ITEMID: 001-71135
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NESTEROV v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Rudolf Nesterov, is an Estonian national who was born in 1968 and lives in Puhja, Tartu County. He is represented before the Court by Mr M. Masso, a lawyer practising in Tallinn.
On 12 April 2001 the applicant was convicted, together with G. and S., of several offences by the Tartu County Court (Tartu Maakohus). According to the charges, at 2.45 a.m. on 22 August 1996 the applicant, after having had a debt dispute with the victim and being employed by G., had thrown an explosive device into a car parts shop owned by OÜ Arep, a private limited company. A charge of damaging property by use of explosives was brought under Article 144 § 1 of the Criminal Code. The applicant was also charged with extortion under Article 142 § 2 of the Criminal Code. According to the charges, in November or December 1996 he had demanded EEK 5,000 (EUR 319) from T. and P., the owners of OÜ Micro Autolammutus, a private limited company and competitor of OÜ Arep, and threatened to destroy the property in their office if they refused to give him the money. The applicant was further charged, under Article 207-3 § 1 of the Criminal Code, with unlawful possession of explosives. In 1989 or earlier he had acquired, without having the required licence, 113 grams of gunpowder and kept it unlawfully in his place of residence until 27 September 1998. Finally, the applicant was charged under Article 207-4 of the Criminal Code with unlawfully producing, acquiring, possessing, and transferring an explosive device. At the end of August 1998 or the beginning of September 1998 he had asked S. to produce an explosive device for him, which S. had done. The applicant had modified the device in order to increase its power of destruction. Thereafter he had kept the explosive device in his place of residence until 27 September 1998. On that date he had been arrested by the police just before he could hand the device over to I.S.
In respect of the charge under Article 144 § 1 of the Criminal Code, the County Court convicted the applicant and G., relying on the following evidence:
1) an inspection report of the scene of the offence;
2) a report of the Tartu Rescue Company together with a plan of the site of the explosion;
3) an expert’s report no. KP-8-9 concerning the explosives;
4) statements of witness J.M.;
5) statements of A.P., representative of OÜ Arep;
6) statements of witness M.S.;
7) statements of victim P.;
8) statements of victim T.;
9) undercover recordings of G.’s conversations;
10) statements of anonymous witness “Aili”;
11) statements of anonymous witness “Karl”;
12) statements of anonymous witness “Tiiu”.
In addition to the statements given by the anonymous witnesses during the investigation, the County Court also questioned them on the request of the defence counsel. The defence put questions to them in writing.
The County Court held that the charge of extortion (under Article 142 § 2 of the Criminal Code) against the applicant had not been made out. He was acquitted of this charge.
With respect to the charge against the applicant of unlawful possession of explosives and the charge against him and S. of unlawfully producing, possessing, holding and transferring an explosive device, the County Court noted that S. had pleaded guilty. According to him, he had made the explosive device on instructions. The guilt of the applicant had also been proved by his own statements and those of the witnesses I.S. and B., several search and seizure reports, expert opinions and other items examined at the court hearing.
The County Court granted the civil claim for damages by OÜ Arep.
The applicant was sentenced to a total of seven years’ imprisonment, less the time he had spent in pre-trial detention.
Defence counsel for the applicant and G. appealed against the judgment of the County Court. The applicant’s counsel requested the Tartu Court of Appeal (Tartu Ringkonnakohus) to acquit the applicant in respect of the Article 144 § 1 charge, mitigate his sentence, put him on parole and dismiss the civil claim. Defence counsel was of the opinion that the applicant’s conviction had been based on assumptions, rather than on the facts established. He alleged that the County Court had wrongfully referred to the transcript of G.’s taped conversations. According to him, the parties to the proceedings had had no possibility of verifying that the transcript reflected the recording adequately. Counsel found that the statements of the anonymous witnesses did not accord with the rest of the evidence and that a conviction could not be based solely on the anonymous statements. He insisted that the doubts raised by the statements of the anonymous witnesses, which could not be eliminated by other evidence, had to be interpreted in favour of the accused at trial.
On 23 January 2002 the Court of Appeal allowed the appeal in so far as it concerned the civil claim but upheld the remainder of the County Court’s judgment. The Court of Appeal found that the court of first instance had given reasons for not relying on the statements of the witnesses on behalf of the accused at trial and considering the statements of P. and T. in respect of the explosion as reliable. The Court of Appeal noted, furthermore, that it had no reason to doubt the reliability and truthfulness of the statements of the anonymous witnesses Aili, Karl and Tiiu. It found that their statements tallied in many respects and accorded with the material evidence (the inspection report of the scene of the offence and the expert’s report concerning the explosive device). The Court of Appeal stressed that the reliability of the statements of the anonymous witnesses had been controlled by the County Court, where they had been heard at the request of the defence counsel. The anonymous witnesses had confirmed their statements given during the preliminary investigation.
The Court of Appeal noted that the fact that all parties to the proceedings had not comprehended the voice records concerning G. did not eliminate their value as an item of evidence proving the guilt of the accused at trial. Moreover, the case file had included a transcript of the recording. According to the record of the County Court’s hearing, the recording had been heard in the courtroom. The Court of Appeal agreed with the applicant’s counsel and the prosecutor that the amount of the damage caused to OÜ Arep was unclear and that the civil claim therefore had to be settled in separate civil court proceedings.
The applicant’s counsel and G. appealed against the Court of Appeal’s judgment, which was quashed in part by the Supreme Court on 19 June 2002. The Supreme Court quashed the judgment in so far as the Court of Appeal had upheld the County Court’s judgment convicting and sentencing the applicant and G. under Article 144 § 1 of the Criminal Code. The judgment was also quashed in respect of the applicant’s overall sentence and in so far as the referral of the civil claim of OÜ Arep to a civil court had been concerned.
The Supreme Court pointed out, inter alia, that, as provided by Article 48 § 2 of the Code of Criminal Procedure, a voice recording – but not a written transcript thereof – could be used as evidence in criminal proceedings. The Supreme Court noted that, according to the record of the Court of Appeal’s hearing, the recording of G.’s conversation had not actually been heard at the hearing in the appeal court. The Court of Appeal had, at the same time, noted that the transcript had corresponded to the recording. The Supreme Court found that the Court of Appeal had failed to comply with the requirements of Article 19 § 1 and Article 206 of the Code of Criminal Procedure, which provided that a criminal case had to be examined thoroughly and objectively and the evidence examined directly.
As concerned the anonymous witnesses, the Supreme Court was satisfied that the County Court had directly examined the statements given by them.
Finally, the Supreme Court noted that the applicant’s counsel had challenged, inter alia, the applicant’s conviction under Article 207-3 § 1 of the Criminal Code. However, in his appeal to the Court of Appeal he had only challenged the applicant’s conviction under Article 144 § 1 of the Criminal Code. In respect of the other offences only a more lenient punishment had been asked for. Accordingly, the Supreme Court found that the applicant had no right of appeal in respect of his conviction under Article 207-3 § 1 of the Criminal Code.
The Supreme Court referred the case, in so far as it was quashed, back to the Court of Appeal.
On 29 October 2002 the Court of Appeal quashed the County Court’s judgment in respect of OÜ Arep’s civil claim. It also modified G.’s overall sentence and the date from which the serving of the sentence would be deemed to run.
The Court of Appeal found that since the statements of the witnesses P. and T. tallied and the involvement of G. and the applicant in the organisation of the explosion had been proved by other evidence, there was no reason to question their truthfulness. Furthermore, the Court of Appeal noted that also the statements of the anonymous witnesses tallied and the reliability of these statements was made even greater by the fact that they matched the factual circumstances concerning the explosion. These statements accorded with an additional expert opinion concerning the explosive device. The Court of Appeal was of the opinion that G.’s guilt had also been proved indirectly by the undercover voice recordings made from 10 February to 24 February 2000 and the transcripts thereof. The recordings from 7 December to 16 December 1998 and from 9 April 2000 could not be taken into account as evidence, since they were incomprehensible due to their poor quality.
The Court of Appeal concluded that the denial of guilt by G. and the applicant had been rebutted by all the evidence overall.
The Court of Appeal found that it was unnecessary to rule on the civil claim, since in the meantime, on 23 May 2002, the Tartu County Court had, in separate proceedings, granted a claim by OÜ Arep against G. and the applicant.
Defence counsel for the applicant and G. appealed against the judgment of the Court of Appeal. The applicant’s counsel requested, inter alia, that the applicant be acquitted of the charge under Article 144 § 1 of the Criminal Code. He found that the courts had based the applicant’s conviction decisively on the statements of the anonymous witnesses. This conflicted with the case-law of the Supreme Court and the European Court of Human Rights. It had been impossible to ascertain on which grounds the anonymity had been granted with respect to some of the witnesses. Neither the anonymous statements nor the statements by the named witnesses proved that it had been the applicant who had committed the explosion. The applicant’s counsel further requested that the applicant be put on parole in respect of the sentence imposed under Articles 207-3 § 1 and 207-4 of the Criminal Code.
On 14 March 2003 the Supreme Court quashed the County Court’s judgment of 12 April 2001 and the Court of Appeal’s judgment of 29 October 2002 in part. It held that the classification of the offence and the reference to the provision of the Criminal Code had to be modified, since the relevant provision had been changed between the time the offence had been committed and the time the courts had decided the case. The Supreme Court convicted the applicant under Article 144 and G. under Articles 17 § 4 [organiser of the offence] and 144 of the Criminal Code. Both of them were sentenced to six years’ imprisonment.
With respect to the anonymous witnesses, the Supreme Court found no violation of the law of criminal procedure. It held that the County Court had directly verified their statements. The courts had evaluated all the evidence and given sufficient reasons for the conclusions made on the basis of the anonymous statements. The Supreme Court reiterated that it did not have power to establish the facts. The fact that the appellants had disagreed with the factual circumstances established by the lower courts was not a question of law which could be dealt with in the review proceedings in the Supreme Court.
The Supreme Court noted that by its judgment of 19 June 2002 the applicant’s conviction under Articles 207-3 and 207-4 of the Criminal Code had been upheld. That judgment of the Supreme Court had become binding on the same date. Therefore, there were no grounds for analysing once again the well-foundedness of the sentence imposed on the applicant pursuant to those provisions.
Under Article 79-1 § 1 of the Code of Criminal Procedure, as in force at the material time, in order to ensure the security of a victim or a witness or persons close to him or her, the person in question may be granted anonymity. Anonymity is granted in a reasoned order by a preliminary investigator at the request of a witness or a victim, or on the initiative of the preliminary investigator.
Pursuant to Articles 205 and 206 of the Code of Criminal Procedure, a judge must preside over court hearings so that all facts are examined thoroughly, from all perspectives and objectively, and the truth is ascertained. When hearing a criminal case a court of first instance must directly examine the evidence by hearing the accused, the victims, witnesses and experts, inspecting physical evidence and disclosing records and other documents. Article 262 § 2 of the Code provides that a court judgment must be based only on evidence that has been heard at a court hearing. Article 274 of the Code provides that the statement of facts and reasons in a court judgment must set out, inter alia, the facts ascertained in the examination by the court and the evidence on the basis of which the court deems the facts to be established; the reasons why the court bases its judgment on such evidence and deems other evidence in the case to be unreliable; the charges on which the court convicts each of the defendants; and the evidence on which its conclusion is based.
Article 243 of the Code of Criminal Procedure provides that, after a witness has given testimony, he or she is examined by the participants in the proceedings, including the accused and his or her lawyer. Additional questions may be submitted to a witness to clarify and supplement the testimony previously given by him or her. If a court deems it necessary to hear evidence from a witness who has been granted anonymity, the witness is heard in the absence of the participants in the proceedings on the basis of the questions submitted by them. The content of the testimony has to be disclosed at a court hearing.
Under Article 246 of the Code of Criminal Procedure, testimony given by a witness during the pre-trial investigation may be disclosed if the witness fails to appear at a court hearing or if the whereabouts of the witness are unknown or if the witness has been granted anonymity.


ITEMID: 001-61836
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF TAM v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1943 and lives in Bratislava.
9. On 11 August 1993 the applicant consulted a doctor to whom he complained of health problems due to the fact that his neighbour had tried to poison him. The doctor sent the applicant to the hospital in Ružinov in an ambulance. The accompanying document established by the doctor indicated that the applicant suffered from paranoid schizophrenia. In it the doctor requested that the applicant be treated as an in-patient. According to the applicant, he stayed in the central reception unit of the hospital in Ružinov for about ten minutes and during this time two injections were administered to him. Subsequently the applicant was brought against his will to the mental hospital in Pezinok. The chief physician of that hospital ordered that the applicant be released on 26 August 1993.
10. On 19 August 1993 the Bratislava-vidiek District Court gave a decision in which it found that the applicant was held in a mental hospital lawfully. The reasons for this decision read as follows:
“The psychiatric hospital in Pezinok admitted Karol Tám, as an ill person, without his consent. The court took evidence with a view to assessing whether the grounds for his admission were lawful and concluded that the person concerned has suffered from a mental illness requiring treatment in a mental hospital.”
11. The District Court’s decision of 19 August 1993 was served on the applicant on 20 September 1996. On 1 October 1996 the applicant appealed and claimed that he had been taken to the mental hospital unlawfully.
12. On 30 April 1998 the Bratislava Regional Court quashed the District Court’s decision of 19 August 1993. The Regional Court found that the first instance court had failed to establish the relevant facts and had committed errors of both a legal and procedural nature. In particular, the District Court had not taken formal decisions to bring proceedings concerning the lawfulness of the applicant’s examination in a mental hospital and to appoint a guardian for the applicant as required by Article 191b §§ 1 and 2 of the Code of Civil Procedure. Furthermore, the District Court had not heard the applicant and the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified. The case was sent back to the District Court for a new adjudication.
13. In a letter dated 21 January 1999 a judge of the Bratislava III District Court (which had taken over the cases pending before the former Bratislavavidiek District Court) informed the applicant that the case would not be proceeded with as proceedings concerning the lawfulness of his placement in a mental hospital had never been formally brought.
14. On 26 February 1999 the Bratislava Regional Court instructed the District Court to deliver a decision on the case.
15. On 6 July 1999 the Bratislava III District Court discontinued the proceedings. The decision stated that the applicant had been released on 26 August 1993 and, therefore, the reasons for proceeding further with the case had fallen away. The applicant appealed on 9 August 1999. He claimed that his deprivation of liberty had been unlawful and that he had not been informed that a guardian had been appointed to represent him.
16. On 31 May 2000 the Bratislava Regional Court upheld the District Court’s decision of 6 July 1999.
17. At the relevant time the following constitutional provisions were in force.
18. Pursuant to Article 11, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms.
19. Article 144(1) provides that judges are independent and bound only by law.
20. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide.
21. The following relevant provisions of the Code of Civil Procedure were in force at the time when the applicant was deprived of liberty.
22. Article 191a (1) provided that medical institutions should inform a court, within twenty-four hours, that a person had been placed in their premises against his or her will.
23. Pursuant to Article 191b (1), the court in the district of which the medical institution was located should start proceedings, of its own initiative, with a view to establishing whether such a person’s deprivation of liberty was justified.
24. Paragraph 2 of Article 191b provided that the court should appoint a guardian for the person concerned unless he or she had a representative.
25. Under paragraph 3 of Article 191b, the court should hear the person concerned as well as the doctor treating him or her with a view to establishing whether the placement in the medical institution was lawful.
26. Paragraph 4 of Article 191b required that the court decide, within seven days after a person was brought to a medical institution against his or her will, whether such a measure was lawful.
27. Pursuant to Article 191c (1), such a decision was to be served, inter alia, on the person concerned unless the doctor indicated that that person was not able to understand its contents.
28. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
29. Pursuant to Article 13 (1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
30. Article 13 (2) provides that in cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts should take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.
31. Section 1 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.
32. Section 18 (1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.
33. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.
34. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner.
35. Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov) was adopted on 28 October 2003. It will become operative on 1 July 2004 and will replace, as from that date, the State Liability Act of 1969.
36. The explanatory report to Act No. 514/2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights.
37. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature.
38. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).
39. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for nonpecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969.
40. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7.
41. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated.
42. In judgment no. 7C 818/96-81 of 11 May 2000 the Žiar nad Hronom District Court granted compensation of 500,000 Slovakian korunas to a person whose son had been killed. The court noted that the defendant had been convicted of a murder by a criminal court and that his action grossly interfered with the personal rights of the plaintiff.
43. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income.
In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969.
The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows:
“The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]...
It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature.
... compensation for damage of a non-pecuniary nature has the character of a satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-60724
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF DEMUTH v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Gaukur Jörundsson
TEXT: 9. The applicant was born in 1949 and lives in Zürich, Switzerland.
10. The applicant intended to set up a “specialised television programme”, Car TV AG, limited to a particular subject (Spartenfernsehprogramm), namely all aspects of car mobility and private road traffic, including news on cars, car accessories, traffic and energy policies, traffic security, tourism, automobile sport, relations between railways and road traffic and environmental issues. The television programme was to be broadcast via cable television in German in the German-speaking areas of Switzerland, and in French in the French-speaking areas. Initially, the programme was to last two hours, to be repeated continuously over the next twenty-four hours and a new one shown once a week; later it was to be extended in duration. The applicant was to be the company's managing director. The programme was to be prepared in close cooperation with industry, automobile associations and the specialist media.
11. On 10 August 1995 the applicant filed with the government in the name of Car TV AG a request for a licence (Konzessionsgesuch) to broadcast the intended programme. The Federal Office for Communication replied on 16 August 1995, pointing out the lack of prospects of success of such a request. By a letter of 7 September 1995 the applicant informed the Federal Office that he wished to pursue his request and submitted further documents. From the latter it transpired that Car TV AG would now include in its programme matters concerning the transport needs of non-motorists and set up an independent programme commission.
12. On 16 June 1996 the Swiss Federal Council (Bundesrat) dismissed the request. The Federal Council noted that there was no right, either under Swiss law or Article 10 of the Convention, to obtain a broadcasting licence. With reference to the instructions for radio and television listed in section 3(1) of the Federal Radio and Television Act (Bundesgesetz über Radio und Fernsehen – “the RTA”; see “Relevant domestic law” below) the decision continued:
“... The electronic media have the task of conveying content that serves the development of informed democratic opinion. They should furthermore actively contribute to a culture of communication serving as the basis for cultural development and for an integral democratic discourse.
4. Under section 11(1)(a) of the RTA, a licence shall only be granted if radio and television can achieve the aims mentioned in section 3(1) of the RTA as a whole. It is unnecessary that each venture comply with all aspects of the instructions mentioned. Rather, a positive contribution is required which will further the culture of communication in our country and which will under no circumstances run counter to the aims of the RTA.
5. A comprehensive and broad-based democratic discourse is guaranteed first of all by means of programmes which are committed to a public service and can be considered to be comprehensive. These are directed at the entire public and have as their subject matter all aspects of political and social life. Specialised programmes concentrate on particular themes and are directed at particularly interested sectors of the public. The result may be the formation of public opinion influenced by the media by way of specific content, and no longer primarily by way of broad-based, comprehensive programmes. Such a development indubitably has consequences for the culture of communication. Communicative integration via the electronic media is impaired, and leads to a society increasingly shaped by segmentation and atomisation.
6. Against this background, the broadcasting of specialised programmes runs counter to the democratic considerations of the general instructions for radio and television (Section 3(1) of the RTA). These instructions are oriented towards the integration and promotion of an integral culture of communication. As a result, stricter conditions must apply to specialised programmes than would be required for a programme with a varied content. Therefore, when examining the conditions for a licence under section 11(1)(a) of the RTA, qualified criteria shall be adduced, since the active contribution of specialised programmes towards the culture of communication must generally be called into question.
7. Nevertheless, granting a licence to specialised programmes continues to remain possible under qualified conditions. A licence shall be considered if the negative effects of the programme are at least compensated by its valuable contents within the meaning of section 3(1) of the RTA. This could be the case with programmes in the areas of culture (music, films, etc.) or the formation of political opinions (parliamentary broadcasts, etc.).
8. The request for a licence by Car TV AG aims at a specialised programme which has car mobility as its content and places the car at its centre. According to the criteria set out in subsections (4)-(6), it must be considered with the greatest restraint. As a result, granting a licence will only be considered if the disadvantages resulting from a specialised programme are compensated by its valuable contents, offering a particular contribution to the general instructions mentioned in section 3(1).
9. However, the orientation of the programme of Car TV AG is not able to offer the required valuable contribution to comply with the general instructions for radio and television. The programme focuses mainly on entertainment or on reports about the automobile. Car TV AG does not therefore meet the requirements for a licence under section 11(1)(a) of the RTA.”
13. Article 55 bis §§ 2 and 3 of the Swiss Federal Constitution (Bundesverfassung), in the version in force at the relevant time, provided as follows:
“2. Radio and television shall contribute to the cultural development, free expression of opinion and entertainment of the public. They shall have regard to the characteristics of the country and the requirements of the cantons. They shall depict events objectively, and express the variety of opinions adequately.
3. The independence of radio and television and their autonomy in respect of programmes are guaranteed subject to paragraph 2.”
14. These provisions are now set out in Article 93 §§ 2 and 3 of the Federal Constitution.
15. Based on the provisions of the Federal Constitution, section 3(1) of the Swiss Radio and Television Act (Bundesgesetz über Radio und Fernsehen) provides:
“Instructions
Radio and television shall as a whole:
contribute to the free expression of opinion, to the provision of general, varied and objective information to the public and to their education and entertainment, and convey civic awareness;
have regard to, and bring closer to the public, the diversity of the country and its population and advance the understanding of other peoples;
promote Swiss cultural enterprise and stimulate the public to participate in cultural life;
facilitate contact with Swiss expatriates and promote the presence of Switzerland abroad and understanding of its concerns;
have particular regard to Swiss audiovisual production, namely films;
have particular regard to European productions.”
16. Section 5(1) and (2) of the RTA provide:
“Independence and autonomy
(1) The operators are free in the manner in which they manage their programmes; they bear the responsibility thereof.
(2) Unless federal law provides otherwise, the operators are not bound by the instructions of the federal, cantonal or municipal authorities.”
17. Under section 10(2), nobody is entitled to receive, or to have renewed, a broadcasting licence. Section 10(3) establishes the government, that is the Swiss Federal Council (Bundesrat), as the authority that grants broadcasting licences for radio and television.
18. Section 11(1)(a) of the RTA mentions various conditions for the granting of a licence, among which are the conditions stated in section 3(1); namely, that the applicant must be a citizen and resident of Switzerland or a company with its registered office in Switzerland; and that the applicant must disclose his financial situation.
19. Under section 43(1), cable companies are in principle free to transmit all radio and television programmes, although subsection (2) lists certain broadcasts which the cable company is obliged to transmit. Section 48 limits the freedom of cable companies to transmit programmes in so far as they contravene international regulations. In accordance with section 56 of the RTA, the relevant authority shall monitor compliance by all licence holders with international and domestic regulations, although the supervision of programmes is not permitted.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-107669
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TARABURCA v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1988 and lives in Chişinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 5 April 2009 general elections took place in Moldova. The preliminary results of those elections were announced on 6 April 2009. According to them, the ruling Communist Party of Moldova had narrowly won the elections.
8. On 6 April 2009 growing discontent with the results of the elections and with alleged electoral fraud was felt, notably in various online forums. At 6 p.m. several hundred people, mostly young, gathered in front of the Stephen the Great (Ştefan cel Mare) monument in the centre of Chişinău. Half an hour later there were already 3-4,000 people assembled, who began to protest against the alleged electoral fraud, doing so in front of the Presidential Palace and Parliament buildings and then returning to the Great National Assembly Square. A bigger demonstration was then announced for 10 a.m. the next day.
9. On 7 April 2009 the protest restarted with the participation of some 56,000 people. While the demonstration was peaceful at the beginning, several hundred of the participants gradually became violent. As established by the subsequently created parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”), two incidents of poorly planned intervention by a fire truck and riot police brought the crowd to a point beyond which massive violent acts could no longer be prevented. Following violent attacks and stone throwing, which met very weak police resistance, approximately 250 violent protesters were eventually able to take over the lower floors of the Presidential Palace and Parliament buildings. They looted those floors and set the canteen in the Presidential Palace alight. During the night, several fires broke out in the Parliament building, some of them breaking out after full control over the building was recovered by the authorities at around 11 p.m.
10. At approximately 1 a.m. on 8 April 2009 various police and special forces units started a massive operation aimed at re-establishing public order. However, as established by the Commission, excessive force was used and all those still present in the main square were arrested, regardless of whether they had acted violently or not. The arrests continued for several days. The media reported cases and showed video footage of young people being arrested and/or beaten by both uniformed police and plain-clothed officers in the city centre during 8 April and thereafter, long after the protests ended on the evening of 7 April 2009.
11. According to the applicant, on 7 April 2009 he and his friend S. went to the centre of Chişinău to see the protests.
12. Having spent some time peacefully attending the protests, they stopped a taxi with the intention of returning home. However, they were forced into the taxi by three plain-clothed police officers who did not identify themselves. The officers ordered the driver to drive to Botanica police station. The applicant and S. were taken to that police station and locked in a cell which was cold, unfurnished and lacked access to daylight.
13. At around 1 a.m. on 8 April 2009 an officer in police uniform entered the cell. He was accompanied by the three arresting officers, who started beating the applicant and S. for no reason. The applicant lost consciousness and woke up with blood running from his nose and upper lip. No medical help was given to him.
14. According to the record of the applicant’s arrest, he was arrested on 8 April 2009 at 2 p.m. The reason indicated in the record was that he had been “caught in the act and the investigating authority suspects that he may abscond”. No further details were given.
15. On 8 April 2009 the applicant was transferred to the detention facility of the General Police Directorate (“the GPD”), where he was held together with ten other people in a cell measuring 5 x 4 metres, was given meagre quantities of inedible food and was denied water. The cell lacked access to daylight and ventilation. According to the Government, the applicant was examined by a prison doctor on 8 April 2009. No signs of ill-treatment were noted.
16. On 10 April 2009 an investigating judge from the Buiucani District Court, Judge M. D., accepted a prosecutor’s request to order the applicant’s detention pending trial for thirty days. The hearing took place at the GPD’s premises. On the same night, the applicant was transferred to prison no. 13. On the way there, he was allegedly made to pass through a “death corridor” formed of police officers, each of whom hit him as he passed by.
17. On 16 April 2009 the Chişinău Court of Appeal quashed the investigating judge’s decision of 10 April 2009 and ordered the applicant’s release.
18. According to the Government, the applicant was not ill-treated during his detention or his transfers to other detention facilities. Despite being assisted by a lawyer, he made no complaints of such ill-treatment until several days later.
19. On 14 April 2009 the applicant complained to the Botanica prosecutor’s office of his ill-treatment. He made a similar complaint to the military prosecutor’s office on 15 May 2009, describing in detail his ill-treatment and the conditions of his detention. He relied on Articles 3 and 5 of the Convention and noted that he had not received any reply to his complaint of 14 April 2009. The stamps present on his complaint of 14 April 2009 reveal that the case file was received by the military prosecutor’s office on 21 April 2009.
20. Also on 14 April 2009 the applicant was examined by a doctor, who found an abrasion on his face which had formed a scab and a bruise accompanying an abrasion on his upper lip on the right side, which were considered to be injuries that had not caused damage to his health. According to the applicant, he was not told to take off his clothes, and for this reason the doctor did not establish the presence of other injuries, notably on his back.
21. In a report dated 30 April 2009 the military prosecutor dealing with the applicant’s complaint noted that requests had been made to the Ministry of Internal Affairs (without specifying the nature of the requests) but that no answer had been received. In the absence of such materials no decision as to next steps could be made. The prosecutor therefore asked for an extension of the period for finalising the case until 15 May 2009. This request was granted.
22. On 15 May 2009 the same prosecutor noted that on 5 May 2009 the Ministry of Internal Affairs had been asked to carry out an internal investigation to identify the officers who had allegedly ill-treated the applicant. As no officers from Botanica police station had been heard, the prosecutor asked for an extension of the period for finalising the case until 29 May 2009. This request was granted.
23and his friend S. had been heard. The officers who were on duty at Botanica police station on 8 April 2009 were still to be heard. In such circumstances, the prosecutor asked for an extension of the period for finalising the case until 12 June 2009. This request was granted.
24. On 12 June 2009 the military prosecutor decided not to initiate a criminal investigation into the applicant’s allegations of ill-treatment. He noted that S. had not confirmed having been ill-treated or having seen the applicant being ill-treated. All the police officers had denied any wrongdoing and the officer on guard had denied that anyone had entered the applicant’s cell during the night of 7 April 2009. That officer had not seen any injuries on the applicant’s body when the applicant had returned from his interview with the investigators concerning his alleged participation in mass disorder on 7 April 2009. The three officers who had arrested the applicant (R.P., E.G. and V.T.) stated that they had brought him and S. to Botanica police station and had then returned to the centre of Chişinău, where they had guarded Government buildings until 7 a.m. on 8 April 2009. They had not returned to the police station and had not entered any cells there. Moreover, according to a report concerning a medical examination of the applicant on 8 April 2009, no injuries had been noted on the applicant’s body. The prosecutor considered that the injuries on the applicant’s face could have been caused during his participation in the riots in the centre of Chişinău.
25. By letter dated 16 July 2009 the military prosecutor’s office informed the applicant of the decision taken on 12 June 2009.
26. On 20 August 2009 the applicant complained about the prosecutor’s decision to the military prosecutor’s office. He noted that he had been in police custody between 7 and 16 April 2009 and that his injuries had appeared during that period. Moreover, none of the arresting officers had noted any injuries on his body at the time of his arrest. He noted the discrepancies between the two medical reports of 8 and 14 April 2009 and called into question the professionalism and independence of the doctor who had filed the report of the examination on 8 April 2009. He also noted that S. was a former police officer and might have given a statement in support of his former colleagues, either out of solidarity with them or after having been threatened. The applicant referred to his complaint, in which he had noted that he could identify the people who had ill-treated him, but that no identity parade had been organised to verify his claim in that regard.
27. On 21 August 2009 the military prosecutor’s office rejected the applicant’s complaint as ill-founded. The prosecutor referred to S.’s statement that he had not seen any ill-treatment occurring.
28. On 10 September 2009 the applicant complained to the Buiucani District Court about the decision not to initiate criminal proceedings. He considered that the investigation had been protracted, given that his complaint of 14 April 2009 had reached the military prosecutor’s office only a week later. Having received no response to his complaint, he had made another complaint on 15 May 2009. After a decision had been taken on 12 June 2009 – two months after his initial complaint – not to initiate a criminal investigation, he had been informed of it another month later. The applicant repeated his arguments made in his complaint of 20 August 2009 and added that the prosecution had not ordered any additional medical examination in order to dispel the doubts concerning the discrepancies between the medical reports of 8 and 14 April 2009. The applicant also noted that he had been undergoing a series of extensive medical examinations which would confirm his ill-treatment.
29. On 21 September 2009 the Memoria Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT), issued an Extract of the medical file (Extras din Fişa Medicală) concerning the applicant’s examination during the period 22 April – 1 June 2009. He appears to have undergone detailed medical tests and examinations by various medical specialists. According to the document, the applicant had suffered, inter alia, the consequences of a head injury including intracranial hypertension syndrome and post-traumatic stress disorder, which had had both physical and psychological effects on him. The document was submitted to the Buiucani District Court.
30. On 29 September 2009 the Buiucani District Court rejected the applicant’s complaint as unfounded. It found that the prosecutor had interviewed all those concerned and noted that S. had not confirmed the applicant’s allegations. The prosecutors’ decisions having been adopted in full compliance with the law, there was no reason to quash the decisions taken.
31. On 12 January 2010 the Supreme Council of Magistrates (“the Council”) refused to extend the appointment of Judge M. D. of the Buiucani District Court, following which he was dismissed from his position as a judge by the acting President of Moldova. The reason for the Council’s decision was that the judge had examined a number of cases concerning the events of 7 April 2009 outside the courtroom and at the premises of the General Police Directorate, which was “a grave violation of the Constitution and of the Code of Criminal Procedure”.
32. On 4 February 2010 the criminal case against the applicant was discontinued for lack of evidence that he had committed a crime.
33. The relevant parts of the report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Moldova from 25 to 28 April 2009, read as follows:
“...
Commissioner Thomas Hammarberg and his delegation visited Moldova two and a half weeks after the post-electoral demonstrations of 6-7 April 2009. The specific issue of the treatment of the people detained in relation to the events was the central focus of the Commissioner’s attention.
The majority of the persons interviewed by the Commissioner’s delegation, who had been arrested in connection with the April 2009 post-electoral demonstrations, alleged that they had been beaten – some of them severely - by police officers. In several cases, the medical expert accompanying the Commissioner directly observed physical marks consistent with those allegations. Moreover, the medical files in the establishments visited contained records of injuries which were consistent with the persons’ accounts.
...
Representatives of the Moldovan authorities accepted that police had abused their powers in the aftermath of the protests when dealing with persons deprived of their liberty, and expressed their resolve to overcome the problem of ill-treatment by the police. It was strongly underlined by the Commissioner that such large-scale violations of the fundamental right to be free of ill-treatment must never be allowed to recur, and that active steps must be taken to pursue accountability whenever individual cases of ill-treatment emerge...
... 10. The Minister of the Interior informed the Commissioner that 106 people were detained in the aftermath of the 6-7 April 2009 demonstrations on suspicion that they had committed criminal offences. Nine of those persons were still in custody as of 28 April 2009, remanded in Prison No. 13, an institution under the authority of the Ministry of Justice. Moreover, 216 people, including ten young women, had been detained on administrative charges related to the events in question; all of those persons had been released by the time of the Commissioner’s visit.
11. Based on the information at the Commissioner’s disposal, the persons apprehended in the aftermath of the demonstrations were brought to one of the following police establishments in Chisinau: the General Police Directorate, or the Centru (Centre), Botanica, Ciocana, Rîşcani and Buiucani district police stations. People who were initially detained in one of the district police stations were then transferred to the detention facility at the General Police Directorate.
12. The Commissioner received no complaints regarding the treatment of persons in Prison No. 13. However, the majority of the persons interviewed by the Commissioner’s delegation, who had been arrested in connection with the April 2009 post-electoral demonstrations, alleged that they had been physically ill-treated by police officers. In most cases, the persons who were subjected to the alleged ill-treatment were relatively young (under 25). As the Prosecutor General has himself observed, the alleged ill-treatment broadly related to three different situations: 1) at the time of apprehension; 2) during transport to a detention facility; and 3) ill-treatment within the detention facility, including during questioning with the objective of extracting a confession.
13. The physical ill-treatment alleged included punches, kicks and blows with rubber batons, wooden sticks, the butts of firearms, or other blunt and hard objects. Certain persons claimed that the ill-treatment was sufficiently severe or prolonged so as to make them lose consciousness at least once and/or to result in fractures or permanent nerve damage. Many persons also alleged that they had been threatened with physical violence or even with summary execution, verbally abused, and/or subjected to humiliating treatment...
14. According to the Minister of Justice, of the 111 persons admitted to Prison No. 13 following a period of deprivation of liberty by the police, 28 persons displayed various degrees of injuries. The Minister of the Interior informed the Commissioner that, as of 28 April 2009, 54 complaints concerning ill-treatment were being processed. The Prosecutor General indicated that his office had received 37 complaints as of that date, and that investigations in 30 further cases had been initiated ex officio. In addition, one criminal prosecution had been initiated.
15. In several cases, the medical expert accompanying the Commissioner directly observed physical marks consistent with allegations of ill-treatment, despite the fact that more than two weeks had elapsed since the time the alleged ill-treatment occurred. Moreover, the files studied by the Commissioner’s medical expert contained records of injuries which were consistent with the accounts of physical ill-treatment given by the persons who had been in police custody. For instance, the records in the Emergency Hospital in Chisinau revealed that 115 persons had sought medical attention during the relevant period because of injuries they sustained due to use of force by the police. Of those, 24 had to be hospitalised because of severe injuries, including concussions, contusions of the kidneys, fractured limbs or ribs, and/or multiple soft tissue injuries...
22. In contrast to the prison and hospital medical records, the Commissioner’s medical expert observed that the records of injuries kept in the detention facility at the General Police Directorate in Chisinau were extremely cursory and superficial. The explanation given for this was that the feldsher (paramedic) employed in that facility was not a forensic doctor. These deficiencies in the recording of injuries in police establishments have already been highlighted by the European Committee for the Prevention of Torture (CPT) in the report on the Committee’s 2007 visit to Moldova. ...The CPT made a detailed recommendation on screening for injuries of persons within 24 hours of their admission to a police detention facility outside the presence of police officers, and on the imperative to record any injuries in a thorough manner. If the injuries recorded are consistent with allegations of ill-treatment, they should immediately be brought to the attention of the relevant prosecutor and an examination should be ordered by a recognised forensic doctor. In the interests of preventing ill-treatment, the Commissioner strongly urges the Moldovan authorities to provide for proper screening, recording and reporting of injuries, in light of the CPT’s recommendations on this subject.
... 24. ... representatives of the Consultative Council for the Prevention of Torture (the National Preventive Mechanism under the UN OPCAT) were reportedly prevented on 11 April 2009 from visiting certain police establishments in Chisinau where persons were being held, including the General Police Directorate and the Centru District Police Station.
25. The Commissioner received many complaints about the conditions of detention in police establishments following the large-scale arrests; most of these involved reports of serious overcrowding, very poor hygiene, lighting and ventilation, as well as the lack of provision of food, clean bedding, and personal hygiene or sanitary items. As already noted, the Commissioner only visited one police detention facility, i.e. the one at the General Police Directorate in Chisinau. The Commissioner observed that the material conditions in the cells were poor, with very dim lighting and bad ventilation; in general, the conditions corresponded quite closely to the descriptions provided by the persons who had been held in those cells. As for the issue of overcrowding, it was confirmed by the staff that the capacity of the establishment was exceeded during the dates in question.
... 39. It is of great concern to the Commissioner that a large number of the more than three hundred persons – certain of whom were minors - arrested in the context of or following the protests were subjected to ill-treatment by the police, some of it severe.
... 45. The Commissioner’s official interlocutors accepted that police had abused their powers in the aftermath of the protests when dealing with persons deprived of their liberty. The Commissioner underlined strongly that such large-scale violations of the fundamental right to be protected from ill-treatment must never be allowed to recur, and that active steps must be taken to pursue accountability whenever individual cases of ill-treatment emerge.
46. The Prosecutor General stated that he will investigate each case brought to his attention and also take initiatives himself upon information indicative of ill-treatment even in the absence of a complaint. According to him, special prosecutors which have not had working relations with police departments implicated in the events were being assigned to the cases.”
34. The relevant part of the report of the visit to Moldova carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) from 27 to 31 July 2009 read as follows:
“3. The main purpose of the visit was to assess the manner in which investigations were being carried out into cases possibly involving ill-treatment by the police in the context of post-election events in April 2009 in Chişinău. The visit also provided an opportunity to review the treatment of persons detained by the police.
In the course of April 2009, the CPT received reports from various sources according to which, following the parliamentary elections of 5 April 2009, hundreds of persons had been apprehended by the police after violent incidents occurred during public protests in front of the Presidency, Parliament and Government buildings in Chişinău. Those reports referred to severe physical ill-treatment at the time of apprehension, during transportation and/or during subsequent police custody. The Committee also received information indicating that some persons had died as a result of police action on 7-8 April 2009.
... 10. During the 2009 visit, the delegation observed that the practice of holding remand prisoners in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) continued unabated. In the report on the 2007 visit, the CPT called upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. In response, the Ministry of Internal Affairs indicated that it was in favour of a temporary transfer of responsibility for IDPs to the Ministry of Justice, pending the building of pre-trial establishments under the latter Ministry’s authority. However, at the end of the 2009 visit, the Minister of Justice indicated that the responsibility for the IDPs could not be taken over by his Ministry because conditions of detention in these facilities were substandard.
The CPT shares the view that IDPs do not offer suitable conditions for holding persons remanded in custody. The Committee would nevertheless like to stress that, in the interests of the prevention of ill-treatment, the sooner a criminal suspect passes into the hands of a custodial authority which is functionally and institutionally separate from the police, the better. The delegation’s findings from the 2009 visit support that; most cases of alleged police ill-treatment in the context of the April events had emerged only after the persons concerned had been transferred to an establishment under the Ministry of Justice or released. ...
... 12. In the course of the 2009 visit, the CPT’s delegation heard a remarkably large number of credible and consistent allegations of police ill-treatment in the context of the post-election events in April 2009. Many persons interviewed referred to the remarks made by police staff, which suggested that the alleged ill-treatment was inflicted in retaliation for acts of violence against the police during the day of 7 April.
... 14. The delegation also heard numerous accounts, from women, men and juveniles alike, of physical ill-treatment whilst in police custody in the course of 8 April and/or during the following days. Most persons interviewed who had not been released shortly after apprehension complained of repeated or prolonged beatings during the initial questioning by operational police officers or between interrogation sessions (e.g. kicks and blows with a truncheon or with a plastic bottle filled with water). The delegation also heard widespread allegations of threats of physical ill-treatment (including rape) and killing during the initial police questioning. The persons interviewed referred not only to the retaliatory nature of the alleged ill-treatment, but also claimed that it was aimed at extracting statements from them.
Many persons interviewed also alleged that they had been hit with truncheons and kicked when going through a “corridor” of police officers before entering a police establishment or transfer.
Further, the delegation received a few allegations of ill-treatment by custodial staff (e.g. kicks) upon admission to the IDP of the General Police Directorate in Chişinău.
15. Most of the above allegations were supported by forensic or other medical evidence. In some cases, the competent prosecuting authorities considered that the ill-treatment alleged was such that it could amount to torture ... The CPT shares this view. Moreover, the above findings lead the Committee to the conclusion that, rather than isolated incidents, there were patterns of alleged ill-treatment.
... 22. In its previous visit report, the CPT stressed that effective screening for injuries by health-care staff can make a significant contribution to the prevention of ill-treatment of persons detained by the police, and it made a series of recommendations designed to improve the procedures followed by feldshers working in IDPs. During the 2009 visit, the delegation observed the same shortcomings as those identified in the past. There were undue delays in the examination of newly admitted detainees (i.e. of up to several days). The screening for injuries was generally superficial and was routinely carried out in the presence of custodial or operational staff, and a copy of the report drawn up following an examination was accessible to police staff. Not surprisingly, the injuries sustained by detained persons in the context of the April 2009 events had frequently been detected and/or recorded only after release or transfer to a penitentiary establishment.
In contrast, the screening for injuries on arrival at Penitentiary establishment No. 13 in Chişinău was generally of a better standard: newly arrived remand prisoners were examined by prison health-care staff shortly after admission and reports describing injuries observed during medical screening were forwarded to the prosecuting authorities. However, the recording of injuries was not fully satisfactory: in a number of instances, the description of lesions was succinct and the records rarely contained the prisoners’ accounts as to the origin of their injuries.
... 28. ... A new system of free legal assistance for indigent criminal suspects came into operation in mid-2008, following the entry into force of the Law on Legal Aid of 26 July 2007. However, a considerable number of detained persons interviewed by the delegation complained about the quality of ex officio lawyers. The inaction of certain ex officio lawyers during the April 2009 events when their clients displayed visible injuries or alleged ill-treatment provoked scepticism about their independence from the police and the prosecuting authorities.
29. The right of persons in police custody to have access to a doctor (including to one of their own choice), is still not expressly guaranteed by law... Many persons who were in police custody in the context of the April 2009 events complained that, despite repeated requests for independent medical assistance, they had been refused such assistance. In some cases, police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned. Further, it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it. Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill-treatment, but it may also have serious repercussions on the health of persons in police custody. Clearly, access to an independent doctor should not be left to the discretion of police officers.
... 40. Control of police establishments by public prosecutors has been reinforced over the years since the first CPT visit to Moldova in 1998. Shortly after the post-election events in April 2009, prosecutors paid visits to police detention facilities. The delegation was informed that they had received and processed a number of complaints of ill-treatment in the context of such inspections.
However, most persons met by the delegation who had been detained at the time claimed that, before such visits, they had been warned by police staff not to make any complaints to the visiting prosecutors. Further, prosecutors were apparently accompanied by police staff and did not seek to have private interviews with detained persons.
... 43. ... In the aftermath of the April events, a number of persons met by the delegation had been interviewed in private by members of the [Consultative Council for the Prevention of Torture] while in detention. ... Further, between 9 and 23 April 2009, on eight occasions, members of the Council had reportedly not been able to carry out their tasks; denial of access (on 9 and 11 April), delays in access (of up to two hours) and refusal to allow them to consult custody registers were among the major problems encountered. Police officers met by the delegation excused the problems of access by a lack of information, in particular as regards the composition of the Council.
44. In short, the post-election period in April 2009 had been a litmus test of the ability of independent visiting bodies to carry out their functions effectively. However, the delegation’s findings suggest that there had been serious shortcomings in their operation.
... 61. The CPT recognises that the high number of cases possibly involving police ill-treatment in relation to the April events constituted a significant challenge for the prosecuting authorities in carrying out their task. However, this should have prompted them to adopt a more proactive and holistic approach, with a particular emphasis on establishing a timeline of the incidents, including all the police officers involved, and all the alleged victims, potential witnesses and outside professionals (e.g. medical staff). Indeed, many complaints and other information indicative of ill-treatment consistently referred to the same incidents, at the same locations, with the same patterns of alleged ill-treatment and, possibly, the same police officers involved. It is clearly a flawed approach to carry out individual investigations into such cases while treating them as unrelated episodes and without proper co-ordination.
... 63. In almost all the cases examined at the time of the visit, the action taken had still not led to the identification of the perpetrators of alleged ill-treatment and/or any officials who may have condoned or encouraged it. Prosecutors met by the delegation explained this situation by the impossibility in most cases to identify suspects because police officers were wearing balaclavas, or the fact that the position of the victims did not allow them to see the police officers allegedly inflicting blows. However, it clearly appeared during the 2009 visit that no steps had been taken by the prosecuting authorities in a number of cases where victims indicated that they would recognise the police officers involved in the alleged ill-treatment...
Further, key information that could have led to the identification of potential suspects and witnesses among members of the BPDS “Fulger” (such as apprehension reports) had not yet been examined in the context of investigations into alleged ill-treatment; by contrast, such information was being reviewed by prosecutors investigating mass disorder and usurpation of power on 7 April 2009. It is also noteworthy that the responsibility of senior Internal Affairs officials and police officers was not being addressed by the prosecutors dealing with cases of alleged ill-treatment; in the CPT’s view, the fact that such an important issue was being dealt with by prosecutors investigating mass disorder and usurpation of power could seriously undermine the impartiality of any investigative action taken in this respect.
66. When investigating cases possibly involving ill-treatment, the prosecuting authorities do not have an obligation of result; however, they are under an obligation to take appropriate investigative action. Efforts had generally been made by the prosecuting authorities to react to allegations of police ill-treatment in relation to the April 2009 events, even in the absence of a formal complaint, when this had been brought to their attention. However, the above findings suggest that in many cases the competent prosecutors had not taken all reasonable steps in good time to secure evidence and had failed to make genuine efforts to identify those responsible.
It should also be stressed that many alleged victims interviewed by the delegation, including those who had not yet lodged official complaints, as well as their lawyers, expressed a general lack of confidence in the capability and determination of the prosecuting authorities, including military prosecutors, to carry out effective investigations into cases of police ill-treatment. In the CPT’s view, if a police complaints mechanism is to enjoy public confidence, it should not only be independent but should be seen to be independent of the police.
In their letter of 26 October 2009, the Moldovan authorities informed the Committee that, following the visit, the prosecuting authorities “moved to other investigation tactics”, placing a particular emphasis on the accountability of senior police officers for their actions or lack of action...”
35. The relevant parts of the Report of the parliamentary inquiry commission tasked with the elucidation of the causes and consequences of the events following the general elections held on 5 April 2009 in Moldova (“the Commission”) read as follows:
“IV. 2.1.1. Number and profile of detainees
... in accordance with the registers held by [establishments belonging to the Ministry of Internal Affairs], 571 individuals were arrested on 7-12 April 2009. ... [The] majority of these individuals were arrested on 7-9 April 2009.
In addition, an analysis of various detention records and other data provided by the State authorities revealed that the arrest of almost 70 people had not been reflected in the detention centre records. In a number of cases, the registers did not reflect that the detainee had been taken to hospital due to [his or her] injuries suffered. Many of the entries as to the reason for the arrest made during 7-12 April 2009 noted simply “from Stephen the Great (Ştefan cel Mare) St.”, “from Parliament”, “from the Presidential Palace”, “near Government [offices]” or even “for clarification” and “from office no. ...” (probably the office number in the relevant police station from which the detainee had been transferred) without any further details.
Even though the authorities declared that 274 police and other officers had been injured during the events of 7 April 2009, only three people were arrested for causing such injuries, most others being accused of minor hooliganism and refusing to obey or insulting the police. The Commission concluded that “the simple presence of people in the perimeter of the [relevant few] streets and buildings amounted to ‘sufficient grounds’ for arresting [them] and bringing them to the police stations.”
The Commission found that “all the concerns expressed by international organisations, the media, NGOs and society as a whole concerning the inadequate and disproportionate actions of the police after the events of April 2009 have been fully justified. Most people were detained by the police arbitrarily, in the absence of any reasonable suspicion of having committed a crime; the operative services of the Ministry of Internal Affairs have failed to identify the people who committed violent acts against their own colleagues from the Ministry of Internal Affairs; the police committed ill-treatment and acts of torture against individuals held in detention and allowed serious violations of procedural rights guaranteed by the Constitution...”
IV. 2.2. Actions of the courts
For the first time in the modern history of the Republic of Moldova, cases against detainees whom the police suspected of having committed administrative or criminal offences connected with the 7 April events were examined inside police sections.
... M. D., a former investigating Judge of the Buiucani District Court, [stated to the Commission that he] only examined cases concerning administrative offences on 10 April 2009 at the GPD, between approximately 13:00 and 16:40. [He] examined nine cases at the GPD... Nobody complained of ill-treatment and neither did their lawyers. Moreover, no signs of ill-treatment were apparent.”
The Commission also drew up statistical data, according to which the judges accepted 80% of all the requests made by the prosecutors for the ordering of the detention of individuals accused of various criminal offences in relation to the April 2009 events. Of the total of 148 such requests, 88% were examined outside courtrooms, and a majority of such cases were examined on the GPD’s premises.
According to the data in the Commission’s possession, Judge M. D. examined 15 cases on 10 April 2009 at the GPD. He accepted all the prosecutor’s requests, spending between 22 and 30 minutes on each case.
Most of the decisions taken by each investigating judge in the cases connected with the April 2009 events were virtually identical. Of the 60 appeals lodged by defence lawyers against the decisions remanding their clients, 95% were accepted by the Court of Appeal and the detainees were either released or subjected to preventive measures not involving detention.
All the judges who had examined cases connected with the April 2009 events declared to the Commission that they had not seen any evident signs of ill-treatment on the persons brought before them. Only in one case had a detainee and his lawyer complained of ill-treatment. The Commission noted the discrepancy of these statements with the statements of a number of victims, who had allegedly complained of ill-treatment to the judges, to no avail.
According to a reply from the Prosecutor General’s Office, 105 complaints were received concerning alleged ill-treatment by the police during 7 and 8 April 2009. Following medical examinations in respect of 100 of them, 64 were found to have injuries of various degrees of seriousness. In 33 cases criminal investigations have been initiated as a result.
The Commission found that “the actions of prosecutors in identifying, investigating and punishing cases of torture and ill-treatment during the initial phase were “reserved”, sometimes even suggesting that detainees had painted injuries on their bodies... At the same time ... it was established that prosecutors, as well as judges, did not take firm action to stop acts of torture, even when signs of violence had been visible.”
The Commission concluded, inter alia, that “the actions of the police on the night of 7 April 2009 were disproportionate and unlawful.””
36. In their report “Liberty, Security and Torture: April 2009 events in Moldova”, the Institute for Human Rights in Moldova (IDOM) and the Resource Centre for Human Rights (CReDO) found, inter alia, that:
“Police [had] responded with blunt brutality and untargeted, largely unjustified arrests, beatings and intimidation;
Arrests and detention in the Ministry of Interior custody ha[d] been widely and systematically used as a response by the police;
Comprehensions and detentions went in a substantial number of cases with no explanations of the motives and reasons;”
The authors of the report also found that 64% of those detained had claimed that they had been beaten by the police during their detention, and 81% had been beaten during their apprehension. This police brutality resulted in at least two confirmed deaths, with ten more suspected cases. Some 40% of those detained during the April 2009 events were not given access to a lawyer within reasonable time and 79% of all legal representation had been entrusted to State-appointed legal aid lawyers.
37. The relevant part of the Declaration of the Moldovan Bar Association (“the MBA”) of 17 April 2009 reads as follows:
“[The MBA] condemns both the violent actions of certain persons during the protests of 7 April 2009 and the disproportionally violent and repressive actions of the State authorities after 7 April 2009.
... [The MBA] declares unacceptable and condemns instances of refusing lawyers access to their clients and to the materials in the relevant case files and [the fact] that many arrestees were refused access to a lawyer of their own choice, having been offered, against their will, legal assistance by lawyers [appointed under the legal aid scheme], some of whom had had a purely formal role and who, by their participation, validated the unlawful acts committed in respect of the detainees...”.
VIOLATED_ARTICLES: 3


ITEMID: 001-119677
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF CHORNIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-b - Preparation of defence) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Mark Villiger;Myroslava Antonovych;Paul Lemmens
TEXT: 5. The applicant was born in 1965 and lives in the village of Khodorkivtsi, Ukraine.
6. On 17 December 2004, at a hearing in criminal proceedings against the applicant, the Zhydachivskyy District Court (“the Zhydachivskyy Court”) found the applicant guilty of non-payment of wages to employees of his business between November 2001 and January 2004. In court the applicant testified that he was the owner, director and main accountant of the business E. He paid his employees’ wages out of his own pocket; however, none of the payments went through the books. The applicant’s employees gave evidence that he had been paying their wages, but this was disregarded by the court since they were still employed by him. The court fined the applicant 1,700 Ukrainian hryvnias (UAH) (at the material time worth approximately 236 euros (EUR)).
7. According to the applicant, he was not provided with a copy of the judgment. The Court has been provided with a copy of the judgment. It comprises two pages and bears the annotation: “This judgment was drafted in the deliberation room in one copy only”.
8. As part of their submissions the Government lodged a copy of the applicant’s request of that day seeking permission to read the court transcript, upon which a court clerk had written that “the applicant received a copy of the judgment on 17 December 2004 (2 pages)”.
9. On 27 and 29 December 2004 the applicant and his lawyer respectively lodged appeals against the decision of 17 December 2004. In these appeals they mainly complained that the court had disregarded the evidence given by the employees.
10. On 10 February 2005 the Zhydachivskyy Court informed the applicant and his lawyer that the applicant’s case would be considered at an appeal hearing on 15 March 2005. However, on the day the hearing was due to take place the Court of Appeal returned the case file to the first-instance court with a request for the documents to be properly organised.
11. On 29 March 2005 the Zhydachivskyy Court informed the applicant and his lawyer that the applicant’s case would be considered at an appeal hearing on 26 April 2005.
12. On 26 April 2005 the Lviv Regional Court of Appeal upheld the lower court’s decision of 17 December 2004. The court reiterated the first-instance court’s arguments and noted that the applicant had not submitted any documentary evidence in support of his statement that he had paid his employees’ wages. According to the applicant, only the operative part of the judgment of 26 April 2005 was read aloud to him.
13. On 11 May 2005 the applicant sought permission from the Zhydachivskyy Court to obtain access to the case file. His request was refused, on the basis that the case file had not yet arrived from the Court of Appeal.
14. On 13 May 2005 the applicant requested a copy of the judgment of 26 April 2005 from the Lviv Regional Court of Appeal but it appears that no response was given.
15. On 19 May 2005 the applicant was again informed by the Zhydachivskyy Court that his case file had not arrived from the Court of Appeal.
16. On 23 May 2005 the applicant lodged an appeal on points of law in which he stated that he still had not received a copy of the appellate court’s judgment of 26 April 2005.
17. On 23 June 2005 he received a copy of the judgment of 17 December 2004.
18. On 19 August 2005 the applicant lodged an additional appeal on points of law in which he informed the court that he had received a copy of the judgment of 17 December 2004 but had not yet received a copy of the judgment of 26 April 2005.
19. On 16 February 2006 the Supreme Court of Ukraine, in the applicant’s absence, rejected his request for leave to appeal on points of law.
20. On an unspecified date the applicant received a copy of the judgment of 26 April 2005.
21. Article 344 of the Code of Criminal Procedure, in force at the material time, required that a copy of a judgment be served on a convicted or acquitted person within three days of judgment being pronounced.
22. Article 349 provided for a fifteen-day time-limit for lodging an appeal against a judgment. During this time the case file was to remain at the court allowing the parties to consult it upon request.
23. Article 386 provided that an appeal on points of law could be lodged within one month of the appellate court’s judgment being pronounced. During this time the case file was to remain at the court “[in charge of] executing the judgment”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b