about the delay in its dispatch. The Government provided the Court with extracts from the correspondence logs of the detention facilities, the letter of the head of the detention facility to the Supreme Court, and the letter to the European Court of Human Rights, showing that the applicant’s letter of 13 November 2003 had been dispatched on 19 November 2003 and that the applicant had been duly informed about the delay.
32. In December 2005 the applicant complained to the Service about the seizure of the attachments to his letter of 28 November 2002. By a letter of 28 December 2005 the Service informed him that it was no longer possible to establish the fact of the loss of the attachments, let alone which officials could have been responsible.
33. The applicant lodged a similar complaint with the Sakha (Yakutiya) Republican Prosecutor, seeking institution of criminal proceedings against the employees of the Service. By a decision of 27 March 2006 the request was dismissed, as the prosecutor found that there was no evidence in support of the applicant’s allegations.
34. Between the date of the applicant’s first letter to the Court in April 2002 and the communication of the case to the Government, the Court received more than twenty-five letters from the applicant, including the twenty letters mentioned by the Government. Almost every letter arrived with voluminous enclosures. On 20 January 2004 it received the applicant’s letter of 13 November 2003. On 10 March 2005 the applicant provided the Court with copies of the two court decisions requested by it on 16 December 2004.
35. The relevant provisions of the domestic and international law on health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011.
NON_VIOLATED_ARTICLES: 2
34
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-84733
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KUBIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 4. The applicant was born in 1967 and lives in Ziębice.
5. On 23 January 2001 the applicant was arrested by the police on suspicion of having committed several burglaries.
6. On 26 January 2001 the Ząbkowice Śląskie District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the offences in question. It further considered that there was a fear that he would induce witnesses to give false testimony or would otherwise obstruct the proper course of the proceedings. It also stressed that a heavy penalty might be imposed on him.
7. On 15 February 2001, following an appeal by the applicant, the Świdnica Regional Court (Sąd Okręgowy) upheld that decision.
8. His further appeals against decisions extending his detention and all his subsequent, repeated applications for release were also unsuccessful. In his applications and appeals, he maintained that, given his bad health, detention was putting a severe strain on him. He also relied on his family's situation.
9. On 20 February 2001 the Ząbkowice Śląskie District Prosecutor (Prokurator Rejonowy) refused the applicant's motion for release as unsubstantiated. His appeal against the decision was to no avail.
10. On 22 March 2001 the applicant was indicted before the Ząbkowice Śląskie District Court. He was charged with fifteen counts of attempted or actual burglary and three counts of receiving stolen goods. The bill of indictment concerned four defendants. In all, fifty-two charges were brought against them. The prosecution asked the court to hear evidence from some forty-seven witnesses.
11. On 23 March 2001 the applicant lodged with the Ząbkowice Śląskie District Court an application for release. He relied on his family situation.
12. On 26 March 2001 the Ząbkowice Śląskie District Court refused the applicant's application. The court stated that the reasons for his detention were still valid and that there was a fear that the applicant would attempt to influence witnesses or co-defendants. It referred to the likelihood that a severe penalty would be imposed on the applicant, as he had been charged with an offence attracting a statutory maximum sentence of at least 8 years' imprisonment. The court did not accept the applicant's argument that since the date of his arrest his children had been living below the poverty line. It observed that the applicant's wife had a job and a steady income.
13. On 10 April 2001 the Ząbkowice Śląskie District Court asked the director of the detention centre where the applicant was being held for an opinion concerning the applicant's state of health.
14. On 17 April 2001 the applicant lodged a motion to hear evidence from seven witnesses.
15. On 18 April 2001 the authorities of the Kłodzko Detention Centre stated that the applicant could be held in detention and that his detention did not impose any threat to his health.
16. On 19 April 2001 the Ząbkowice Śląskie District Court extended the applicant's detention until 23 July 2001. The court gave the following reasons for its decision:
“The reasons for his [the applicant's] detention are still valid. There is still a fear that he will attempt to influence [witnesses or co-defendants]; in addition there is a likelihood that a severe penalty will be imposed on the [applicant], because he has been charged with an offence for which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment. Special reasons to the contrary, as referred to in Article 259 of the CCP [Code of Criminal Procedure], have not been found in the case. The possibility of applying another preventive measure could be reconsidered when information from the Kłodzko Detention Centre on his [the applicant's] health has been obtained”.
17. On 11 May 2001 the Świdnica Regional Court, upon the applicant's appeal, upheld the decision of 19 April 2001. It repeated the grounds previously given for the applicant's detention. It stated that according to the information obtained from the Deputy Director of the Kłodzko Detention Centre the applicant had been examined by a doctor and would be examined in the near future by a urologist. It further pointed out that the applicant's health was not an impediment to his continued detention.
18. During the court proceedings the authorities extended the applicant's detention on many occasions.
19. The relevant decisions were given on the following dates.
20. On 17 July 2001 the Ząbkowice Śląskie District Court extended the applicant's detention until 23 October 2001. The court gave the following reasons for its decision:
“The reasons for his [the applicant's] detention are still valid; at the present stage of the criminal proceedings, and taking into account the attitude of [the applicant] and the evidence obtained, there still exists a justified fear that [the applicant] may, in view of the likelihood that a severe penalty will be imposed on him, attempt to obstruct the proper course of proceedings by unlawful means, inter alia, by attempts to induce [witnesses or co-defendants] to give false testimony; taking into consideration that none of the grounds for release, as referred to in Article 259 of the CCP [Code of Criminal Procedure], are present in the case and that any other less severe preventive measure will not guarantee the proper conduct of the proceedings, the court has decided as above.”
21. A subsequent decision was taken by the Ząbkowice Śląskie District Court on 15 October 2001. It extended the applicant's detention until 23 January 2002. On 22 January 2002 his detention was extended until 23 April 2002. The next decision was given on 22 April 2002, extending the applicant's detention until 23 July 2002. It was followed by a decision of 19 July 2002 whereby the Ząbkowice Śląskie District Court extended his detention until 23 October 2002. In all those decisions, the Ząbkowice Śląskie District Court relied on the grounds previously given for the applicant's detention and repeated the wording of its decision given on 17 July 2001.
22. It appears that during the first-instance proceedings the Ząbkowice Śląskie District Court held 13 hearings, two of which had to be cancelled because of the absence of a defence lawyer and witnesses. At the hearing held on 25 February 2002 the court heard evidence from twenty-three witnesses.
23. All the applicant's appeals and applications for release lodged in the meantime were to no avail.
24. In the meantime, on 14 August 2001 the Świdnica Regional Court, having regard to a medical certificate dated 6 August 2001, dismissed the applicant's appeal against the decision of the Ząbkowice Śląskie District Court of 17 July 2001. The court repeated the grounds given in the decision of the first-instance court. It also stated that the applicant had access to appropriate medical care in detention.
25. On 12 February 2002, the Świdnica Regional Court dismissed the applicant's request for release on health grounds, finding his complaints about his deteriorating health to be unsubstantiated. It stated that his medical records had been examined and his allegations did not find any support in the information contained therein.
26. On 20 March 2002 the Ząbkowice Śląskie District Court again dismissed the applicant's request for release on health grounds. It emphasised that on numerous occasions the applicant's health had been examined and it was found to be compatible with his continued detention.
27. On 6 September 2002 the Ząbkowice Śląskie District Court gave judgment. The applicant was convicted as charged. He was sentenced to 6 years' imprisonment. The applicant appealed. His detention was subsequently extended on two occasions.
28. On 22 October 2002 the Ząbkowice Śląskie District Court extended the applicant's detention until 23 January 2003. It relied on the grounds previously given.
29. On 16 January 2003 the Świdnica Regional Court extended the applicant's detention until 23 April 2003.
30. On 4 March 2003 the Świdnica Regional Court quashed the firstinstance judgment and remitted the case.
31. On 18 April 2003 the Ząbkowice Śląskie District Court decided to extend the applicant's detention until 23 July 2003. It relied on the grounds previously given and the need to re-examine the evidence.
32. On 27 May and 17 June 2003 the Ząbkowice Śląskie District Court held hearings.
33. On 8 July 2003 the Ząbkowice Śląskie District Court convicted the applicant as charged. He was sentenced to 6 years' imprisonment. The applicant appealed.
34. On 18 July 2003 the Ząbkowice Śląskie District Court further extended the applicant's detention until 23 October 2003. The next decision was given on 22 October 2003 whereby the court extended his detention until 23 January 2004. The court reiterated the grounds originally given for his detention.
35. On 23 December 2003 the Świdnica Regional Court heard the appeal, quashed the first-instance judgment and remitted the case.
36. On the same day the Świdnica Regional Court released the applicant from detention.
37. On 1 March, 23 March and 20 April 2004 the Ząbkowice Śląskie District Court held hearings.
38. On 11 May 2004 the Ząbkowice Śląskie District Court gave judgment. It again convicted the applicant as originally charged and sentenced him to 6 years' imprisonment.
39. On 9 June 2004 the applicant appealed.
40. On 14 January and 10 May 2005 the Świdnica Regional Court held hearings on the applicant's appeal.
41. On 10 May 2005 the Świdnica Regional Court gave judgment and reduced his sentence to 4 years' imprisonment.
42. The applicant did not lodge a cassation appeal.
43. The relevant domestic law and practice concerning the imposition of detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are described in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-99802
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VACHKOVI v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1937 and 1935 respectively and live in Sofia.
6. Between 1995 and 1998 two sets of criminal proceedings for car theft, illegal possession of arms and robbery were opened against their son, Mr Gancho Vachkov, born in 1971. In 1996 a warrant for his arrest was issued and his name was placed on the list of wanted suspects. In May 1998 the police published a call for information about him.
7. On the afternoon of 6 June 1999, a Sunday, Mr Gancho Vachkov and friends of his were playing football in a school playground in central Sofia. At one point Mr Vachkov found out that the police had located him and were watching him. He decided to leave the place and drove away at high speed. He was accompanied by Mr A.M. A police car followed his car.
8. During the ensuing chase through the streets of Sofia, Mr Gancho Vachkov or Mr A.M. opened fire on the police with an automatic weapon. The police fired back and after some time managed to shoot out the tyres of Mr Vachkov’s car. Mr Vachkov and Mr A.M. abandoned the car and started running. Apparently the exchange of gunfire continued. Mr Vachkov and Mr A.M. split up as the latter had been shot in the leg. Shortly after that Mr A.M. was caught by the police.
9. Mr Gancho Vachkov continued to run, followed by the police. He entered a building situated on Murphy Street, in a residential area of Sofia, and went up the staircase of the building to the top floor. The police sealed off the area, urging the inhabitants to stay in their homes. Several masked police officers entered the building. Gunfire was heard. Thereafter, Mr Gancho Vachkov was taken out of the building by police officers, who were still masked. He had been shot in the head but was still alive. His hands were tied behind his back.
10. He was taken to a hospital, where he died later that day.
11. A masked officer took out of the building a handgun wrapped in a cloth and handed it over to the police officers who were standing around after the incident. The weapon was later identified as a “PSM handgun”, calibre 5.45 mm. In the early hours of 7 June 1999 it was delivered by a police officer to an investigator on duty in the hospital where Mr Gancho Vachkov had been taken.
12. Subsequently it was established that the masked officers who had followed Mr Gancho Vachkov in the building and had directly participated in his arrest were from the Special Anti-Terrorism Squad (Специализиран отряд за борба с тероризма, “the SATS”) of the Ministry of Internal Affairs. They were not under the command of the police forces who had participated in the earlier stages of Mr Vachkov’s chase.
13. A criminal investigation of the events was opened on 6 June 1999.
14. On the same day an on-site inspection was carried out at the staircase of the building on Murphy Street. The record stated that the site had not been preserved. Traces of blood and body tissue were found at the site, as well as a number of cartridge shells, metal splinters and projectiles.
15. Mr Gancho Vachkov’s abandoned car was inspected on the same day. The inspection established that the car’s front left tyre was torn and flat and the rear left tyre was flat as well. The rear window was broken and marked by bullets. On the front seats the police found a Kalashnikov automatic rifle and numerous cartridge shells. In the boot they found munitions and false passports.
16. A Makarov handgun was found on the street in the area around the car.
17. A post-mortem examination of Mr Gancho Vachkov’s body was performed by three medical doctors on the morning of 7 June 1999. They found entrance and exit wounds to the head and concluded that the death had been caused by cranio-cerebral trauma. The entrance wound, with an opening six millimetres in diameter, was in the right temple. The exit wound was in the left temple, with an opening measuring fifteen to eight millimetres. The doctors concluded that the fatal shot had been fired at “immediate range”. They described numerous bruises and evidence of haemorrhage on Mr Gancho Vachkov’s head and limbs which, in their view, were unrelated to the cause of death and seemed to have been caused within a short space of time.
18. Laboratory tests showed that there were no traces of alcohol or narcotic substances in Mr Gancho Vachkov’s blood.
19. A second autopsy was carried out at the applicants’ request on 11 June 1999. The report was drawn up in September 1999. The experts confirmed that the lethal shot had been fired at very close range. According to them, as the entry opening in the right temple measured eight to six millimetres, the shot had been produced by a weapon whose calibre did not exceed seven millimetres. This might have been a PSM handgun. The experts confirmed that there were numerous bruises and contusions on Mr Gancho Vachkov’s head, face and limbs, which had probably been caused by blunt objects. They noted bruises on the wrists which, in their view, might have been caused by handcuffs.
20. On 24 June 1999 another expert who examined the relevant part of the skin from Mr Gancho Vachkov’s right temple, concluded that the fatal wound had been caused by a firearm fired at very close range. It was “possible” that this was a PSM handgun.
21. On 12 and 14 July 1999 ballistic experts examined the PSM handgun allegedly found at the site where Mr Gancho Vachkov had been shot, and the cartridge shells and projectiles also found there. They concluded that three of the shells had been fired by the PSM handgun. Another fourteen cartridge shells found on the spot had been fired by one and the same weapon, a 9 mm calibre Parabelum.
22. A medical report of an unspecified date concluded that the blood found at the site where Mr Gancho Vachkov had been shot might have been his.
23. Residents of the building on Murphy Street were interviewed on 6 and 10 June 1999. Mr A.H., Mrs B.H. and Ms M.H. explained that they had seen masked police officers who had instructed them to stay in the bathroom of their apartment. Thereafter, they had heard several gunshots, not consecutively, and then two more powerful shots. After that it had become quiet. They had come out of the apartment and seen bloodstains on the landing. Some time later Mrs B.H. and Ms M.H. washed the blood off. Police officers who had arrived later to inspect the site had told them that they should not have done this.
24. In her testimony, Ms M.H. stated in addition that she had heard the police officers urge Mr Gancho Vachkov to surrender.
25. Mr A.M. was interviewed on 11 June 1999. He explained that he and Mr Gancho Vachkov had been acquaintances and that on 6 June 1999 the latter had been giving him a lift home when he had noticed that the police were following him. During the chase Mr Gancho Vachkov had given Mr A.M. a Kalashnikov automatic rifle and insisted he open fire on the police; when Mr A.M. refused Mr Gancho Vachkov shot him in the leg. After that Mr Gancho Vachkov had himself started shooting at the police while driving. When the two abandoned the car, Mr A.M. was not able to run, due to the injury to his leg, and was soon caught by the police and taken to hospital.
26. Mrs L.G., interviewed on 21 June 1999, explained that she had seen from the balcony of her apartment two young men running. Only one of them had had a weapon; later on she had seen him being led away by the police. They had been chased by other men, all of whom were armed. Mr S.V., also interviewed on 21 June 1999, had also seen the two young men running. According to him, none of them were armed.
27. In the course of the investigation the authorities questioned a number of protected witnesses, whose anonymity was preserved in accordance with Article 97a of the Code of Criminal Procedure (see paragraph 52 below), including police officers involved in the chase in the streets of Sofia, but not those from the SATS who had been the last to be in contact with the applicants’ son in the building on Murphy Street.
28. On 24 June 1999 protected witness no. 33 said that she had seen Mr Gancho Vachkov enter the courtyard of the building on Murphy Street, armed with a handgun.
29. Protected witness no. 333, a senior police officer who had been in charge of Mr Gancho Vachkov’s chase, but had not been involved in the events inside the building on Murphy Street, was interviewed on 25 June 1999 and explained that the arrest operation had been planned in advance. On 15 September 1999 he explained that he did not know the identities of the SATS masked officers who had been in the building as they enjoyed a special status.
30. Other witnesses interviewed during the investigation described what they had seen of the car chase in the city and outside the building on Murphy Street.
31. The SATS officers who had followed Mr Gancho Vachkov into the building were never identified or questioned. In a letter dated 10 June 1999 and addressed to the Ministry of Internal Affairs the prosecutor in charge of the case requested their names. He undertook to protect their identities in accordance with Article 97a of the Code of Criminal Procedure (see paragraph 52 below). The reply, signed by the head of the National Police Service, was dated 15 July 1999. It contained information on the police operation of 6 June 1999, but did not mention the names of the officers in question.
32. On 30 August 1999 the investigator in charge appointed an expert in psychiatry to assess Mr Gancho Vachkov’s mental state during the last hours of his life. The expert, who submitted her report on an unspecified date, noted that Mr Gancho Vachkov had no record of mental problems or indeed any particular health problem. However, there were reasons to believe that he had displayed the major symptoms of a “dissociative personality disorder”. Furthermore, according to the expert, in the “extremely tense and psychologically strained situation” when he was surrounded by the police
“it is possible that he attempted suicide as an impulsive reaction, seeking a solution to the situation without considering possible alternatives”.
33. On 17 September 1999 the evidence collected in the case was presented to the applicants, who were given the opportunity to familiarise themselves with it and make any remarks and objections. The first applicant stated that she disagreed with the findings of the psychiatric expert report.
34. On 21 September 1999 a prosecutor from the Sofia military regional prosecutor’s office discontinued the criminal proceedings. He found that no offence had been committed in relation to Mr Gancho Vachkov’s death and that the immediate cause of his death was suicide, committed with the PSM handgun allegedly found on the spot. Furthermore, he noted that:
“The actions of the [police officers] during [Mr Gancho] Vachkov’s chase and arrest were a direct response to the actions and the behaviour of [Mr] Gancho Vachkov and [Mr A.M.], which were in flagrant violation of public order and threatened public security. [...] In the case, the [police officers] did not exceed their powers and their actions did not exceed what was necessary and lawful within the meaning of [Article 12a] of the Criminal Code.”
35. On 7 July 2000 the applicants appealed against the discontinuance, arguing that the investigation had been flawed. They pointed out that the authorities had failed to question the police officers directly involved in the arrest of their son. Furthermore, no evidence establishing a link between their son and the PSM handgun had been gathered and no plausible explanation had been given for the other injuries on his body. Also, the wording of the decision of 21 September 1999 did not make it clear whether the prosecutor accepted that their son had been shot but the shooting was lawful under Article 12a of the Criminal Code, or considered that their son had committed suicide.
36. On 12 February 2001 a prosecutor from the military appellate prosecutor’s office dismissed the appeal. He found that the police officers who had followed Mr Gancho Vachkov into the building on Murphy Street had rightly not been questioned; they enjoyed “a special status” and the disclosure of their identities was not warranted, since sufficient other evidence had been collected to establish the relevant facts. The prosecutor reiterated the conclusion that Mr Vachkov had committed suicide and dismissed the argument that the bruises and contusions on his body had remained unexplained, stating that the post-mortem reports had provided sufficient explanation.
37. On 5 March 2001 the applicants appealed to the Chief Public Prosecutor’s Office. They pointed out that no rules of criminal procedure exempted police officers from the duty to testify and that, furthermore, Article 97a of the Code of Criminal Procedure provided for the questioning of protected witnesses. The applicants claimed once again that the authorities had failed to establish the timing and origin of the numerous injuries on their son’s body.
38. In a letter accompanying the appeal the applicants referred to Article 237 of the Code of Criminal Procedure (see paragraph 49 below) and requested that in the event of a dismissal of the appeal the case file be forwarded to the appropriate court.
39. On 22 March 2001 a prosecutor from the Chief Public Prosecutor’s Office dismissed the appeal without commenting on the applicants’ argument that the police officers involved had not been identified or questioned. He considered that in his decision of 21 September 1999 (see paragraph 34 above) the prosecutor from the Sofia military regional prosecutor’s office had rightly relied on Article 12a of the Criminal Code and that, in addition, it had been clearly established that Mr Gancho Vachkov had committed suicide. Furthermore, he considered that the bruises on Mr Vachkov’s body had been the result of the violent chase preceding his arrest, as he had climbed fences and gone through bushes. Furthermore, none of the witnesses living in the building had heard sounds indicating that Mr Gancho Vachkov might have been beaten by the police officers.
40. The decision did not mention the applicants’ request for the case file to be forwarded to the appropriate court. Instead, it stated that the file should be sent back to the Sofia military regional prosecutor’s office.
41. In a letter of 28 March 2001 the applicants insisted again that the file be transmitted for review by the courts, pursuant to Article 237 of the Code of Criminal Procedure.
42. On 29 June 2001 a prosecutor from the Chief Public Prosecutor’s Office dismissed the request. In his view, there were no grounds for forwarding the case file to a court, since the decision of the Sofia military regional prosecutor’s office of 21 September 1999 had become final as early as 28 September 1999, after the applicants had failed to appeal to the military appellate prosecutor’s office within seven days. The provisions requiring the forwarding of the case file to the appropriate court had entered into force on 1 January 2000, by which date the decision to discontinue the proceedings had already become final.
43. On 17 July 2001 the applicants lodged a complaint with the Chief Public Prosecutor. They stated that the file did not contain information on the date when they had received the decision of 21 September 1999, and that the prosecuting authorities had the duty to examine any complaint containing information that a serious offence might have been committed.
44. No reply to that complaint was ever received.
45. Article 115 of the 1968 Criminal Code provides that murder is punishable by ten to twenty years’ imprisonment. By Article 116 § 1 (2) of the Code, if a murder is committed by a police officer in the course of or in connection with the performance of his or her duties, it is punishable by fifteen to twenty years’ imprisonment, or life imprisonment, with or without parole. By Article 124 § 1 of the Code, where death occurs as a result of wilfully inflicted grievous bodily harm, the punishment is three to twelve years’ imprisonment. Those offences are publicly prosecutable.
46. Article 192 §§ 1 and 2 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could be initiated only by a prosecutor or an investigator. By Article 20 of the Code, read in conjunction with its Articles 186-91, those authorities were under an obligation to initiate a preliminary inquiry or institute proceedings and investigate, where they have been informed of facts or events on the basis of which a reasonable supposition could be made that a criminal offence may have been committed.
47. The remaining relevant provisions of the Criminal Code and the Code of Criminal Procedure related to the duty to investigate death and to the competences of the relevant authorities have been summarised in the Court’s judgment in the case of Ognyanova and Choban v. Bulgaria, no. 46317/99, §§ 65 and 6971, 23 February 2006).
48. Article 12a of the Criminal Code, added in August 1997, provides that causing harm to a person while arresting them for an offence is not punishable where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary.
49. Article 237 § 6 of the 1974 Code of Criminal Procedure, as worded until the end of 1999, provided that the discontinuance of a preliminary investigation could be challenged before a more senior prosecutor within a seven-day period. The period ran from the date of receipt of the decision by the person concerned. No judicial review was provided for.
50. On 1 January 2000 that Article was amended to provide for a system of automatic control of the discontinuance: after the discontinuance the prosecutor had to send the file and his decision to the immediately superior prosecutor’s office, which could confirm, modify or quash it. If it confirmed the decision, it had to forward the file to the appropriate court, which had to review the matter in private. The court’s decision was final. No provision was made for those concerned to be notified of the discontinuance.
51. Following a further amendment of that Article in May 2001, the discontinuance of preliminary investigations became subject to judicial review. The 2005 Code of Criminal Procedure maintained that position, in Article 243 §§ 37.
52. Article 97a of the 1974 Code of Criminal Procedure provided for the protection of witnesses who might be at risk. The prosecuting authorities or the courts could decide to preserve the witnesses’ anonymity and make orders for their security. Protected witnesses had to be questioned in secret. Their identity could only be known to the prosecuting authorities, the courts, and to the witnesses’ legal representatives.
53. Under the 1997 Ministry of Internal Affairs Act, in force from 1997 to 2006, the Special AntiTerrorism Squad (“the SATS”) was a specialised service of the Ministry of Internal Affairs for combating terrorism, protecting strategic objects and participating in the prevention and investigation of crimes. By section 159(3) of the Act, “in the performance of the SATS’ tasks, the identity of its members [was] to be kept secret”.
VIOLATED_ARTICLES: 2


ITEMID: 001-60877
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF S.L. v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1981 and lives in Bad Gastein (Austria).
9. At about the age of eleven or twelve the applicant began to be aware of his sexual orientation. While other boys were attracted by women, he realised that he was emotionally and sexually attracted by men, in particular by men who are older than himself. At the age of fifteen he was sure of his homosexuality.
10. The applicant submits that he lives in a rural area where homosexuality is still taboo. He suffers from the fact that he cannot live his homosexuality openly and - until he reached the age of eighteen - could not enter into any fulfilling sexual relationship with an adult partner for fear of exposing that person to criminal prosecution under Article 209 of the Criminal Code (Strafgesetzbuch), of being obliged to testify as a witness on the most intimate aspects of his private life and of being stigmatised by society should his sexual orientation become known.
11. Any sexual acts with persons under fourteen years of age are punishable under Articles 206 and 207 of the Criminal Code.
12. Article 209 of the Criminal Code, in the version in force at the material time, read as follows:
“A male person who after attaining the age of nineteen fornicates with a person of the same sex who has attained the age of fourteen years but not the age of eighteen years shall be sentenced to imprisonment for between six months and five years.”
13. This provision was aimed at consensual homosexual acts, as any sexual act of adults with persons up to nineteen years of age are punishable under Article 212 of the Criminal Code if the adult abuses a position of authority (parent, employer, teacher, doctor, etc.). Any sexual acts involving the use of force or threats are punishable as rape, pursuant to Article 201, or sexual coercion pursuant to Article 202 of the Criminal Code. Consensual heterosexual or lesbian acts between adults and persons over fourteen years of age are not punishable.
14. Offences under Article 209 were regularly prosecuted, an average of sixty criminal proceedings being opened per year, out of which a third resulted in a conviction. As regards the penalties applied, a term of imprisonment usually exceeding three months was imposed in 65 to 75% of the cases, of which 15 to 25% were not suspended on probation. According to information given by the Federal Minister for Justice in reply to a parliamentary request, in the year 2001 three persons were serving a term of imprisonment based only or mainly on a conviction under Article 209 of the Criminal Code and four others were held in detention on remand in proceedings relating exclusively to charges under Article 209.
15. On 10 July 2002, following the Constitutional Court's judgment of 21 June 2002 (see below), Parliament decided to repeal Article 209 of the Criminal Code. In addition, it introduced Article 207b of the Criminal Code, which penalises sexual acts with a person under sixteen years of age if that person is for certain reasons not mature enough to understand the meaning of the act and the offender takes advantage of this immaturity or if the person under sixteen years of age is in a predicament and the offender takes advantage of that situation. Further Article 207b penalises inducing persons under eighteen years of age to engage in sexual activities by payment. Article 207b applies irrespective of whether the sexual acts at issue are heterosexual, homosexual or lesbian. The above amendment, published in the Official Gazette (Bundesgesetzblatt) no. 134/2002, entered into force on 14 August 2002.
16. In a judgment of 3 October 1989, the Constitutional Court found that Article 209 of the Criminal Code was compatible with the principle of equality under constitutional law and in particular with the prohibition on gender discrimination contained therein. That judgment was given upon the complaint of a person who subsequently brought his case before the Commission (Z. v. Austria, no. 17279/90, Commission decision of 13 May 1992, unreported).
17. The relevant passage of the Constitutional Court's judgment reads as follows:
“The development of the criminal law in the last few decades has shown that the legislature is striving to apply the system of criminal justice in a significantly more restrictive way than before in pursuance of the efforts it is undertaking in connection with its policy on the treatment of offenders, which have become known under the general heading of "decriminalisation". This means that it leaves offences on the statute book or creates new offences only if such punishment of behaviour harmful to society is still found absolutely necessary and indispensable after the strictest criteria have been applied. The criminal provision which has been challenged is included in the group of acts considered unlawful in order to protect - to an extent thought to be unavoidable - a young, maturing person from developing sexually in the wrong way. ('Homosexual acts are only offences of relevance to the criminal law inasmuch as a dangerous strain must not be placed by homosexual experiences upon the sexual development of young males ...' Pallin in Foregger/Nowakowski (publishers), Vienna commentary to the Criminal Code, 1980, para. 1 on Article 209 ...). Seen in this light, it is the conviction of the Constitutional Court that from the point of view of the principle of equality contained in section 7 para. 1 of the Federal Constitutional Law and section 2 of the Basic Constitutional Act those legislating on the criminal law cannot reasonably be challenged for taking the view, by reference to authoritative expert opinions coupled with experience gained, that homosexual influence endangers maturing males to a significantly greater extent than girls of the same age, and concluding that it is necessary to punish under the criminal law homosexual acts committed with young males, as provided for under Article 209 of the Penal Code. This conclusion was also based on their views of morality, which they wanted to impose while duly observing the current policy on criminal justice which aims at moderation and at restricting the punishment of offences (while carefully weighing up all the manifold advantages and disadvantages). Taking everything into account, we are dealing here with a distinction which is based on factual differences and therefore constitutionally admissible from the point of view of section 7 para. 1 of the Federal Constitutional Law, in conjunction with section 2 of the Basic Constitutional Act.”
18. On 29 November 2001 the Constitutional Court dismissed the Innsbruck Regional Court's request to review the constitutionality of Article 209 of the Criminal Code.
19. The Regional Court had argued, inter alia, that Article 209 violated Articles 8 and 14 of the Convention as the theory that male adolescents ran a risk of being recruited into homosexuality on which the Constitutional Court had relied in its previous judgment, had since been refuted. The Constitutional Court found that the issue was res judicata. It noted that the fact that it had already given a ruling on the same provision did not prevent it from reviewing it anew, if there was a change in the relevant circumstances or different legal argument. However, the Regional Court had failed to give detailed reasons for its contention that relevant scientific knowledge had changed to such an extent that the legislator was no longer entitled to set a different age limit for consensual homosexual relations than for consensual heterosexual or lesbian relations.
20. On 21 June 2002, upon a further request for review made by the Innsbruck Regional Court, the Constitutional Court found that Article 209 Criminal Code was unconstitutional.
21. The Regional Court had argued, firstly, as it had done previously, that Article 209 of the Criminal Code violated Articles 8 and 14 of the Convention and, secondly, that it was incompatible with the principle of equality under constitutional law and with Article 8 of the Convention, as a relationship between male adolescents between fourteen and nineteen years of age was first legal, but became punishable as soon as one reached the age of nineteen and became legal again when the second one reached the age of eighteen. The Constitutional Court held that the second argument differed from the arguments which it had examined in its judgment of 3 October 1989 and that it was therefore not prevented from considering it. It noted that Article 209 concerned only consensual homosexual relations between men aged over nineteen and adolescents between fourteen and eighteen years of age. In the fourteen-to nineteen-year age bracket homosexual acts between persons of the same age (for instance two sixteen-year-olds) or of persons with a one-to five-year age difference were not punishable. However, as soon as one partner reached the age of nineteen, such acts constituted an offence under Article 209 of the Criminal Code. They became legal again when the younger partner reached the age of eighteen. Given that Article 209 did not only apply to occasional relations but also covered ongoing relationships, it led to rather absurd results, namely a change of periods during which the homosexual relationship of two partners was first legal, than punishable and then legal again and could therefore not be considered to be objectively justified.
22. In the spring of 1995 the Social Democratic Party, the Green Party and the Liberal Party brought motions in Parliament to repeal Article 209 of the Criminal Code. They argued in particular that the legislator in the 1970s had justified this provision on the theory that male adolescents were at a risk of being recruited into homosexuality while female adolescents were not. However, modern science had shown that sexual orientation was already established at the beginning of puberty. Moreover, different ages of consent were not in line with European standards. In this respect they referred in particular to Recommendation 924/1981 of the Parliamentary Assembly of the Council of Europe which had advocated equal ages of consent for heterosexual and homosexual relations. Protection of juveniles against sexual violence and abuse was sufficiently afforded by other provisions of the Criminal Code, irrespective of their sexual orientation.
23. Subsequently, on 10 October 1995, a sub-committee of the Legal Affairs Committee of Parliament heard evidence from eleven experts in various fields such as medicine, sexual science, AIDS prevention, developmental psychology, psychotherapy, psychiatry, theology, law and human-rights law. Nine were clearly in favour of repealing Article 209, an important argument for the experts in the fields of medicine, psychology and psychiatry being that sexual orientation was, in the majority of cases, established before the age of puberty, which disproved the theory that male adolescents were recruited into homosexuality by homosexual experiences. Another recurring argument was that penalising homosexual relations made AIDS prevention more difficult. Two experts were in favour of keeping Article 209: one simply stated that he considered it necessary for the protection of male adolescents; the other considered that despite the fact that there was no such thing as being recruited into homosexuality, not all male adolescents were already sure of their sexual orientation and it was therefore better to give them more time to establish their identity.
24. On 27 November 1996 Parliament held a debate on the motion to repeal Article 209 of the Criminal Code. Those speakers who were in favour of repealing Article 209 relied on the arguments of the majority of the experts heard in the sub-committee. Of those speakers who were in favour of keeping Article 209, some simply expressed their approval while others emphasised that they still considered the provision necessary for those male adolescents who were not sure of their sexual orientation. There was an equal vote at the close of the debate (91 to 91). Consequently, Article 209 remained on the statute book.
25. On 17 July 1998 the Green Party again brought a motion before Parliament to repeal Article 209 of the Criminal Code. The ensuing debate followed much the same lines as before. The motion was rejected by 81 votes to 12.
26. On 10 July 2002 Parliament decided to repeal Article 209 of the Criminal Code (see paragraph 15 above).
VIOLATED_ARTICLES: 14
8


ITEMID: 001-61765
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CIBIR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 4. The applicant lives in Ankara.
5. On 20 April 1992 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicant in Mamak, Ankara. A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place.
6. Following the applicant’s request for increased compensation, the Ankara First Instance Court awarded him 2,033,884,335 Turkish liras (TRL) of additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 29 August 1995 was fixed by the domestic court for the running of the statutory rate of interest.
7. On 30 March 1998, upon the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 25 December 1998 the administration paid the applicant TRL 4,449,000,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the running date of the interest and 31 December 1997, namely 30%. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%.
8. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-68817
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MATTICK v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Horst Werner Mattick, is a German national who was born in 1945 and is currently detained in the Straubing correctional facility (Justizvollzugsanstalt). He was represented before the Court by Mr O. Schmidl, a lawyer practising in Regensburg.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 November 1998 the applicant was remanded in custody (vorläufig festgenommen) on suspicion of attempted homicide. On 24 November 1998 he was placed in pre-trial detention on the basis of an arrest warrant issued by the Deggendorf District Court on the same day.
On 24 March 1999, at the public prosecutor’s request, W., a physician, gave an initial psychiatric expert opinion on the applicant, stating that the requirements of Article 21 of the German Criminal Code (diminished criminal liability – verminderte Schuldfähigkeit) were met. However, he further stated that the requirements of Article 64 of the Criminal Code (placement in an alcohol detoxification clinic – Unterbringung in einer Entziehungsanstalt) were not fulfilled.
On 20 April 1999 the Deggendorf public prosecutor’s office issued a bill of indictment indicating that, on account of his previous convictions, the applicant met the requirements for placement in compulsory confinement (Sicherungsverwahrung) under Article 66 of the German Criminal Code (see “Relevant domestic law” below).
On 19 May 1999 the applicant’s defence counsel requested access to the applicant’s present and previous case files in order to prepare his defence. He stated that, in view of the applicant’s possible placement in compulsory confinement, it was necessary to have access to the case files relating to his previous convictions. Furthermore, he requested an expert opinion on the question whether the requirements of Article 66 of the Criminal Code regarding compulsory confinement were met in the applicant’s case.
On 17 May 1999 the Deggendorf Regional Court opened the main proceedings (Eröffnung des Hauptverfahrens).
On 26 May 1999 it granted the defence counsel access to the file concerning the present case as well as those concerning two previous convictions. The defence counsel received those files on 2 June 1999.
On 2 June 1999 the Deggendorf Regional Court set the case down for hearing on 1 July 1999 and summoned witnesses and W. to appear on that date.
On 7 June 1999 the public prosecutor’s office asked for an expert opinion on the question whether the requirements of Article 66 of the Criminal Code were met.
On 15 June 1999 the Regional Court requested the case files regarding the applicant’s previous twenty convictions. The court received only eight of these files, five of which contained only the judgments (Strafurteile) or sentence orders (Strafbefehle), but no other documents. The court was unable to obtain the other case files. On the same day the public prosecutor’s office requested a supplementary expert opinion on the question whether the requirements for placement in compulsory confinement were met.
On 21 June 1999 W. submitted his expert opinion to the public prosecutor’s office. On 28 June 1999 the defence counsel received a copy. It comprised only seven pages, two of which were dedicated to the expert’s conclusion that the requirements of Article 66 of the Criminal Code were met. On the same day, 28 June 1999, the applicant’s defence counsel also received the case files relating to the eight previous convictions.
On 1 July 1999 the defence counsel requested the adjournment of the trial (Aussetzung des Verfahrens), relying on Article 6 § 3 (b) of the Convention. He argued that he had not had enough time to prepare the applicant’s defence. The court rejected his request, stating that the defence counsel had known since the bill of indictment had been served that the issue of compulsory confinement would form the subject matter of the trial. Furthermore, it observed that there had been no change of circumstances (Sachlage) that might have justified an adjournment in accordance with Article 265, paragraph (4), of the German Code of Criminal Procedure. It also pointed out that the expert opinion had been ordered at the applicant’s request. The court further noted that the expert’s written submissions had been much less important than his oral remarks during the hearing. The applicant’s defence counsel also requested the taking of further evidence.
The trial was resumed on 8 July 1999. W. delivered his expert opinion and was questioned by the applicant’s defence counsel. On a motion by the defence counsel, the court ordered a supplementary psychological expert assessment, to be carried out by a second expert, T.
On 13 July 1999 the court ordered the two experts to deliver their opinions on 21 July 1999. T. conducted a psychological assessment of the applicant on 14 July 1999 and produced his written opinion on 15 July 1999.
During the last hearing on 21 July 1999, T. gave an oral presentation of his psychological assessment. W. then made supplementary statements regarding his own opinion and T.’s assessment. The applicant’s defence counsel subsequently requested an additional expert opinion. His motion was five pages long and included comments on W.’s opinion. However, the court rejected the request as unnecessary, as it considered the expert’s opinion convincing.
The court then closed the procedure for taking evidence and later delivered its judgment. It convicted the applicant of attempted homicide and of having caused grievous bodily harm by one and the same act (versuchter Totschlag in Tateinheit mit gefährlicher Körperverletzung) and sentenced him to five years and six months’ imprisonment. Moreover, the applicant was placed in compulsory confinement. The court stated that the requirements of Article 66 of the German Criminal Code were met, taking into consideration the applicant’s present and previous convictions. It concluded that the applicant had to be considered dangerous and that placing him in compulsory confinement was a proportionate measure.
On 7 December 1999 the Federal Court of Justice dismissed an appeal on points of law by the applicant.
On 14 February 2000 the Federal Constitutional Court refused to entertain a constitutional appeal by the applicant.
The Dangerous Habitual Offenders Act (Gesetz gegen gefährliche Gewohnheitsverbrecher), which came into force on 24 November 1933, provides for certain correctional and preventive measures (Maβregeln der Besserung und der Sicherung). These measures are not designed as punishment, but rather as an attempt to prevent future offences by reforming the offenders and thus preserving public order.
The measures are governed by Articles 61 et seq. of the Criminal Code. They include placement in a psychiatric hospital, placement in a detoxification clinic (Entziehungsanstalt), compulsory confinement, supervision of conduct (Führungsaufsicht), withdrawal of driving licence and prohibition on practising a certain profession. Article 62 provides that the measure has to be proportionate to the offence committed and to the danger presented by the offender. Paragraph (2) of Article 66 states that an offender may be placed in compulsory confinement if he has committed three intentional offences each of which is punishable by at least one year’s imprisonment and if he has been sentenced to at least three years’ imprisonment for one or more of these acts and poses a threat to public order.
Article 66 reads as follows:
“(1) If a person is convicted of an intentional offence and is sentenced to at least two years’ imprisonment, the court shall place the offender in compulsory confinement in addition to the sentence, if
1. the offender has already been sentenced twice to at least one year’s imprisonment for intentional offences before committing the new offence;
2. the offender has served a prison sentence of at least two years for those previous convictions or has been detained as a correctional or preventive measure; and
3. an assessment of the offender and his offences shows that he poses a threat to the general public owing to his inclination to commit serious offences, in particular those which inflict severe psychological and physical damage on the victims or which cause severe economic damage.
(2) If a person has committed three intentional offences, each of which is punishable by at least one year’s imprisonment, and has been sentenced to at least three years’ imprisonment for one or more of these offences, the court may, under the provision indicated in paragraph (1), point 3, above, place the applicant in compulsory confinement in addition to the sentence even in the absence of a previous conviction or deprivation of liberty (paragraph (1), points 1 and 2, above). ...”
Paragraph (1) of Article 67c reads as follows:
“If a prison sentence is served before placement in compulsory confinement, the court shall examine, towards the end of the sentence being served, whether the aim of the measure still requires placement in compulsory confinement.”
Former Article 67d limited the length of compulsory confinement to ten years. It was amended by the Sixth Criminal Code Amendment Act (Sechstes Gesetz zur Reform des Strafrechts), which came into force on 26 January 1998, and the new Sexual and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten).
Paragraph (3) of the new Article 67d reads as follows:
“After a period of ten years in compulsory confinement has been completed, the court shall declare the measure to be terminated, as long as there is no danger that the detainee will, owing to his inclination to crime, commit further serious offences which would risk inflicting severe psychological and physical damage on the victims. If the measure is considered to have been terminated, the detainee shall be placed under supervision of conduct.”
Section 1a of the Introductory Act to the Criminal Code states that the new Article 67d applies without any temporal limitations, and hence retrospectively. Article 67e states that the court may examine of its own motion at any given time whether the execution of a measure of compulsory confinement could be suspended on probation, but it is required to do so at least every two years.


ITEMID: 001-105004
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SZEL v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1965 and lives in Budapest.
6. Detained at Unit II of the Budapest Correctional Facility from 9 September 2003 until 30 May 2005, the applicant was finally convicted of aggravated murder and sentenced to fifteen years of imprisonment on 20 April 2006 (case no. 1.Bf.931/2005/33).
7. Subsequently he has been detained at Budapest Prison. At this prison, he has spent altogether over 21 months in various cells of 8.3 m2 ground surface (accommodating three inmates, i.e. 2.76 m2 per person), 21 months in various cells of 6.3 m2 ground surface (accommodating two inmates, i.e. 3.15 m2 per person), over 9 months in a 6.3 m2 cell with single occupancy, and 9 months in a cell of 25 m2 ground surface (accommodating eight inmates, i.e. 3.125 m2 per person). In the material period, the average rate of occupancy of Budapest Prison was 150%; the national rate was 132% in October 2007 and 122% in July 2008.
8. The applicant’s complaint about the overcrowding addressed to the prosecutorial authorities in charge of the lawfulness of detention was to no avail. In reply to his similar complaint, the National Headquarters of Penitentiary Institutions admitted in its letter of 23 July 2008 the existence of the problem of overcrowding but pointed out that the prison authorities had no influence on the number of detainees to be held in the penitentiary institutions.
VIOLATED_ARTICLES: 3


ITEMID: 001-69705
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ÇAPLIK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 as regards independence and impartiality;Not necessary to examine the complaints under Arts. 6-1 and 6-2 regarding fairness;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant is a Turkish national, who was born in 1961 and he lives in Adana.
5. On 16 November 1994 F.A. and her son, İ.A., filed a complaint with the gendarmes and submitted that they had received a threatening letter from the PKK. The letter which was written on purple paper and sealed with the symbol of the PKK read: “You have to change your statement concerning our friend or both of you will die.” F.A. and İ.A. stated that they had been summoned to give evidence in connection with an ongoing investigation against certain PKK members. They further maintained that they knew the person who had sent the letter.
6. Accordingly, the gendarme officers initiated an investigation, which led to the arrest of the applicant.
7. On 17 November 1994 the applicant was arrested on suspicion of sending threatening letters on behalf of the PKK. Samples of the applicant's handwriting were taken and sent to the laboratory for examination.
8. The Regional Criminal Police Laboratory compared the handwriting of the applicant to the handwriting on the letter. It concluded that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter.
9. On 18 November 1994 the applicant gave a statement to the gendarmes and denied all the accusations against him. He submitted that he had no connections with the PKK and that he had not written the letter.
10. The same day, he was questioned by the Adana public prosecutor. In his statement to the public prosecutor, he mainly repeated his police statement and denied the charges against him.
11. The applicant was then taken before the Adana Magistrate's Court in Criminal Matters on the same day. He pleaded not guilty before the judge. He denied the allegation that he had carried out activities on behalf of the PKK. He further asserted that his signature which had been used for handwriting analysis had not been taken in accordance with the domestic legislation. After examining the expert report and the applicant's submissions, the court concluded that the sample of the applicant's handwriting which had been used for comparison had not been taken in accordance with the law. It accordingly concluded that there was not sufficient evidence to establish that the applicant had committed the alleged offence and ordered his release.
12. In an indictment dated 26 December 1994, the public prosecutor attached to the Konya State Security Court initiated criminal proceedings against the applicant. He charged him with being a member of an armed gang under Article 168 § 2 of the Criminal Code. He based himself on the report of the Regional Criminal Police Laboratory which had concluded that the applicant's handwriting had similarities with the handwriting on the threatening letter sent to F.A. and İ.A.
13. Before the court, the applicant contested the charges against him. He stated that he had no connection with the PKK and that the allegations were baseless.
14. On 8 June 1995 the court ordered the Forensic Medicine Institute to carry out a handwriting examination.
15. On 17 July 1995 the Forensic Medicine Institute sent a letter to the court and requested further specimens to make an accurate comparison. In this respect, they required the applicant to write down the text of the letter in small letters, and the text on the envelope in capital letters. The Institute further requested the applicant to submit specimens of his handwriting, which he had written in the past.
16. After an examination of the above-mentioned samples, the Institute delivered two reports, dated 22 January 1996 and 22 January 1997. It was established that the characteristics of the applicant's handwriting had similarities with the handwriting on the letter and that the letter was written by the applicant.
17. The Konya State Security Court held twenty-six hearings, the last on the 28th April 1997.
18. On 16 May 1997 the case was transferred to the Adana State Security Court. Between this date and 14 October 1997 the court held seven hearings.
19. In his final observations on the merits, the public prosecutor changed the accusation against the applicant and accused him of aiding an armed gang under Article 169 of the Criminal Code.
20. In his final defence submissions, the applicant denied the allegations under Article 169 of the Criminal Code and stated that he had not written the letter and that he had no connection with the PKK. He further challenged the findings of the experts' reports.
21. On 14 October 1997 the Adana State Security Court, which was composed of three judges including a military judge, found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment pursuant to Article 169 of the Criminal Code. The applicant was further debarred from public service for three years. In its judgment, the court found it established that the applicant had sent a threatening letter on behalf of the PKK to F.A. and İ.A. who were to give statements against certain PKK members in connection with another criminal case. The court based itself on expert reports which had concluded that the letter was written by the applicant.
22. After holding a hearing, on 30 June 1999 the Court of Cassation dismissed the applicant's appeal.
23. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002).
Article 311 § 1 (f) of the Criminal Procedure Code, as amended by Law No. 5271 of 4 December 2004 which entered into force on 1 June 2005, regulates the cases where a request for re-trial could be filed following a criminal conviction.
Accordingly:
“In cases where the European Court of Human Rights finds it established that the criminal conviction constituted a breach of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols (...) In this case, the re-trial can be requested within one year from the date on which the judgment of the European Court of Human Rights becomes final.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1