ITEMID: 001-58905
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF AKKOC v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (estoppel);No violation of Art. 10;Violation of Art. 2 (failure to protect life);Violation of Art. 2 (inadequacy of investigation);Violation of Art. 13;Violation of Art. 3;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 10. The applicant is a former teacher and former head of the Diyarbakır branch of the Education and Science Workers Union, Eğit-Sen. On 31 October 1992 the applicant made a statement to the Diyarbakır Söz newspaper, giving an account of a meeting which had taken place on 27 October 1992 between the applicant and a delegation of Eğit-Sen and the National Education Director. The applicant stated that the teachers were verbally abused, harassed and in some cases assaulted by the police. This account was published in an article titled “Eleven teachers detained in Diyarbakır”.
11. On 14 May 1993 the Diyarbakır Provincial Education Disciplinary Committee decided, as a penalty for the statement made to the newspaper without permission, to suspend the promotion of the applicant to a higher grade of teacher for one year, pursuant to section 125/D-g of Law no. 657, which prohibited civil servants from giving information or giving statements to the press, news agencies, radio or television without authorisation.
12. The decision was confirmed by the Diyarbakır Administrative Court on 4 October 1994. The court noted that section 15 of Law no. 657 prohibited public officials from making announcements or statements relating to their public-sector work to the press and that only the officials authorised by the minister could do so. While all citizens had the right to express their thoughts and opinions within the framework of the rights under the Constitution, not all citizens had the same opportunity to exercise this right to the same degree. As stated in a decision of 14 December 1993 (1993/4214) of the Eighth Division of the Supreme Administrative Court, State officials were required to exercise their freedom of expression in a more measured manner and with more care in their statements relating to their superiors and public officials. In this case, when the applicant expressed her thoughts and the negative aspects observed by her in the continuing arguments between teachers and police officers, she was criticising and accusing the administration. Accordingly, there was no contravention of the legislation in the decision to impose a disciplinary sanction on the applicant for the actions which were contrary to the special requirements of her service. Her application to annul the decision was unanimously rejected.
13. The applicant appealed to the Supreme Administrative Court, which on 5 December 1995 sent the case back to the Administrative Court to revise only the severity of the penalty. It agreed that civil servants had to exercise their freedom of expression with greater care and sensitivity when making announcements about their superiors and public duties. Since the applicant had criticised the administration, which was in breach of the Code of Conduct, it was appropriate to impose a disciplinary sanction but, in order to achieve a fair balance between the offence and the sentence, a lighter sentence should have been imposed.
14. On 3 April 1996 the Administrative Court maintained its decision and the penalty. The applicant appealed again to the Supreme Administrative Court.
15. On 16 October 1998 the Supreme Administrative Court observed that the prohibition in section 15 of Law no. 657 related to State officials not being allowed to give statements to the press relating to their own powers, duties and responsibilities. The applicant had expounded her personal opinion on current issues not relating to her duty, exercising her right of expression and communication to others, within the framework of the freedom of thought and opinion guaranteed by the Constitution. Since this did not fall within the scope of the aforementioned section, there was no question of any disciplinary sanction being imposed. Accordingly, the procedure by which the applicant had been punished by the suspension of one year's promotion in application of section 125/D-g of Law no. 657 was unlawful and the decision of the Administrative Court was not correct. The Administrative Court's decision was consequently annulled.
16. On 17 February 1999 the Administrative Court adopted the reasoning of the Supreme Administrative Court and annulled the disciplinary sanction imposed on the applicant.
17. The applicant's husband, Zübeyir Akkoç, was of Kurdish origin and also a teacher involved in the Eğit-Sen trade union. On 13 January 1993, at about 7 a.m., Zübeyir Akkoç was shot dead on his way to work at a primary school. Ramazan Aydın Bilge, who was accompanying him, was also killed. No classic autopsy was carried out. Two gendarmes arrived at the scene of the incident, allegedly having been notified by radio. They made no attempt to discover in which direction the perpetrators had fled. They took only one statement, from Abdullah Elgören, who had helped place Zübeyir Akkoç's body in a taxi to be taken to hospital. This was notwithstanding the crowd that had gathered at the scene according to Abdullah Elgören's statement.
18. Prior to her husband's killing, and following the incident at the National Education Directorate, the applicant had received several threats over the telephone and had been harassed by the security forces. In the telephone calls, she was told: “It is your turn, we are going to kill you too.” She reported the threats to the public prosecutor but her complaints were ignored. Her husband had been detained by the police on several occasions prior to his death. When she was detained in February 1994, the applicant claimed that members of the security forces told her that they had killed her husband.
19. The public prosecutor opened a file (no. 1993/339) into the killing, classifying it as an “unknown perpetrator” killing. On 27 March 1997 the prosecutor issued an indictment against Seyithan Araz, a student, for involvement in six murders and a number of assaults. These included the killing of Zübeyir Akkoç, but not that of Ramazan Aydın Bilge. Seyithan Araz was alleged to have carried out activities for Hizbullah. In his statement of 17 March 1997, Seyithan Araz told the public prosecutor that he was not a member of Hizbullah and that the 26-page statement signed by him at the headquarters of the anti-terrorism branch of the Diyarbakır Security Directorate had been obtained through torture and that he refuted its contents.
20. On 4 June 1997 Seyithan Araz maintained his denials before the Diyarbakır National Security Court no. 4. On 14 August 1997 evidence was received from three of the victims of the assaults listed in the indictment that they did not recognise any of the defendants. On 10 December 1997 the court ordered the release of Seyithan Araz, due to the lack of any evidence justifying his continued detention.
21. On 23 September 1999 the court acquitted Seyithan Araz for lack of sufficient evidence to prove any of the charges.
22. The facts of this part of the case, in particular the events during the detention of the applicant, were disputed by the parties.
The Commission took oral evidence in respect of the applicant's allegations of torture during police custody from 13 to 22 February 1994 and interference with the right of individual petition arising out of three periods of detention – 13 to 22 February 1994, 26 to 27 September 1995 and 14 October 1995. Commission delegates heard evidence from the applicant, her mother, Ramazan Sücürü (head of the anti-terrorism branch at Diyarbakır), Taner Şenturk and Hasan Pişkin (officers from the anti-terrorism branch who interrogated the applicant during the period 13 to 22 February 1994), Dr Buldağ (the doctor who signed the medical report on the applicant's release from custody) and Enver Atlı (a former headmaster taken into custody with the applicant on 26 September 1995). The public prosecutor who had seen the applicant prior to her release on 22 February 1994 had been called as a witness, but he died before the hearing took place.
23. On 13 February 1994, shortly after midnight, police officers came to the applicant's home and carried out a search. The officers took the applicant away, with her anorak pulled over her head. After a visit to a doctor, she was taken to the Diyarbakır Security Directorate, where she was held in custody at the headquarters of the anti-terrorism branch until her release on 22 February 1994.
24. During her ten days in custody, the applicant was subjected to various forms of ill-treatment, including sexual abuse and psychological pressure. She was interrogated by police officers, who accused her of being involved with the PKK (the Workers' Party of Kurdistan) and questioned her about imminent elections and whether she was a candidate. She was also asked about her application to the Commission and told that this was the same as joining the PKK in the mountains. She thought she saw a piece of paper, which was her letter of authority sent to Kevin Boyle – a lawyer practising in the United Kingdom, who has been involved in many cases brought against Turkey – with her application.
25. Over the period of her detention, the applicant was exposed to the following treatment. She was generally blindfolded when taken out of her cell; she was stripped naked on numerous occasions and, on one occasion, forced to walk a gauntlet, naked, between officers who touched her and abused her verbally; photographs were taken of her naked; on many occasions she was taken to a room where she was doused in hot and cold water, the cold water being hosed on her with such force that she could hardly stand; she was subjected to electric shocks on several occasions, a wire being attached to her toe and once to a nipple; there was an attempt to suspend her by her arms from the ceiling, which ended when a scar on her stomach was noticed; she was struck on the chin by a blow which knocked her to the ground; her cell was floodlit and loud music was played; she was handcuffed to a door for a period of two days and nights and forced to listen to the sounds of other persons being ill-treated; her hair was pulled and she was hit, including a blow to her foot with a stick. She was told that her children had been brought into detention and were being tortured.
26. On 18 February 1994 the applicant signed a statement drawn up by the police, stating that she was a member of the PKK and implicating her in various propaganda activities conducted by the PKK. The statement included the information that she had made an application to the Commission about her husband's murder.
27. On 22 February 1994 the applicant and sixteen other detainees were taken by police officers to the emergency ward of the Diyarbakır State Hospital, where Dr Buldağ signed a report stating that they had not suffered any physical blows. She described the examination as involving the doctor asking them collectively in the presence of the police if anyone had any complaints or wanted a medical examination. She stated that she requested a medical examination and showed him the injuries on her head and toe. The applicant was then taken before a public prosecutor. She told him that she had been ill-treated, showing him some of her injuries, and that she had signed a statement under pressure. He ordered her release.
28. A few days after her release, the applicant sought treatment. She had a terrible pain in her jaw. An ear-nose-throat specialist arranged for an X-ray but refused to sign a report when the applicant told him that she had been in custody. Another X-ray was taken and treatment given at the university clinic. The applicant believed that her jaw had been broken and submitted the X-rays to the Mardin Assize Court during her trial on charges relating to the PKK. These X-rays were later made available to the Commission. It was agreed by the parties that they did not disclose any fracture.
29. Following this period of detention, the applicant had a number of problems with her health. She provided the Commission with information and prescriptions relating, inter alia, to eczema on her ear, a respiratory infection and pains in her leg. On 30 October 1995 she went to the Ankara Treatment Centre of the Human Rights Foundation, in connection with the psychological problems she had been experiencing since this time. Her symptoms included loss of memory, trembling of the hands, indecision, pain and numbness in parts of her body and insomnia. A psychological examination had disclosed manifest anxiety, pessimism, inability to stand, slight impairment of attention and concentration and lack of self-confidence. Chronic post-traumatic stress disorder was diagnosed and medication (an antidepressant (fluoxetin) and an anxiolitic) was prescribed. The applicant returned for further consultations on 12 December 1995, and 12 January and 14 April 1996. On the last occasion, her complaints had diminished considerably and she was advised to continue the medication for another two months.
30. In reaching its findings, the Commission accepted the evidence of the applicant, assessing her as a lucid and convincing witness who gave the impression of being honest and credible. Her evidence was supported by that of her mother who gave evidence as to the terrible state the applicant was in on her release from custody and by the report from the Ankara Treatment Centre of the Human Rights Foundation concerning her psychological symptoms. It found the evidence of the police officers to be evasive, inconsistent and unreliable. It also found that the evidence of Dr Buldağ was unreliable, observing that the examinations of detainees in the busy emergency ward appeared to be undertaken with reluctance and were carried out cursorily, without any concern for complaints about ill-treatment.
31. On 26 September 1995 the applicant was apprehended by the police along with a friend and colleague, Enver Atlı. They were taken to a doctor and then to the Security Directorate, where she was stripped and searched. She was blindfolded and questioned about the ill-treatment she had been subjected to in 1994. It was mentioned that she had complained at the European level. She was left in a cell where it was extremely cold. Enver Atlı was also blindfolded during questioning by officers when he was asked about his relations with the applicant and whether she was a member of the PKK. They were released at about 6.30 p.m. on 27 September 1995. The release record of that date indicated that they had both been detained for investigation about membership of and activities for the PKK but that the examination established that they were not involved.
32. The Government alleged that the applicant had been detained because of the forgery of a document. However, the Commission found that there was no evidence to support this assertion. There was insufficient material to support a conclusion that she was taken into custody because of her application to the Commission. It noted, however, the lack of any concrete elements to justify her detention in respect of allegations of PKK involvement, which gave the incident the appearance of a “fishing expedition”.
33. The applicant was summoned to give a statement to the public prosecutor. Although he did not wish to see her until Monday 16 October 1995, police took her to the Security Directorate early in the morning on Saturday 14 October 1995. She remained sleeping on a sofa until a senior officer allowed her to go home in the afternoon. She returned at 9 a.m. with her mother on 16 October 1995. They were kept waiting in a locked room until the afternoon, when she was questioned by the prosecutor about a publication of the Human Rights Association.
34. On 3 May 1995 the Diyarbakır public prosecutor issued a decision of non-prosecution against two officers, Mustafa Tarhan Şenturk and Hasan Pişkin, in respect of an allegation that the applicant had been tortured in custody and that her jaw had been broken. The decision referred to the defendants' denial of the charges and to the doctor's report that the applicant bore no signs of blows on her release. Due to the absence of evidence, it was decided not to pursue the investigation.
35. The Government have since provided further information. On 25 May 1999, in a decision of non-jurisdiction, the Diyarbakır public prosecutor referred to the allegations made by the applicant that she had been tortured during interrogation. As he had no jurisdiction, he transferred the case to the Diyarbakır Provincial Administrative Council.
36. The contents of the investigation file concerning the death of the applicant's husband were provided to the Commission. Further documents concerning the proceedings against Seyithan Araz were provided to the Court.
37. The applicant lodged with the Commission a copy of the so-called Susurluk report, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.
38. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.
39. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The report made reference to a certain Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil”, detailing his involvement in unlawful acts in the south-east and his links with MİT (the Turkish intelligence service):
“... Whilst the character of Yeşil, and the fact that he along with the group of confessors[] he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnapping, etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MİT may use a lowly individual ... it is not an acceptable practice that MİT should have used Yeşil several times ... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MİT ... As a result of the State's silence the field is left open to the gangs ... [p. 26].
... Yeşil was also associated with JİTEM, an organisation within the gendarmerie, which used large numbers of protectors and confessors [p. 27].
In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir[] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk[] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter[] had also been planned and carried out by A. Demir [p. 37].
All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[]). Other journalists have also been murdered [p. 74][].”
40. The report concludes with numerous recommendations, such as improving coordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of confessors; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken.
41. The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a parliamentary investigation commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in the south-east region and referred to information that Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings.
42. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
43. Under the Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61-62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duties is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
44. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
45. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
46. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 45 above) also applies to members of the security forces who come under the governor's authority.
47. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9-14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 43 above) or with the offender's superior.
48. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
49. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
50. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 49), provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
51. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
52. The European Committee for the Prevention of Torture (CPT) has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources, containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third periodic visit took place at the end of 1992. Further visits took place in October 1994, August and September 1996 and October 1997. The CPT's reports on these visits, save that of October 1997, have not been made public, such publication requiring the consent of the State concerned, which has not been forthcoming. The CPT has issued two public statements concerning its visits to Turkey.
53. In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely, “Palestinian hanging”, electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. Specifically, it found that officers of the anti-terrorism branch of the Diyarbakır police frequently resorted to torture and/or other forms of severe ill-treatment, both physical and psychological.
On its second visit in 1991, it found no progress had been made in eliminating torture and ill-treatment by the police. Many persons complained of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. Torture and other forms of severe ill-treatment continued unabated at the headquarters of the anti-terrorism branch of the Diyarbakır police. On its third visit, from 22 November to 3 December 1992, the CPT delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. On this visit, the CPT had visited Adana, where a prisoner at Adana Prison displayed haematomas on the soles of his feet and a series of vertical purple stripes (10 cm long by 2 cm wide) across the upper part of his back, consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody. At the headquarters of Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remains widespread in Turkey”.
54. In its second public statement, issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of visits in 1996, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by the police. It referred to its most recent visit in September 1996 to police establishments in Adana, Bursa and Istanbul, when it also went to three prisons in order to interview certain persons who had very recently been in police custody in Adana and Istanbul. A considerable number of persons examined by the delegation's forensic doctors displayed marks or conditions consistent with their allegations of recent ill-treatment by the police and, in particular, of beating of the soles of the feet, blows to the palms of the hands and suspension by the arms. It noted the cases of seven persons who had been very recently detained at the headquarters of the anti-terrorism branch of Istanbul Security Directorate and which ranked among the most flagrant examples of torture encountered by CPT delegations in Turkey. They showed signs of prolonged suspension by the arms, with impairments in motor function and sensation which, in two persons, who had lost the use of both arms, threatened to be irreversible. It concluded that resort to torture and other forms of severe ill-treatment remained a common occurrence in police establishments in Turkey.
55. The CPT underlined the importance of the preventive role of doctors:
“Particular reference should be made to the work of doctors appointed by the State to carry out forensic tasks, a matter to which the CPT has given considerable attention in the course of its dialogue with the Turkish authorities. The present system of detained persons being routinely examined by a forensic doctor at the end of their period of police custody is, in principle, a significant safeguard against ill-treatment. However, certain conditions must be met: the forensic doctor must enjoy formal and de facto independence, have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope. If these conditions are not met – as is frequently the case – the present system can have the perverse effect of rendering it all the more difficult to combat torture and ill-treatment.
A series of circulars have been issued by the Ministry of Health on this subject; in particular, a Ministry of Health Circular of 22 December 1993 – subsequently endorsed in the Minister of the Interior's instructions of 16 February 1995 – sets out the required contents of forensic certificates drawn up following the detention of persons detained by law enforcement agencies. Despite this, the great majority of forensic certificates seen by the CPT over the last three years have not met the requirements of that circular.
Measures need to be taken to ensure that there is full compliance with all the above-mentioned circulars and, more generally, that doctors called upon to perform forensic tasks can carry out their work free from any interference. Further the necessary resources should be made available in order to allow the training programme for doctors called upon to perform forensic tasks – recently devised by the Ministry of Health – to be implemented throughout Turkey without delay.”
56. The CPT again stressed the need for public prosecutors to react expeditiously and effectively when confronted by complaints of torture and ill-treatment and the need for the reduction of maximum periods of police custody.
57. The CPT repeated in this report, inter alia, its concerns about the forensic examination of persons in police custody, emphasising that examination of persons in custody by a doctor can be a significant safeguard against ill-treatment, provided the doctors concerned enjoy formal and de facto independence, have a mandate which is sufficiently broad in scope and have been provided with specialised training. It had found, however, that the standard forensic medical form set out in the Ministry of Health circular of 25 January 1995 was not used in many forensic services, the doctors recording their findings on a piece of paper devoid of headings, omitting to record the allegations of the detained person and failing to draw conclusions. It recalled that it had previously stressed that it was essential for forensic certificates drawn up after examination of a detained person to contain an account of the relevant statements of the detainee, an account of the objective medical findings based on a thorough medical examination and the doctor's conclusions in light of those two elements, which should include an assessment of the degree of consistency between any allegations made and the objective medical findings.
58. It expressed the hope that generalised use of the standard forensic medical form would put an end to the collective forensic examination of groups of detained persons, an undesirable practice of which it had found some evidence during its visit. It had also noted that certain forensic examinations were conducted in the presence of the police officers who had brought the detained person and that the doctor handed an open copy of the report to these police officers. It stressed that examinations should always be conducted out of the hearing range and out of sight of the police officers, unless the doctor requested otherwise in a particular case. It welcomed the steps taken to ensure that the forensic reports be forwarded in sealed envelopes to the public prosecutor and the head of the police department concerned.
VIOLATED_ARTICLES: 13
2
3
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-99919
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF PANOV v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant, Ms Tatiana Panov, is a Moldovan national who was born in 1954 and lives in Chişinău.
6. Since the 1980s the applicant rented an apartment owned by the Municipality.
7. In 1989 the building in which the apartment was situated was damaged with the result that it was formally declared to be no longer fit for habitation. The Municipality therefore decided to provide all the inhabitants with other accommodation.
8. Between 1990 and 2000 the applicant requested the Municipality on numerous occasions to provide her with other accommodation, but to no avail.
9. On an unspecified date in 2000 the applicant instituted civil proceedings against the Municipality. On 19 February 2001 the Centru District Court granted the application and ordered that the applicant be provided with alternative accommodation. On 27 November 2001 the Court of Appeal upheld the judgment of the District Court and the judgment became final.
10. Since the final judgment was not complied with by the Municipality, the applicant lodged an action with the Centru District Court seeking a change in the manner in which the enforcement of the judgment was to be carried out. In particular, she claimed money from the Municipality in lieu of alternative accommodation.
11. On 22 July 2003 the Centru District Court upheld the applicant's action and ordered the Municipality to pay her the price of the apartment in the amount of 11,000 United States Dollars (USD). However, that decision was also not enforced. On 18 August 2004 the applicant lodged her application with the Court, complaining of the non-enforcement of the judgment of 22 July 2003. On 14 September 2004, the Centru District Court quashed the judgment of 22 July 2003 following a revision request lodged by the Municipality and reinstated the judgment of 19 February 2001.
12. The judgment of 27 November 2001 has not been enforced to date and the applicant continues to live in her old apartment.
13. According to the Government an apartment building in which the applicant's apartment will be located is currently under construction by the Chişinău Municipality.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61384
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TIMOFEYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Georg Ress
TEXT: 7. The applicant was born in 1948 and lives in Orsk.
8. In 1981 criminal charges were brought against the applicant for dissemination of anti-Soviet propaganda. On 30 July 1981 the police searched his home and confiscated certain items – a radio, audio records, books, newspaper clippings and manuscripts – which he had allegedly used in his unlawful activity.
9. On 7 April 1982 the Orenburg Regional Court held that the applicant was not guilty on the ground of insanity and ordered him to be placed in a mental asylum.
10. On 23 April 1986 the Oktyabrskiy District Court of Orsk found that the applicant's mental health had improved and that he could be released.
11. On 15 September 1992 the Orenburg Regional Public Prosecutor's Office issued a statement to acknowledge that the applicant had been unlawfully persecuted by the State. The applicant was reinstated in his rights.
12. In the course of 1995 to 1997 the applicant made several unsuccessful attempts to recover the property that had been confiscated in 1981. His requests to prosecutors' offices and the organisations then in possession of the property were rejected.
13. On 28 June 1996 the applicant brought a claim for repossession against the Orenburg Regional Public Prosecutor's Office and the Orsk City Committee of the Voluntary Society for Assistance to the Army, Air Force and Navy. He also brought a claim for damages against the Orsk City Council.
14. On 22 July 1998 the Leninskiy District Court of Orsk granted the applicant's claims in part and ordered the Federal Treasury Department to pay the applicant 2,570.92 Russian roubles (RUR) compensation and RUR 200 by way of legal costs. On appeal, the judgment was upheld by the Civil Chamber of the Orenburg Regional Court on 8 December 1998.
15. On 5 February 1999 the applicant submitted a writ of execution in respect of the judgment of 22 July 1998 to the registry of the Oktyabrskiy District Court.
16. He was not notified in time whether enforcement proceedings had been opened, or what action had been taken to execute the judgment. For this reason, he issued proceedings against the bailiff in charge of the execution. On 14 May 1999 the Oktyabrskiy Court found in the applicant's favour, holding that the bailiff had acted unlawfully. The applicant was also informed that responsibility for enforcement of the judgment had been passed to a different bailiff's service – the Leninskoye Bailiff's Service of Orenburg.
17. On 25 May 1999 the Leninskiy Court issued clarification on how its judgment of 22 July 1998 was to be enforced. It confirmed that, even though the Ministry of Finance was the defendant in the case, the compensation should be recovered from the Treasury Department – the authority liable for debts of the Ministry. The applicant appealed, insisting that the debtor's bank account details should be included in the operative part of the judgment to make the enforcement easier. The appeal was dismissed on 8 July 1999.
18. As no progress was made in the enforcement proceedings, on an unspecified date the applicant issued fresh professional negligence proceedings against the bailiff. On 28 July 1999 the Leninskiy District Court of Orenburg examined the complaint and dismissed it. It found that the bailiff had lawfully stayed the enforcement proceedings because an acting Public Prosecutor of the Orenburg Region had initiated supervisory-review of the judgment of 22 July 1998. The court stated that under national law, enforcement could be stayed pending supervisory review. The applicant's appeal was dismissed on 23 September 1999 by the Regional Court.
19. On 3 February 2000 the bailiff attempted to attach the accounts of the Federal Treasury Department. The Department challenged the bailiff's actions in court. The complaint was granted by the Central District Court of Orenburg on 23 March 2000. The court concluded that the seizure of the Department's assets had been unlawful because, according to the clarifications provided on 25 May 1999 concerning the enforcement, the debt should have been recovered from the Treasury of the Russian Federation. The applicant had not been aware of these proceedings, and was not summoned to the hearing. He successfully raised this point on appeal to the Orenburg Court. The decision of 23 March was quashed and a fresh examination of the case was ordered.
20. On 9 February 2000 the Leninskiy Court refused the applicant's application to have the judgment enforced in a different way. His appeal against that decision was dismissed on 21 March 2000.
21. On 10 and 21 February 2000 the bailiff stayed the enforcement proceedings because the Treasury Department had requested supervisory-review of the judgment of 22 July 1998.
22. In March 2000 the applicant learned that the President of the Regional Court had stayed the execution because the supervisory-review of the judgment of 22 July 1998 had been in progress. The applicant lodged a complaint against the President, which was dismissed on 12 April 2000 by the Sovetskiy District Court of Orsk as not amenable to judicial review. The applicant was later informed that the stay of execution had been lifted.
23. On 27 September 2000 the Senior Bailiff of the Leninskoye Bailiff's Service decided that the execution should be stopped as the writ of execution did not unequivocally identify the debtor. The applicant successfully appealed against this decision: on 16 November 2000 the Central District Court of Orenburg held that the Senior Bailiff had exceeded her authority when she closed the enforcement proceedings.
24. On 30 November 2000 the bailiff responsible for the applicant's file revoked her decision of 9 April 1999 commencing the enforcement since the writ of execution did not clearly identify the debtor and its address. The applicant successfully complained to the Central Court about this decision: on 1 March 2001 the court ordered the bailiff to proceed with the execution of the judgment.
25. On 14 December 2000 the same court ruled that the stay of execution pending the supervisory review was unlawful and ordered the bailiff to continue the execution.
26. On 21 March 2001 the bailiff applied to the Leninskiy District Court for clarification as to how the judgment should be enforced, what legislation should be applied and which accounts of which branch of the Treasury Department should be charged. The court did not satisfy the bailiff's request as the writ of execution was sufficiently clear, and the court had no competence to advise the bailiff on possible modes of enforcement.
27. On 4 April 2001 the acting Public Prosecutor of the Orenburg Region lodged an application for supervisory review of the judgment of 22 July 1998 on the ground that the compensation should have been awarded against the Regional Authority and not against the Treasury Department. On 16 April 2001 the Presidium of the Orenburg Regional Court granted the prosecutor's application and quashed the judgments of 22 July 1998 and 8 December 1998. The case was remitted for a new examination.
28. On 15 May 2001 the Central District Court of Orenburg refused the Treasury Department's application to lift the attachment of its accounts. Instead, the court ordered that the execution should cease since the judgment debt had been quashed on 16 April 2001.
29. On 29 June 2001 the Lenisnkiy District Court gave a new judgment in the case. The applicant was awarded RUR 2,869.50 in compensation for the property and RUR 1,000 in legal costs. The compensation was to be paid by the financial department of the Orsk City Council. The claims for repossession and non-pecuniary damages were dismissed. The applicant's appeal against the judgment was disallowed by the Orenburg Regional Court on 14 August 2001.
30. On 18 December 2001 the bailiff closed the enforcement proceedings because the award had been credited to the applicant's bank account on 30 November 2001. The applicant challenged this decision in court claiming that he had not received the money. On 15 February 2002 the Leninskiy District Court established that there was insufficient evidence that the award had indeed been paid to the applicant and annulled the bailiff's decision to close the enforcement.
31. By letter of 31 October 2002 the Government informed the Court that the award of 29 June 2001 had been paid to the applicant on 30 November 2001.
32. By letter of 18 October 2002 the applicant informed the Court that he had not received the money awarded.
33. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff's order on the institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
34. Under section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83417
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ZAICHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1956 and lives in Dnipropetrovsk.
5. On 22 September 1998 criminal proceedings, instituted against the applicant on suspicion of tax evasion, were discontinued on exonerative grounds.
6. In December 1998 the applicant instituted proceedings in the Krasnogvardiysky District Court of Dnipropetrovsk (“the Krasnogvardiysky Court,” Красногвардійський районний суд м. Дніпропетровська), seeking compensation from the State budget for moral damage inflicted by the allegedly unlawful actions of the investigating authorities.
7. On 10 September 1999 the Krasnogvardiysky Court rejected the applicant's claims as unsubstantiated. On 1 November 1999 the Dnipropetrovsk Regional Court (“the Regional Court,” Дніпропетровський обласний суд) quashed this judgment and remitted the case for a fresh consideration.
8. On 2 February 2000 the Krasnogvardiysky Court awarded the applicant 3,000 hryvnyas (UAH) in moral damage without specifying the debtor. This judgment was upheld by the Regional Court on 21 February 2000 and became final. The applicant unsuccessfully attempted to obtain a supervisory review of the two rulings, seeking a higher amount of compensation.
9. On 16 March 2000 the Dnipropetrovsk Regional Treasury (Управління державного казначейства у Дніпропетровській області) transferred the judgment of 2 February 2000 to the State Treasury (Державне казначейство України) for enforcement. The State Treasury did not pay the debt and requested the Prosecutors' Office to lodge a supervisory review request (a protest) against the court rulings of 2 and 21 February 2000. On 14 September 2000 the Deputy Regional Prosecutor (Заступник прокурора Дніпропетровської області) lodged a protest with the Regional Court alleging that no compensation should have been awarded.
10. On 18 October 2000 the Presidium of the Regional Court dismissed the protest and upheld the previous two rulings. The Deputy Prosecutor General lodged a protest with the Supreme Court against all three court rulings.
11. In its final decision of 16 May 2001, the Supreme Court upheld the rulings at issue and amended the judgment of 2 February 2000 to specify that the debt was to be paid by the Zhovtnevy District Treasury of Dnipropetrovsk (“the Zhovtnevy Treasury,” Відділення Державного казначейства у Жовтневому районі м. Дніпропетровська). The applicant unsuccessfully attempted to lodge a cassation appeal against this final decision, seeking a higher amount of compensation.
12. On 12 July 2001 the Zhovtnevy District Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Жовтневого районного управління юстиції в м. Дніпропетровську) initiated the enforcement proceedings in respect of the amended judgment of 2 February 2000.
13. On 5 October 2001 the Bailiffs imposed a fine on Ms G., the Head of the Zhovtnevy Treasury, for her failure to ensure the enforcement of the judgment in due time. Ms G. appealed to the Zhovtnevy District Court of Dnipropetrovsk (“the Zhovtnevy Court,” Жовтневий районний суд м. Дніпропетровська).
14. On 11 December 2001 the Zhovtnevy Court allowed Ms G.'s appeal, having found that the judgment had not been enforced on account of a failure in the statutory mechanism and the lack of budgetary allocations. The applicant's appeal against this judgment was returned as “not lodged” in view of his failure to rectify its procedural shortcomings.
15. On 1 April 2002 the Bailiffs discontinued the enforcement proceedings on the ground that the collection of the debt was not possible. The applicant unsuccessfully attempted to institute criminal investigation into the non-enforcement.
16. The judgment of 2 February 2000 remains unenforced to the present day.
17. The relevant domestic law is summarised in the judgment of Volosyuk v. Ukraine (no. 60712/00, §§ 20-24, 29 June 2006).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95039
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PREZEC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1972.
5. Following a criminal conviction for murder, the applicant was sent to Lepoglava State Prison on 15 December 1997 to serve a twelve-year prison sentence. Since that date he has served his sentence in various prisons in Croatia.
6. On 3 December 2003, while the applicant was serving his prison term in Pula Prison, the Pula Municipal State Attorney's Office indicted him on a charge of threatening a prison employee on 21 May 2003. Criminal proceedings were instituted against the applicant before the Pula Municipal Court (Općinski sud u Puli). A hearing scheduled for 18 December 2003 was adjourned because the applicant had not been duly summoned. A further hearing scheduled for 2 March 2004 was also adjourned because at that time the applicant was undergoing treatment in Zagreb Prison Hospital. At a hearing held on 25 May 2004 the applicant stated that he had neither understood the content of the indictment against him nor the warning given to him by the presiding judge. The court then ordered a psychiatric examination of the applicant and adjourned the hearing.
7. On 28 June 2004 the applicant lodged a written request for a legal aid counsel. The request was received at the Pula Municipal Court on 30 June 2004 and enclosed in the case file on 15 July 2004. No written decision was made in respect of his request at that stage of the proceedings.
8. The applicant was examined by a psychiatrist in Vrapče Psychiatric Hospital (Psihijatrijska bolnica Vrapče) from 23 to 29 June 2004. The report, drawn up on 6 July 2004, shows that the applicant was treated in the Psychiatric Ward of the Zagreb Prison Hospital during the following periods:
- 12 to 17 February 1999 for depression;
- 26 February to 15 March 1999 for a suicide attempt;
- 1 to 6 April 1999 for allegedly falling out of bed and hurting his head;
- 3 December 1999 to 10 January 2000 for depression and anxiety;
- 17 February to 6 March 2000 for self-injury;
- 21 December 2000 to 31 January 2001 for a suicide threat;
- 12 to 24 April 2001 for personality disorder;
- 6 to 25 November 2002 for personality and behavioural disorder;
- 17 December until 2 January 2003 for a suicide attempt;
- 3 to 22 April 2003;
- 28 July to 20 August 2003 for a suicide attempt;
- 21 to 22 August 2003 for refusal to drink water;
- 22 August to 22 September 2003 for a suicide attempt;
- 24 September to 27 November 2003 for a suicide attempt;
- 20 February to 18 March 2004 for a suicide attempt;
- 8 to 14 April 2004 for swallowing batteries;
The conclusions of the report read as follows:
“1. Zlatko Prežec is a person suffering from serious and permanent personality disorder with a prevalence of paranoia [paranoid personality disorder], schizophrenic disorder and a pronounced narcissistic pathology, as well as a strong tendency towards destructive and self-destructive behaviour.
2. The patient's mental disorders do not fall into the category of a temporary or permanent mental illness, insufficient mental development or a mental illness with physical causes.
3. During psychiatric examination no elements indicating alcohol dependency or dependency on any psychoactive substance were found.
4. Bearing in mind the gravity and nature of the patient's personality disorders and their close link with the offences with which he has been charged, we consider that his ability to understand and control his own actions was diminished when the offences in question were committed.
5. Bearing in mind the serious and genuine risk [that the patient] might commit further criminal offences, we recommend that he undergo compulsory psychiatric treatment.
6. The patient maintains the capacity to participate in the proceedings against him for the time being.”
On 12 July 2004 the report was submitted to the Pula Municipal Court.
9. At a hearing held on 13 July 2004 the applicant stated that he was going to defend himself in person although he was of the opinion that his constitutional rights were thus violated. At the same time he also stated that he did not understand anything. The relevant part of the written transcript of the hearing reads:
“The defendant is informed, under Article 5 of the Code of Criminal Procedure, that he has the right to defend himself in person or with assistance of a defence counsel.
The defendant states: 'I do not understand anything.'
The judge again informs the defendant of his rights under Article 5 of the Code of Criminal Procedure.
The defendant states:
'I will defend myself in person although I think that my constitutional rights have thus been violated.'
The defendant then states that he has not understood anything.”
During the trial the applicant remained silent. On 13 July 2004 the Pula Municipal Court (Općinski sud u Puli) found the applicant guilty as charged and sentenced him to five months' imprisonment. In addition, it ordered the applicant to undergo compulsory psychiatric treatment because he had been diagnosed as suffering from a mental disorder. With regard to the applicant's mental state, the judgment stated:
“... the defendant ... is a person suffering from serious and permanent [chronic] personality disorders with a prevalence of paranoia [paranoid personality disorder], schizophrenic disorder and a pronounced narcissistic pathology, as well as a strong tendency towards destructive and self-destructive behaviour.”
10. On 24 August 2004 the applicant lodged an appeal against the first-instance judgment alleging, inter alia, that his defence rights had been violated in that his request to have a defence counsel appointed in the proceedings before the first-instance court had been ignored. The case file was sent to the Pula County Court (Županijski sud u Puli) sitting as an appeal court. On 3 August 2005 the appeal court returned the case file to the Pula Municipal Court because it had failed to decide upon the applicant's further, written request of 28 June 2004 to have a defence counsel appointed to him.
11. On 6 September 2005 the Pula Municipal Court heard the applicant in connection with his request for a legal aid lawyer. In a decision of 22 September 2005 the Pula Municipal Court appointed a lawyer practising in Pula as the applicant's defence counsel. In the operative part of the decision a lawyer T.S. was appointed, while in the reasoning another lawyer, T.B., is named as the officially appointed defence counsel. The relevant part of this decision reads as follows:
“This court has ... established that the defendant's financial situation ... does not allow him to engage the services of a defence counsel and that reasons of fairness require that a defence counsel be officially assigned to him.”
12. On 30 September 2005 the appointed counsel, T.S., also lodged an appeal against the first-instance judgment.
13. On 20 April 2006 the Pula County Court dismissed both appeals. As regards the lack of legal representation for the applicant during the trial before the first-instance court, it held:
“The defendant ... maintains that the first-instance court took no heed of the fact that he suffers from mental illness and that therefore a defence counsel should have been assigned to him ...
This appeal court finds, however, that no procedural error was made which could have affected the defendant's defence rights. The record of the hearing held on 25 May 2004 shows that the defendant stated that he did not feel capable of defending himself, after which the first-instance court adjourned the hearing and ordered a psychiatric examination of the defendant ... The report showed that the nature and intensity of the defendant's mental illness did not put in question his ability to defend himself. The [first-instance court] held a hearing on 13 July 2004 at which the defendant, although expressly advised in accordance with Article 5 of the Code of Criminal Procedure that he could defend himself in person or with the assistance of a defence counsel, stated 'that he is going to defend himself in person although his constitutional rights are thus infringed'. It follows that the defendant, who had been found capable of defending himself in person, that is to say that he understood his role in the trial and the information about his rights, expressly stated that he was going to defend himself in person.”
14. In his subsequent constitutional complaint of 26 June 2006 the applicant complained that he had no means to pay for legal assistance since he had been serving a prison term since 1997. Furthermore, owing to his mental state, the interests of justice required that he be granted such assistance. He alleged that he had asked the presiding judge on several occasions, both orally and in writing, to be granted legal assistance. However, she had completely ignored his requests until the appeal court remitted the case file to her in order to decide on his request for legal assistance. A decision of the President of the Pula Municipal Court of 22 September 2005 appointing two defence counsel had been served on the applicant in prison but it did not contain the address or telephone number of either of the appointed counsel. Neither of them had contacted the applicant.
15. On 13 November 2008 the Constitutional Court dismissed the applicant's complaint.
16. The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:
“(1) A defendant has the right to defend himself in person or with the assistance of a defence counsel of his own choosing from among the members of the Bar. Where prescribed by this Code, and in order to ensure [that the rights of] defence [are respected], a defence counsel shall be assigned to a defendant who has not appointed a defence counsel of his own choice.
(2) Under the conditions prescribed by this Code, a legal aid lawyer shall be appointed, on the request of the defendant, to a defendant who has no means to pay for legal assistance.
(3) A court or other State body participating in the criminal proceedings shall inform the defendant of his right to a defence counsel when he or she is first questioned.
(4) The defendant shall be afforded adequate time and facilities for the preparation of his or her defence.”
17. Pursuant to Article 430 of the Code of Criminal Procedure, where the defendant requests an amendment of a final judgment following a finding by the European Court of Human Rights of a violation of, inter alia, the right to a fair trial, the rules governing a retrial shall apply.
18. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or about suspicion or accusation of his or her having committed a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (hereinafter: constitutional rights)...
2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are allowed, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual's rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
19. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05 and 16/07), which entered into force on 29 December 2005, reads as follows:
“(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court.
(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Petty Offences Court of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.
(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent.”
“(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.
(2) The compensation shall be paid out of the State budget within three months from the date the party's request for payment is lodged.
(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court's decision but one may lodge a constitutional complaint.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-107572
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TERLETSKAYA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
TEXT: The applicant, Ms Olga Sergeyevna Terletskaya, is a Ukrainian national who was born in 1965 and lives in Nova Kakhovka. The Ukrainian Government (“the Government”) were represented by their former Agent, Mr Y. Zaytsev, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as an assistant in a shop belonging to Mr. F.
On 2 October 2003 a tax police squad visited Mr F.’s shop in order to carry out an unscheduled inspection due to Mr F.’s failure to submit tax returns.
The inspection was not conducted, as Mr F., his relatives and his employees, including the applicant, prevented the officers from accessing the store’s tax records. It led to a fracas.
As was later established by the investigation, at some point Mr F. switched off the light and the applicant screamed that she had been punched in her face by tax officer K. This escalated the scuffle and K. tried to leave the scene in his car. Mr F. and the applicant tried to prevent K. from leaving. Mr F. jumped on the hood of the car, then broke a side window and tried to pull officer K. out of the car, while the applicant blocked the rear of the car and jumped on it when the car tried to move. Tax officer L. tried to pull the applicant away from the car.
Later the same day, the applicant lodged a complaint with the Nova Kakhovka police department against officer K. for punching her in her face.
Again on the same day, the members of the tax police squad that had conducted the inspection gave statements to the police.
At 10.20 p.m. the applicant was examined by a doctor, who found a bruise on her right arm.
On 3 October 2003 the applicant lodged a complaint against tax police officers K. and L. with the Nova Kakhovka Local State Tax Administration. She complained that officer K. had beaten her and that officer L. had “applied brutal physical force” to her.
On the same date the applicant was questioned and underwent a medical examination. The examination revealed the following injuries on her: one bruise of 2 x 1 cm on the inner side of the right forearm; one bruise of 6 x 4 cm just above the left buttock; and one bruise of 6 x 4 cm on the outer surface of the right thigh.
Again on the same date, the tax inspectorate transferred the applicant’s complaint to the Nova Kakhovka Town Prosecutor’s Office (“the NKPO”), which started an investigation.
On 6 October 2003 the Kherson Regional State Tax Administration conducted an internal query and concluded that the tax police had acted lawfully in conducting the tax inspection of Mr F.’s shop.
On 15 October 2003 the applicant underwent a forensic medical examination ordered by the investigator. The forensic expert concluded that the applicant’s injuries certified by the medical examination of 3 October 2003 could have been caused by blunt hard objects, including by jumping on the car and grasping its metal parts and by having been pulled off the car by officer L.
On several occasions the investigation questioned the individuals involved in the scuffle and some by-passers who had witnessed the beginning of the scuffle.
On 27 October 2003 the NKPO refused to institute criminal proceedings against officers K. and L. The investigation established that on 2 October 2003 a squad of six officers had arrived at Mr F’s shop in order to conduct a tax inspection. Mr F. had refused to give them access to financial documentation. The squad had called their supervisor, Mr K., who had arrived at the shop with a lawyer to draft a report recording that it had been impossible to conduct the inspection. At that time, the applicant had arrived at the shop to start her shift as an assistant. When the members of the squad had tried to read out the document, Mr F. had switched off the light, claiming that the shop’s opening hours were over, and had started pushing the squad’s officers out of the shop. When they were out in front of the shop, Mr F. had temporarily switched off the light in front of the shop and the applicant had then started shouting that Mr K. had punched her in her face. Following that, Mr F. and his relatives and other shop assistants that had been present had blocked K.’s car, preventing it from leaving. The applicant had been jumping on the back of the car. Meanwhile, Mr F. had jumped on the hood of the car and, kicking the wind shield, had broken it. Mr F. had then broken one of the car’s side windows and, trying to pull Mr K. out of the car, had cut his hand on the broken glass. At the same time, officer L. had tried to pull the applicant away from the car but she had resisted.
The investigator further noted the results of the forensic medical examination of the applicant and its conclusions that the applicant could have caused the minor bodily harm established herself by jumping on the car or that her injuries could have been caused by officer L. when he had tried to pull her away from it. The investigator also noted that the applicant had not had any injuries on her face.
As it could not be established that the bodily harm ascertained had been caused to the applicant by the tax police officers, the investigator refused to institute criminal proceedings against officers K. and L. for a lack of corpus delicti.
On 28 November 2003 the Kherson Regional Prosecutor’s Office quashed the decision of 27 October 2003 and instructed the NKPO to conduct additional investigation on the grounds that officers K. and L. had not been questioned and that the decision of 27 October 2003 had mistakenly been taken within the criminal proceedings against Mr F. and not in connection with the preliminary examination of the applicant’s complaint.
On 4 December 2003 officers K. and L. were questioned again.
On 5 December 2003 the NKPO refused to institute criminal proceedings.
On 8 December 2003 the applicant lodged a private prosecution with the Nova Kakhovka Town Court. On 15 December 2003 the court left the complaint without consideration for failure to comply with procedural formalities.
On 30 April 2004 the Nova Kakhovka Town Court quashed the NKPO’s decision of 5 December 2003 and returned the case to the NKPO for further investigation. It noted that the decision of 5 December 2003 had mistakenly been taken within the criminal proceedings against Mr F. and not in connection with the preliminary examination of the applicant’s complaint and that Mr F. and Ms R. had not been questioned as witnesses.
In June 2004 Mr F. and Ms R. were questioned.
On 7 June 2004 the NKPO refused to institute criminal proceedings. It was noted that there was no objective proof that officer K. had punched the applicant in her face at all, that the applicant’s other injuries could have been caused by her jumping on the car and that it could not be established beyond reasonable doubt that officer L. had caused any of the minor injuries found on the applicant.
On 27 July 2004 the Nova Kakhovka Town Court rejected the applicant’s subsequent appeal against the decision of 7 June 2004.
On 16 November 2004 the Kherson Regional Court of Appeal upheld the decision of the first-instance court.
On 19 April 2005 the Supreme Court of Ukraine upheld the decisions of the lower courts.
The applicant lodged two administrative complaints against the Prosecutor General’s Office for its alleged failure to act on her complaints.
On 17 February and 31 August 2005 the Pechersky Court found that the Prosecutor General’s Office had failed to consider criminal complaints which the applicant had brought against the Kherson Regional Prosecutor. The court ordered the Prosecutor General’s Office to consider the applicant’s complaints and to take reasoned decisions on them.
The applicant maintained that the court decisions of 17 February and 31 August 2005 have remained unenforced.


ITEMID: 001-103161
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LESIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8;No violation of Art. 5-3
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1964 and lives in Zabrze.
6. On 27 April 2006 the applicant was remanded in custody by an order of the Katowice District Court on suspicion of having committed money laundering while acting in an organised criminal gang.
7. The applicant appealed. On 31 May 2006 the Katowice Regional Court upheld the decision to remand her in custody.
8. Shortly after her arrival in Lubliniec Detention Centre, the applicant was examined by the prison doctor. She informed him that she did not suffer from any illnesses and that she was not taking any special medication.
9. On 2 June 2006 the applicant complained to the prison doctor of pain in the chest area. The doctor diagnosed vegetative neurosis and prescribed the appropriate medication.
10. On 24 July 2006 the Katowice District Court extended the applicant's detention, referring to the need to conduct further investigations. This decision was upheld by the Regional Court on 30 August 2006.
11. On 28 July 2006 the applicant again complained of chest pain and was placed under observation. On 1, 13 and 20 September 2006 she reported the same symptoms and was prescribed medication.
12. On 11 September 2006 the District Court again extended the applicant's detention. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant. It also relied on the risk that the applicant might tamper with evidence, given the nature of the charges against her and the fact that she had acted in concert with the co-accused. This decision was upheld by the Katowice Regional Court on 11 October 2006.
13. The applicant submits that in September 2006 she discovered a lump in her breast during a self-examination. She informed the prison doctor on 27 October 2006. The prison doctor confirmed that there was a lump in the applicant's left breast and sent her to the Breast Disease Clinic in Zabrze. During the consultation, which took place on 12 December 2006, a doctor confirmed the existence of the lump and ordered that she undergo a mammography.
14. The applicant's detention was subsequently extended on 7 December 2006. The District Court referred to the reasons previously given.
15. The mammography was performed on 11 January 2007.
16. On 16 January 2007 the Katowice Regional Prosecutor refused the applicant's motion for a change of the preventive measure. He considered that according to a cardiologist's opinion the applicant could be kept in detention pending trial. He also stressed that an expert oncologist had been asked to prepare an opinion on the applicant's state of health.
17. The applicant subsequently again asked for a change of the preventive measure. On 7 February 2007 the prosecutor considered that since he had not yet received the expert oncologist's opinion he could not decide on the applicant's release. However, he stressed that, according to the information provided by the expert, the applicant could, if necessary, be operated on in the surgical ward of the prison hospital.
18. The expert oncologist submitted his opinion on 16 February 2007. He stated that the lump should be removed and sent for a histopathological examination. He confirmed that the operation could be performed in the surgical ward of the prison hospital. Referring to the opinion, on 27 February 2007 the prosecutor dismissed the applicant's motion for a change of the preventive measure.
19. On 1 March 2007 the District Court extended the applicant's detention, referring to the reasons previously given.
20. On 15 March 2007 the applicant underwent surgery in the prison hospital. She had the lump removed from her breast.
21. The applicant's detention was subsequently extended on 25 April 2007, 25 July 2007 and 3 August 2007. The applicant's appeals against those decisions were dismissed.
22. Meanwhile, on 9 July 2007 the prosecutor considered that there was no reason for the applicant to be released and that she could be treated in the prison hospital.
23. On 26 July 2007 an act of indictment was filed with the Katowice Regional Court. The applicant was charged with money laundering committed while acting in an organised criminal gang. The indictment concerned fifteen co-accused.
24. On 23 November 2007 the Katowice Regional Court ordered the applicant's release on bail (20,000 Polish zlotys). The court held that keeping the applicant in custody was no longer necessary to ensure the proper course of the proceedings.
25. It would appear that the criminal proceedings against the applicant are pending.
26. At the time of lodging her application with the Court the applicant had been detained in the course of criminal proceedings against her.
27. On 3 May 2007 the Registry of the Court received the applicant's first letter, an application form dated 20 April 2007. The envelope bears a handwritten note reading “censored on 25 April 2007” (ocenzurowano ....) and an illegible signature. It also bears a stamp reading “Lubliniec prison” (Zakład Karny w Lublińcu).
28. On 30 August 2006 the Katowice Regional Prosecutor informed the applicant that her family could visit her every three weeks.
29. On 19 March 2007 the applicant was again informed by the Katowice Regional Prosecutor that her children could visit her every three weeks.
30. During the investigation, and subsequently once the trial had started, the applicant's children visited the applicant on average every three weeks.
31. The relevant domestic law and practice concerning the imposition of pre-trial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out 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 May 2006).
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3