ITEMID: 001-66792
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF NIKOLOVA v. BULGARIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1943 and lives in Plovdiv.
9. The applicant used to work as a cashier and accountant in a stateowned company.
10. An audit of the company at the beginning of 1995 revealed a cash deficit of 1,290,059 old Bulgarian levs.
11. In February 1995 the applicant was given a copy of the audit’s final act, which contained the auditors’ opinion that, inter alia, during the period 199194 she had deliberately made false entries in the accounting books and had thus misappropriated funds.
12. On 15 March 1995 the Plovdiv Regional Prosecutor’s Office opened a preliminary investigation in respect of the applicant and three other employees of the company. It seems that the applicant became aware of the investigation soon after its opening. The case was sent for investigation to the Plovdiv Regional Investigation Service. The prosecutor in charge of the case indicated a number of specific facts which the investigator had to establish and ordered that the investigation be completed within sixty days.
13. On 10 August 1995 the Regional Prosecutor’s Office, noting that no investigative steps had been taken until that moment despite its instructions of 15 March 1995, directed the investigator immediately to start working on the case and finalise the investigation within sixty days.
14. In the following months the applicant was questioned several times. The investigation authorities also questioned a number of witnesses and gathered documents and other evidence.
15. On 24 October 1995 the applicant was charged under Article 203 § 1 in conjunction with Articles 202 § 1 (1) and 201 of the Criminal Code (“CC”) with particularly aggravated misappropriation of funds in particularly large amounts, the commission of which had been facilitated by other offences (making of official documents containing false information and abuse of office) carrying a lesser penalty.
16. On 6 November 1995 the Regional Investigation Service asked the Regional Prosecutor’s Office for a sixtyday extension of the timelimit for the completion of the investigation. On 14 November 1995 the Regional Prosecutor’s Office granted the extension.
17. On 11 January 1996 the Regional Investigation Service asked the Chief Prosecutor’s Office to extend the time-limit for the completion of the investigation with a further sixty days. It stated that all witnesses had already been questioned and a vast amount of accounting and other documents relating to the applicant’s criminal activity spanning over three years had been seized. A graphological expert report had been drawn up in respect of some of these documents. An accounting expert report was in the works, but would not be ready within the time-limit previously set for the completion of the investigation, because it required the processing of a large number of accounting documents. On 18 January 1996 the Chief Prosecutor’s Office acceded to this request.
18. On 25 June 1996 the investigator reformulated the charges against the applicant and notified her accordingly.
19. On 2 July 1996 the investigator allowed the applicant and her counsel to acquaint themselves with the case file.
20. A few days later the investigator concluded his work on the case and sent the file to the Regional Prosecutor’s Office with the proposal to commit the applicant for trial.
21. On 27 November 1997 the Regional Prosecutor’s Office found that the evidence thus far collected indicated that the misappropriation of funds allegedly committed by the applicant and by one of her co-accused was not particularly aggravated. Moreover, in the meantime she had restored part of the money. Accordingly, it decided to prosecute the applicant for nonaggravated misappropriation of funds (Article 202 of the CC). As this offence fell within the jurisdiction of the District Court, it sent the file to the District Prosecutor’s Office.
22. On 30 March 1998 the District Prosecutor’s Office discontinued the criminal proceedings against two of the co-accused, as it found that the minor nature of the offences allegedly committed by them allowed an administrative prosecution. It decided to pursue the case against the applicant and the fourth co-accused.
23. On 1 January 2000 amendments to the Code of Criminal Procedure (“CCP”) entered into force, providing, inter alia, that criminal proceedings could be discontinued before the end of the trial with a plea agreement between the prosecution and the defence.
24. On 7 January 2000 the District Prosecutor’s Office indicted the applicant.
25. On 25 January 2000 the prosecution and the applicant entered into a plea agreement whereby the applicant pleaded guilty and was sentenced to three years’ imprisonment, suspended for five years, and occupational disbarment for a period of five years.
26. On 2 February 2000 the plea agreement was approved by the District Court and the proceedings were discontinued.
27. On 24 October 1995 the applicant was arrested and remanded in custody. As grounds for her detention the investigator cited the seriousness of the offence charged against her.
28. On 6 November 1995 the applicant appealed against her detention to the Regional Prosecutor’s Office. She stated that she had not attempted to abscond or obstruct the investigation during the six months since she had become aware of the criminal charges against her, that she was no longer working as a cashier or accountant and could not, therefore, commit other offences, and that she had undergone gynaecological surgery in 1994 and had still not recovered completely.
29. On 9 November 1995 the Regional Prosecutor’s Office confirmed the decision to detain the applicant. It found that she had been charged with a serious offence punishable by more than ten years’ imprisonment and that “therefore, the [detention] [was] lawful: it [was] based on the imperative provision of Article 152 § 1 of the CCP”. It further stated that the question whether or not Article 152 § 2 of the CCP should be applied was to be assessed by the investigator and by the supervising prosecutor. In the applicant’s case the investigator and the supervising prosecutor had not applied Article 152 § 2 of the CCP “in view of the current stage of the proceedings”. It followed that the applicant’s detention was lawful. By a decision of 15 December 1995 the Chief Prosecutor’s Office rejected the applicant’s ensuing appeal against this decision.
30. A further appeal against the applicant’s detention was rejected by the Chief Prosecutor’s Office on 12 January 1996.
31. On 18 January 1996 the Chief Prosecutor’s Office confirmed the applicant’s detention of its own motion.
32. In the meantime, on 14 November 1995, the applicant appealed against her detention to the Regional Court. In his written submissions to the Court the applicant’s counsel stated, in particular, that the decision to detain the applicant had been based solely on the gravity of the charges against her, whereas other important factors had not been taken into account. For instance, the applicant had a permanent address where she lived with her husband and two daughters. Also, she had known about the criminal charges against her for more than six months prior to her arrest but had made no attempt to abscond or obstruct the investigation. Furthermore, the evidence against the applicant was weak, it having been established that six other persons had access to keys to the cashier’s office. The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge. However, no proof was found that the applicant herself had made false entries in the accounting books. The applicant’s counsel also referred to her medical condition and enclosed medical certificates.
33. On 11 December 1995 the court rejected the appeal. It held, inter alia:
“[The charges against the applicant] concern a serious offence within the meaning of Article 93 § 7 of the CC, that is, an offence under Article 203 of the CC, punishable by ten or more years’ imprisonment. In this respect there exists the requirement, under Article 152 § 1 of the CCP, that detention be imposed.
... [The medical certificates submitted by the applicant] reflect her state of health during a past period of time. No information concerning her present state of health has been submitted. It follows that at present there exist no circumstances requiring the modification of the measure ‘pre-trial detention’ imposed on the [applicant]. Therefore the appeal is ill-founded and must be dismissed.”
34. On 11 January 1996 the applicant’s counsel requested the investigator in charge of the case to order a medical examination of the applicant with a view to establishing whether the conditions of detention were dangerous for her health. On 19 January 1996 upon the investigator’s order the applicant was examined by three medical experts. In a report of the same date the experts found that the problems related to the surgery which the applicant had undergone more than a year ago (in 1994) did not affect her condition and that she could remain in custody.
35. On 5 February 1996 the applicant was urgently transferred to a hospital due to pain in her gall bladder. She underwent surgery. On the same day her counsel submitted to the Regional Prosecutor’s Office a request for her release in view of her poor health. In addition, he argued that there was no risk of the applicant absconding, obstructing the investigation or committing an offence, because she had become aware of the charges against her six months prior to her arrest but had not attempted to commit any of these acts.
36. On 6 February 1996 the Regional Prosecutor’s Office requested the Regional Investigation Service to comment on the request for the applicant’s release. In particular, the Service was requested to address the issue whether the applicant’s continuing detention was justified in view of the surgery she had undergone. On 13 February 1996 the Regional Prosecutor’s Office ordered the Regional Investigation Service to request an expert medical opinion on the above issue. On 15 February 1996 a group of medical experts was appointed to examine the applicant. The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention.
37. Following this opinion, on 19 February 1996 the Regional Prosecutor’s Office decided to discontinue the applicant’s pre-trial detention in view of her ill health, which was found incompatible with the conditions in detention. It further found that the applicant’s state of health made it impossible for her to flee, obstruct the investigation or commit an offence. Also, the investigation had almost been completed.
38. The same day the applicant was released from custody and placed under house arrest.
39. On an unspecified later date the applicant submitted to the Regional Prosecutor’s Office a request for release. The request was rejected on 14 March 1996. The Regional Prosecutor’s Office held that the applicant’s pre-trial detention had been replaced by house arrest because it had been found that the applicant’s health was incompatible with the conditions in detention and, moreover, the risk of her absconding or re-offending was objectively excluded in view of her illness. Unlike pre-trial detention, house arrest was not incompatible with her state of health, because there she could undergo medical examinations and treatment. The applicant had not requested permission to leave her house for specified periods of time to undergo treatment. Thus, there was no need for her to be released.
40. Later in March 1996 the applicant appealed against her house arrest to the Chief Prosecutor’s Office. She argued that there was no risk of her absconding or re-offending. She also referred to her poor health. By a decision of 5 April 1996 the Chief Prosecutor’s Office rejected the appeal, apparently without giving any specific reasons.
41. On 25 June 1996 the investigator confirmed the applicant’s house arrest of his own motion, without giving reasons.
42. On 27 November 1997 the Regional Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons.
43. On 30 March 1998 the District Prosecutor’s Office confirmed the applicant’s house arrest of its own motion, without giving reasons.
44. On 7 April 1998 the applicant’s counsel appealed to the Regional Prosecutor’s Office against the District Prosecutor’s Office’s decision to confirm the house arrest. He stated that it had lasted for over two years and that there was no indication that the applicant would abscond or re-offend. Moreover, all relevant evidence had already been gathered.
45. On 16 April 1998, apparently before transmitting the appeal to the Regional Prosecutor’s Office, the District Prosecutor’s Office reviewed the matter and decided to grant bail. It stated that the investigation authorities had sent the case to the prosecution twice and it had been returned for further clarifications each time. As of that time the file was at the investigation and there was no indication that it would be received at the District Prosecutor’s Office any time soon. The further continuation of the house arrest would amount to mere repression, since all relevant evidence had already been gathered and there was no risk of the applicant obstructing the investigation. It also added that the requests for release submitted in early 1996 were apparently rejected because at that time the applicant’s deprivation of liberty had not lasted very long.
46. Article 203 § 1 of the CC, read in conjunction with Articles 202 § 1 (1) and 201, provides that particularly aggravated misappropriation of funds in particularly large amounts, the commission of which has been facilitated by another offence which carries a lesser penalty, is punishable by ten to thirty years’ imprisonment.
47. By Article 202 § 1 (1) of the CC, read in conjunction with Article 201, misappropriation of funds in not particularly aggravated cases is punishable by one to ten years’ imprisonment, if its commission has been facilitated by another offence which carries a lesser penalty.
48. The legal grounds for detention pending trial are set out in Article 152 of the CCP, the relevant part of which, as worded at the material time, provided as follows:
“1. Pre-trial detention trial shall be ordered [in cases where the charges concern] a serious intentional crime.
2. In the cases falling under paragraph 1 [pre-trial detention] may be dispensed with if there is no risk of the accused absconding, obstructing the investigation or committing a further crime.
...”
49. A “serious” crime is defined by Article 93 § 7 of the CC as one punishable by more than five years’ imprisonment.
50. The Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments to the CCP in force since 1 January 2000) was that Article 152 § 1 required that a person charged with a serious intentional offence be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or re-offending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly, or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).
51. Under Article 146 of the CCP, a measure to secure appearance before the competent authority has to be imposed in respect of every person accused of having committed a publicly prosecuted offence. Apart from pretrial detention, one such measure is house arrest.
52. Article 147 of the CCP, as in force at the relevant time, provided that measures to secure appearance were intended to prevent the accused from absconding, re-offending, or thwarting the establishing of the truth. When imposing a particular measure, the competent authority had to have regard to the dangerousness of the alleged offence, the evidence against the accused, his or her health, family status, profession, age, etc. (Article 147 § 2).
53. Article 151 of the CCP, as in force at the material time, defined house arrest as follows:
“House arrest shall consist of a prohibition for the accused to leave his [or her] home without permission by the respective organs.”
54. In its interpretative decision no. 10/1992 (реш. № 10 от 27 юли 1992 г. по конституционно дело № 13 от 1992 г., обн., ДВ брой 63 от 4 август 1992 г.) the Constitutional Court held as follows:
“... [H]ouse arrest is also a form of detention and [constitutes] an interference with the inviolability [of the person].”
55. At the relevant time the CCP did not provide for judicial review of house arrest. Thus, the only possibility for a person put under house arrest was to apply to a prosecutor who could order his or her release. If the prosecutor refused to release the person under house arrest, he or she could appeal to a higher prosecutor (Articles 181 and 182 of the CCP).
56. The CCP was amended with effect from 1 January 2000 and at present provides, in the newly introduced paragraph 2 of its Article 151, for full initial and subsequent judicial control of house arrest.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-82839
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HADRABOVA v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants, Ms Dana Hadrabová, born in 1956, Ms Lenka Hadrabová, born in 1983, Ms Zdenka Křivánková, born in 1945, Mr Dušan Křivánek, born in 1949, Ms Lenka Horká, born in 1947, and Mr Miloš Horký, born in 1944, are Czech nationals and live in Omice and Brno respectively. They are represented before the Court by Mr J. Brož, a lawyer practising in Brno. Another applicant, Ms Hedvika Hadrabová, born in 1921, died on 21 August 2004. The second applicant became her legal successor. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 May 1990 the first, third, fourth, fifth, sixth and seventh applicants and two other persons lodged an action for damages with the Brno-venkov District Court (okresní soud) against Waterworks (Vodohospodářské stavby, s.p.), a State owned company, requesting the court to order the defendant to cease operating a stone quarry and to pay them damages.
On 13 March 2002 the District Court, following two successive inheritance proceedings, admitted the second applicant, as approved heir, to the proceedings. On 18 November 2002 the court decided that the fourth applicant was the legal successor of another original claimant who had meanwhile died.
On 5 August 2004 the District Court discontinued the proceedings. On 30 September 2004 the applicants appealed against this decision. It appears that the proceedings are still pending before the appellate court.


ITEMID: 001-105673
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KONDRATISHKO AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;No violation of Art. 6
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicants were born in 1973, 1967, 1973, 1974 and 1971 respectively and lived until their arrest and subsequent conviction in the town of Bryansk, Russian Federation, except for the fourth applicant, who lived in the Bryansk Region, Russian Federation.
6. Between March and November 1999 (on 3 March, 4 March, 11 March, 6 March and 15 November 1999 respectively) the applicants were arrested. They were detained in custody and charged with robbery.
7. In February and March 2000 the applicants were charged with further crimes which included, inter alia, aggravated theft, aggravated robbery, extortion, theft and illegal possession of firearms.
8. In May 2000 the criminal investigation was completed, and on 19 May 2000 the case was submitted to the Bryansk Regional Court for trial.
9. On 8 July 2000 the Bryansk Regional Court remitted the case for further investigation, considering that it was necessary to rectify the indictment.
10. Following further investigation and the amendment of the charges against the applicants, the case was resubmitted to the Bryansk Regional Court on 18 July 2000.
11. On 27 July 2000 the Bryansk Regional Court set the date for the start of the trial, which was due to begin on 8 August 2000.
12. Between 8 August and 22 November 2000 twenty-one hearings were held by the Bryansk Regional Court.
13. On 22 November 2000, following a request by the alleged victims, the case was once again remitted for further investigation.
14. Between 17 January and 30 March 2001 the case was with the Bryansk Regional Prosecutor’s Office.
15. On 30 March 2001 the case was resubmitted to the Bryansk Regional Court for examination on the merits.
16. Between 30 March and 9 August 2001 the Bryansk Regional Court held thirty-one hearings.
17. On 9 August 2001 the Bryansk Regional Court convicted the applicants, along with six other co-defendants, of robbery, unlawful deprivation of liberty, banditry, possession of firearms and theft. It sentenced them to twenty-three years, twenty-two years, eighteen years, six and a half years and ten years’ imprisonment respectively. Although the trial was public, the applicants’ relatives were not allowed to attend it, except for the opening of the trial and the delivery of the court’s judgment.
18. The trial record was finalised in October 2001. The applicants submitted certain objections concerning the trial record, but they were dismissed.
19. All the applicants except for the fifth applicant appealed against their conviction.
20. On 8 January 2002 the criminal case was sent to the Supreme Court of Russia for examination on appeal.
21. On 11 July 2002 the Supreme Court of Russia upheld the applicants’ convictions with minor amendments. The terms of the applicants’ sentences remained unchanged. The appeal decision did not refer to the fifth applicant.
22. On 11 March 1999, the day of his arrest, the third applicant was at work at fire station no. 23 in Zhiryatino in the Bryansk Region. At about 9 a.m. unidentified persons wearing plain clothes handcuffed the third applicant and took him to the Bezhitskiy District police station in Bryansk. On the way to the police station the applicant was allegedly beaten up and threatened, in order to make him confess to a number of grave offences.
23. At the police station the applicant was taken to room no. 37, where the beatings allegedly continued.
24. Late at night on 12 March 1999 the applicant was taken to Bryansk regional remand prison IZ-32/1. However, the officer on duty refused to admit the applicant to the facility. The officer agreed to admit the applicant only following the latter’s examination by the local trauma unit and upon receipt of a certificate attesting to the fact that the applicant’s injuries were not life-threatening.
25. The applicant was taken to the local trauma unit. On the way to the trauma unit the applicant was allegedly threatened that he would be subjected to even worse ill-treatment, if not killed, unless he told the doctors that he had been injured by falling down a fire escape while at work. Having perceived the above-mentioned threats as real, in the light of his earlier abuse, the applicant told the doctors what the police officers had instructed him to say. The record of the applicant’s medical examination of 13 March 1999 by the trauma unit was not made available to the Court.
26. It is unclear where the applicant was held between 13 March and 19 March 1999. It is clear, however, that on 19 March 1999 the police officers brought him again to the Bryansk regional remand prison IZ-32/1. The record of the applicant’s medical examination, which was carried out upon his admission, reads, in particular, as follows:
“... The [applicant’s] general condition is satisfactory. On the back surface of his shoulder [there is] a yellow-brown bruise measuring 4 x 4 cm. On his left thigh [there is] a pale yellow bruise measuring 3 x 3 cm. [According to the applicant] he was beaten up on 11 March 1999 at the Bezhitskiy District police station. ...”
27. As emerges from the documents furnished by the Government, between 1999 and 2001 the applicant persistently complained to the prosecution authorities about his beatings at the Bezhitskiy District police station.
28. The Government were unable to provide copies of the decisions taken in response to the applicant’s complaints as all the documents pertaining to the respective inquiries were destroyed on 28 January 2008, following the expiry of the time-limit for their retention. The Government, however, relied on the decisions of 19 January and 28 February 2001 with the following conclusions.
29. On 19 January 2001 the Bezhitskiy District Prosecutor’s Office of Bryansk refused to institute criminal proceedings against the police officers in the absence of corpus delicti in their actions.
30. Following a further inquiry, on 28 February 2001 the Bryansk Regional Prosecutor’s Office terminated the criminal prosecution against the police officers in the absence of corpus delicti.
31. In the course of the criminal proceedings against the applicants which ended with their conviction on 9 August 2001, the third applicant also complained that he had been ill-treated during police custody and submitted that his confession had been made under duress.
32. According to the third applicant, at some point in the proceedings the court heard his co-workers, Mr Zh., the head of the fire station, and Mr L., commander of the fire guard, who submitted that no exercise had been performed at the fire station on 11 March 1999, so the applicant could not have fallen down a fire escape. They further confirmed having seen no traces of injuries on the applicant when he was changing into his uniform before starting his work at 8 a.m. that day. The testimony of the above persons does not appear in the text of the judgment by which the applicant was convicted. The Government did not contest that the above persons made the statements in question before the court.
33. The court held as follows:
“... Analysing [the applicant’s] statements about the alleged use on him of unlawful methods of interrogation (ill-treatment by [police officer] M.) and statements by [witness P.] questioned at the court hearing, the court notes a manifest discrepancy as to how and under which circumstances [the applicant and witness P.] met in autumn 2000 in SIZO (remand prison), as to what they discussed ... and what particular form of ill-treatment was applied to the [applicant]; [as well as] a discrepancy between [the applicant’s] own statements about the same circumstances made at this court hearing and at the court hearing of 26 September to 22 November 2000.
At the court [witness P.] submitted that he had known [the applicant] only by sight, [the applicant’s] last name was conveyed to him by the investigator who questioned him in the [correctional] facility.
It follows from the statements of [witness P.] read out in accordance with Article 286 of the RSFSR Code of Criminal Procedure, that he knew [the applicant] well before the [latter’s] arrest, since they lived close to each other, although they have never been friends.
[The applicant] submitted at the court hearing that he was never acquainted with [witness P.], and that he knew [the latter] only by sight.
At the same time it has been established at the court hearing that in SIZO [witness P.] met and talked to S. [one of the applicant’s co-defendants], which the latter confirmed. On this occasion, S. submitted that it was [witness P.] who told him about [the applicant’s] ill-treatment by the police officers, and that he told [the applicant] about [witness P.] when they were brought to court in autumn 2000, after which a request was made to summon [witness P.] and question him as an additional witness.
Taking into account the inconsistency of the statements made by [witness P.] and their manifest contradiction with [the applicant’s] statements, the court considers [these] statements as to [witness P.] having seen the police officer beating [the applicant] [to be] unreliable.
According to [the certificate issued by the local trauma unit (карточка травматика)], [the certificate of the medical department of the remand prison (справка МЧС СИЗО)] and the report of the forensic medical expert, bodily injuries in the form of bruises were found on [the applicant]. At the same time, it is impossible to establish the exact features of the object used to cause the injuries, [as well as] the time that the injuries mentioned in the [trauma unit certificate] of 13 March 1999 were inflicted. The time of the infliction of the injuries recorded on 19 March 1999 at the [medical department of the remand prison] corresponds to 1-1.5 weeks prior to [the applicant’s] examination at [the remand prison] (namely, 9 to 12 March 1999).
[Police officer M.] submitted that he had not been involved in [the investigation] of the crimes with which [the applicant] and [other defendants] had been charged, as at the material time he had been involved in investigating crimes committed by juvenile offenders.
These statements by [police officer M.] were corroborated by the head of the Bezhitskiy District police station.
[The applicant’s] statements [to the effect] that he had had a conflict with [police officer M.] prior to his arrest, during which [police officer M.] allegedly swore to get even with [the applicant] and the reference to submissions by [witness D.], have been checked during the pre-trial investigation and have not been confirmed.
...
[Investigator P.] denied using physical force on [the applicant] or other defendants, as well as making any threats to use physical force. The defendants were in due time informed of their procedural rights. The records of the interrogations were drawn up verbatim ...
The verification of the allegations of [the applicant] that he had been beaten by [police officer M.] and other police officers and the allegations of defendants S., B., [the applicant], Ald., Abr., K., G., S. and V. regarding unlawful actions of police officers aimed at obtaining their confessions allows the court to acknowledge that the conclusions [contained in the refusal to institute criminal proceedings against the police officers] are well-founded ...”
34. The third applicant challenged the above conclusions of the trial court in his appeal against conviction.
35. In its judgment of 11 July 2002 the Supreme Court held as follows:
“The alleged use on the convicts of unpermitted methods in the course of the pre-trial investigation ...has been checked by the court and has been validly declared to be unfounded as contradicting the factual circumstances and the evidence in this case, a conclusion with which the [appeal court] agrees”.
36. From 15 March 1999 to 24 November 2002 the first applicant was held in Bryansk regional remand prison IZ-32/1 (учреждение ИЗ-32/1 по Брянской области) in cells nos. 24, 72, 74, 76, 77, 92, 109, and 111.
37. As regards the cells’ measurements, the Government submitted as follows:
(a) cell no. 24 measures 20.3 square metres;
(b) cell no. 72 measures 48.5 square metres;
(c) cell no. 74 measures 48.1 square metres;
(d) cells no. 76 and 77 measure 46.1 square metres; and
(e) cells no. 92, 109 and 111 measure 7 square metres.
38. The Government were unable to indicate the exact number of inmates detained in the above cells together with the applicant, owing to the destruction of the relevant prison documentation for the period in question. They asserted, however, that in each cell the applicant was afforded no less than four square metres of personal space, in compliance with the requirements under domestic law (see paragraph 71 below). In each cell the applicant was provided with an individual bed and bedding.
39. The windows in the cells, measuring 1.35-1.4 m by 0.9-1.05 m, were not covered with sheet metal. The white-painted metal screens were removed in the course of 2003, following the instruction of the Prisons Directory of the Ministry of Justice of 26 November 2002.
40. Cells nos. 24, 72, 74, 76 and 77 were each lit with two 80-watt light bulbs, which conformed to the established legal norms. Cells nos. 92, 109 and 111 were lit with one 80-watt light bulb each. At night time the cells were lit with 60-watt security lights.
41. All cells had natural ventilation and were equipped with extractor fans. The cells were also equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature during the summer was maintained at +22-24 ºC, and during winter at +1820 ºC.
42. The cells were equipped with lavatory pans separated from the main area by partitions at least one metre high and a door. Such arrangements assured the detainees’ privacy when using the lavatory.
43. The applicant could take a fifteen-minute shower once a week.
44. He was given food three times a day in accordance with the established legal norms. The quality of the food was monitored on a daily basis by the medical staff of the detention facility.
45. The cells were equipped with dining tables enabling the inmates to eat at the same time. They were situated at a distance of two to three metres from the lavatories.
46. The applicant was allowed a daily one-hour outside walk.
47. The authorities ensured regular disinfection and pest control in the detention facility.
48. In support of their observations the Government provided several certificates issued by the governor of IZ-32/1 remand prison on 14 July and 21 July 2008, certain documents which attested to the destruction of registration logs, following the expiry of the five-year time-limit for their retention (dated 30 March 2006), statements by wardens (undated) and an agreement of 1 January 2002 between the IZ-32/1 remand prison and Bryansk City Pest Control Station on carrying out disinfection works in the facility.
49. The cells were extremely overcrowded. There were some thirty to forty inmates held in each cell, which implied two or three inmates per four square metres of cell space. The inmates had to take turns to sleep as the sleeping places were not sufficient for everyone.
50. The windows in the cells were covered with metal screens, which provided little or no access to daylight. The screens were removed after the applicant had left the facility.
51. The artificial light was insufficient. It was impossible to read without having to strain one’s eyes.
52. The ventilation did not function. As a result, it was always stuffy in the cells. The cells could only be ventilated when the windows and the doors were flung open during the summer which was, however, very rare.
53. The cells were not heated enough to avoid humidity from the very beginning of autumn until late spring. The walls were dirty, scuffed, with plaster falling off them. The walls near the lavatory area were covered with fungi caused by humidity. In cells nos. 76 and 77, where the applicant spent most of his time the roof was leaking from the corners. The corners of the cells were covered with mould. The temperatures were low and the inmates had to sleep with all their clothes on.
54. The floor in the cells was paved with asphalt and cement, which also caused constant humidity and filth. It was impossible to properly wash or sweep the floors.
55. The lavatory pans in cells nos. 24, 92, 109 and 111 were not separated from the rest of the cell. One had to use the toilet in plain view of one’s cellmates. In cells nos. 72, 74, 76, and 77 there was a partition between the lavatory pan and the rest of the cell. The partition measured approximately one metre in width and one metre in height. The lavatory pan was elevated from the floor by half a metre. The guards removed the curtain that the inmates had installed for privacy. Despite the partition, one used the toilet in plain view of one’s cellmates.
56. The cells were not equipped with sinks. Taps with cold water were the same ones used to flush the toilet; as a result, the inmates had to wash themselves and to take water from the tap above the toilet.
57. There was not sufficient furniture in the cells to store the inmates’ kitchen- and tableware, bread and toiletries.
58. In cells nos. 72, 74, 76, and 77 there was one table and one bench which could accommodate fourteen to sixteen inmates at a time, whereas in the other cells twenty to thirty persons had to wait for their turn.
59. All persons detained in the same cell had to take a shower simultaneously. As there were only fifteen shower heads, one shower-head was used by two to three inmates at a time.
60. The food was poorly prepared. It was tasteless and monotonous. Fresh vegetables and fruit were not included in the ration.
61. The applicant lodged numerous complaints with the prison administration about the conditions of his detention. He was advised of the financial constraints which made it impossible to improve the conditions of detention.
62. On an unspecified date in August 2000 the applicant lodged a complaint with the Prosecutor’s Office, which was forwarded to the Prisons Directorate of the Ministry of Justice of the Russian Federation for the Bryansk Region (Управление исполнения наказаний (УИН) Министерства юстиции РФ по Брянской области). After his complaint, half of cell no. 72 was whitewashed. An official from the Prisons Directorate visited the applicant in connection with his complaint. On an unspecified date in September 2000 the applicant received a response to his complaint, which he found unsatisfactory. He lodged a further complaint with the Prosecutor’s Office. The second complaint was dismissed on the grounds that it contained arguments which were substantially the same as the ones previously submitted.
63. On an unspecified date between September and October 2000 the guards entered cell no. 72 in the middle of the night, woke up the inmates, tore down the laundry lines and left. The applicant lodged a complaint against the guards with the Prosecutor’s Office, which found no misconduct on their part. After that the applicant lodged no further complaints, believing that it would be futile to do so.
64. On 3 June 2002 the inmates were given soup prepared with rotten fish. On 4 June 2002 the applicant and four other inmates complained about this incident. The head of catering tried to convince the inmates that the soup was edible even though it smelled, but refused to taste it himself. He also refused to replace the soup. The applicant lodged a complaint with the Prosecutor’s Office, which he later withdrew as the prison administration allegedly promised to follow up on his complaint. Ten days later, in the absence of any response, the applicant lodged another complaint, requesting the administration to follow up on the incident of 3 June 2002. The applicant was summoned to meet the administrative officers, who allegedly threatened him and transferred him to cell no. 92, where he spent one day.
65. On 21 June 2002 the applicant lodged a complaint with the Prosecutor’s Office in relation to the incident of 3 June 2002 and his subsequent intimidation by the prison officers. Following his complaint, the applicant was transferred to cell no. 111.
66. On 23 June 2002 the applicant was given mashed jelly–like peas. On 1 July 2002 the applicant was served with yellowish water instead of soup. On 24 June 2002 and 2 July 2002 the applicant complained about the quality of the food.
67. On 22 July 2002 the applicant received a reply from the Prosecutor’s Office, informing him that his allegations with regard to the quality of the food in prison were unfounded.
68. The applicant lodged subsequent complaints about the conditions of his detention with various administrative authorities, which all found that the statutory requirements had been complied with.
69. On 20 August 2002 the applicant lodged a complaint with the Sovetskiy District Court of Bryansk in respect of the substandard quality of the food in prison and his alleged intimidation by the prison officers. On 19 September 2002 the court dismissed the applicant’s complaint. The decision read, inter alia, as follows:
“... Section 23 of the Detention of Suspects Act sets the sanitary norm of 4 square metres of personal space per detainee.
It appears from the explanation provided by the facility’s representative and the documents pertaining to the inquiry conducted by the Prosecutor’s Office that it is not possible to provide the detainees of [Bryansk regional remand prison IZ-32/1] with the established norm of personal space as the facility is currently 50% over its designated capacity.
...”
70. The applicant was served with a copy of the decision of 19 September 2002 on 30 October 2002, after the statutory time-limit for appealing had already expired.
71. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
72. The RSFSR (Russian Soviet Federative Socialist Republic) Code of Criminal Procedure (in force until 1 July 2002 - “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator would issue a reasoned decision to that effect, which had to be communicated to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).
73. On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.
74. The RSFSR CCrP established that within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221).
75. The trial was to begin no later than fourteen days after the judge had fixed the trial date (Article 239).
76. The duration of the trial was not limited.
77. The appeal court was required to examine an appeal against the judgment at first instance within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-97338
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MYRONENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2 (procedural aspect)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1938 and lives in Lozova, Kharkiv region.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. On 10 July 1998 the applicant's son, Mr Y. M., was found dead in his house, in which he lived alone.
7. On 10 and 11 July 1998 the police questioned relatives, neighbours and friends of Mr Y. M. They were informed that the late Mr Y. M. lived alone and was not known to have been on bad terms with anyone. According to the applicant no on-site inspection was conducted.
8. On 11 July 1998 an autopsy was conducted. The forensic expert concluded that Mr Y. M. died of cerebral trauma caused by being hit on the head with a hard object and that the trauma could have been the result of a fall from his own height. No other bodily injuries were identified. The expert further noted that at the time of death Mr Y. M. was sober.
9. On 17 July 1998 investigator S. refused to institute criminal proceedings into the death of the applicant's son on the basis of the above autopsy report.
10. On 5 October 1998, however, criminal proceedings were instituted following information received by the police from the applicant, her other son and several other individuals, that on the eve of Mr Y. M.'s death he had had a drinking party in his house with several of his acquaintances and that two of them, Mr Z. and Mr K., had severely beaten him.
11. Mr Z. and Mr K. were arrested. Police questioned the persons who had provided this information or were eyewitnesses to the fight. The investigator also requested additional forensic examination as to the time and cause of death of Mr Y. M.
12. On 29 December 1998 the forensic medical examination confirmed the conclusions of the first autopsy report. It also noted that the head trauma did not have any traces which could identify the object which had caused this trauma.
13. During additional questioning of the witnesses to the events of 8 July 1998 they retracted their statements.
14. Following this, Mr Z. and Mr K. were released and the criminal proceedings were terminated on 26 March 1999 for lack of proof of crime, given that there were no signs of a fight on the body of Mr Y. M. and that participants in the party had denied that any conflict took place during the party.
15. By a letter of 19 April 1999 the Kharkiv Regional Prosecutor's Office informed the applicant that the investigation had been conducted by officer S., who had failed to establish comprehensively, fully and objectively all the circumstances of the crime and to identify all those involved.
16. By a letter of 30 June 1999 the Kharkiv Regional Prosecutor's Office informed the applicant that they had established that the investigation was incomplete and that disciplinary proceedings had been instituted against investigator S.
17. By a letter of 29 September 1999 the deputy head of the Kharkiv Regional Police Department informed the applicant, among other things, that they had established that there had been delays in the investigation, which had not been completed, and that for these reasons investigator S. had been disciplined.
18. On 29 October 1999 the forensic expert examination repeated the same conclusions and stated that with this trauma Mr M. would still have been able to move for up to several hours.
19. On 30 October 1999 the investigator terminated the proceedings again. He established that the forensic examination did not confirm any signs of a fight or self-defence on the body of Mr Y. M. Furthermore, Mr V. M. retracted his statement about the beating, maintaining that he had made it in fear of the police. This version was also confirmed by the fact that people who had visited Mr Y. M.'s house had not seen any signs of a fight there.
20. On 1 November 1999 the decision to terminate the criminal proceedings was quashed following the applicant's complaint that the police officers who had arrived first at Mr Y. M.'s house had not been questioned concerning the site. The investigator was also instructed to conduct an on-site reconstruction of events with Mr K., who was the last to see Mr Y. M. alive.
21. On 11 February 2000 an additional forensic examination concluded that the trauma could not have been caused by a fall from his own height.
22. By a letter of 14 March 2000 the applicant was informed by the Kharkiv Regional Police Department about the results of the latest forensic examination and informed again that investigator S. had been found liable for the delays in the investigation.
23. On 30 May 2000 the investigator suspended the criminal proceedings on the ground that the identity of the person or persons responsible for the death of the applicant's son had not been established.
24. On 27 February 2001 another forensic examination noted that the trauma could have been caused by several blows with a smooth hard object.
25. On 13 December 2001 the further forensic examination concluded that the trauma could have been caused by a singular blow or several blows to the head by a hard object and not by a fall from his own height or blows with fists.
26. By a letter of 17 November 2003 the head of the Investigation Unit of the Kharkiv Police Department informed the applicant that investigators S. and D., who had dealt with the case had been disciplined for premature decisions to terminate and suspend criminal proceedings and for delays in the conduct of all necessary investigative actions.
27. On 9 September 2005 the investigator appointed an additional investigation. The proceedings are still pending.
28. The relevant provisions of the Constitution provide:
“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”
“Every person has the inalienable right to life.
No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...”
29. The relevant provisions of the Code of Criminal Procedure read as follows:
“The court, prosecutor or investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.”
“Criminal proceedings shall be instituted on the following grounds:
(1) applications or communications from ... individuals;
...
(5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court.
A case may be instituted only when there is sufficient evidence that a crime has been committed.”
VIOLATED_ARTICLES: 2


ITEMID: 001-22823
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: MADSEN v. DENMARK
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Hans Eigil Madsen, is a Danish national, who was born in 1974 and lives in Glostrup. He is represented before the Court by Mr Harlang, a lawyer practising in Copenhagen The respondent Government are represented by their Agent Mr Hans Klingenberg, the Ministry of foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 25 April 1998 until 23 May 2000 the applicant was employed, notably as a passenger assistant by a Danish shipping company, henceforth called DFDS (Scandinavian Seaways), and he was a member of a trade union, henceforth called DSRF (Dansk Sø-Restaurations Forening).
In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board. At the relevant time he worked in shifts of 16 days at work on board followed by 8 days of leave on land.
DFDS had issued a circular on 15 April 1993 laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company/shipmaster.
On 11 June 1999 DFDS issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of 0.2 per mille and when on leave on board 0.4 per mille. When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test. A passage headlined “control” stated:
“By request of authorities, the Captain or DFDS all employees are under an obligation to submit to tests for alcohol, drugs or any other intoxicating substances. The employees can expect to undergo such a test without notice at least once a year.”
A passage headlined “violation of these regulations” stated inter alia:
“A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal...”
A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it.
In the summer of 1999 DFDS introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine.
In letters of 6 July and 2 August 1999 DSRF and another trade union henceforth called RBF (Restaurationsbranchens Forbund) informed DFDS that they could not approve of the new set of regulations. Thus, a conciliation meeting was held on 28 July 1999 between the employer and the said trade union, but the parties failed to reach an agreement.
On 15 September 1999 the applicant, allegedly without any kind of suspicion, was requested to provide an urine sample behind a screen in a room in which a person from a British company called Medscreen, hired for this purpose, was present. It appears that no trace of alcohol or drugs was found.
DSRF and RBF instituted civil proceedings against DFDS before a Court of Arbitration claiming that DFDS should acknowledge that the control procedure introduced by the regulations of 11 June 1999 was wrong and that accordingly, despite any given signature the employees could not be obliged to provide a urine sample. Among other arguments they claimed that the random urine tests were in breach of Article 8 of the Convention. On 23 February 2000 the Court of Arbitration found for DFDS. In its decision the Court stated:
“Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states:
Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations. Likewise, the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose, do not offend the employees’ dignity, and do not cause any loss or appreciable inconvenience for the employees.
It is undisputed that alcohol is a legal stimulant and drugs are not, though in Denmark the possession of hashish for ones own consumption is seen as a minor offence. The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship, which is one of the reasons why the merchant navy prohibits any possession of drugs on board.
The past regulations [of 1993] issued by DFDS solely authorised a control measure with regard to the employees’ alcohol consumption. It appears that the past regulations were not objected to and, as the case has been presented before the Court, it is mainly the test introduced [in 1999] for drugs and other intoxicating substances that caused the present dispute.
It is undisputed that on two occasions within the last half year two employees have been in possession of and used drugs. The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant, which must be considered a serious problem. Therefore, DFDS do have a justified reason for introducing measures of control suitable and contributing to solve this problem.
The consumption of alcohol will usually be traceable by the smell or by using a breathalyser. This is not the case when it comes to drugs or any other intoxicating substances. Taking a blood sample would require the consent of the person concerned. It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee’s ability to perform his or her duty. Thus, providing a urine sample is a possible measure of control.
There is no substantiation for assuming that DFDS uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs. No information is provided as to whether the samples are stored, and in the affirmative how, but any extension of the test, be it on the basis of a sample already submitted or of future tests, do require that the employees are informed. Also such an extension may be brought before a Court of Arbitration for review.
The employees do not suffer any loss as the test is submitted to during working hours.
The control measure introduced by DFDS applies to all employees on board including the Captain. X testified that the test is performed in a room in private. Thereafter the urine sample is handed over. In this way the test cannot be considered to expose the individual’s decency. In addition, since everybody is obliged to submit to the test the individual’s honour cannot be considered infringed.
The plaintiff has submitted that the test infringes the employees’ spare time, as it will reveal which activities the employees have been involved in. However, an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties. Accordingly, this entails some limits on the employees’ spare time before coming to work. However, having regard to the fact that the consumption of alcohol and the use of drugs, unless taken on a regularly basis, do not leave traces for more than one or two days, the Court does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded. The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding.
The Chemical-Legal Institute (Retskemisk Institut) has stated that besides from reducing learning and memory, using hashish might reduce one’s psychomotor functions up till 24 hours when doing complex tasks. Perhaps no problems will occur when doing the daily tasks that the plaintiff’s members perform. Nevertheless, as all crew members are part of the safety crew, though rarely needed, it is absolutely essential that they are, in a fully adequate way at all times, able to perform functions related to the safety on board, which in case of a catastrophe might entail complex tasks. Accordingly, operational considerations do justify that the defendant introduced the control measure in question. The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since, having regard to the latest catastrophes on ships in the Nordic oceans, a customer has a right to assume that the shipping company aim to have as much safety on board as possible, and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way.
The regulations in question contain a passage according to which a violation will lead to immediate dismissal. The defendant cannot unilaterally by introducing such a passage change the required conditions for a dismissal, and a given signature by an employee on the regulations does not entail that such a change has been accepted. However, with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company.”
Below is a general description of the Danish industrial relations system, also known as the “Danish Model”.
The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles:
1. the right of employees to organise in trade unions;
2. the right of the employers to manage and control work;
3. the right to industrial actions (strike, boycott and lockout) to obtain
e.g. a collective agreement;
4. the embargo on industrial action which means that no strikes are
lawful during the term of a collective agreement;
5. the establishment of a special arbitration tribunal to deal with all
violations of the September Agreement.
The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes.
Thus, according to the “Danish Model” the content and scope of an employer’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes.
Disputes between the labour market parties are, failing friendly settlement, finally determined by either courts of arbitration or by the Labour Court depending on the dispute in issue.
Control measures.
As stated above, the September Agreement from 1899 acknowledged the employer’s right to manage and control work. The right to carry out control measures was acknowledged firstly in a decision by a Court of Arbitration from 1913, and confirmed by subsequent case law. According to the said case law, the following guidelines have been characterised as reasonable control measures:
1. The control measure may not be unnecessary, but must serve a sensible purpose.
2. The form of it may not be humiliating for the employees.
3. It may not cause any loss or significant inconvenience.
4. It must be possible to submit the justification of the measure to industrial arbitration.
5. When a control measure has proved expedient and has been practised on the majority of the company employees, it can be extended to cover the rest of the staff.
6. The employer should notify his staff as early as possible of any contemplated control measure.
7. Employees shall - at least in so far, cf. point 4 above - observe the employer’s requirement of introduction of a control measure, and the trade union may be held responsible if it supports any resistance.
8. The collective agreement need not include any authority for the introduction of control measures. If a regular scheme has been laid down in the collective agreement, the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections.
9. Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “undue delay” to the employees.
10. No claim can be made to leave salaried employees (masters, foremen) out of the search scheme.
11. Control measures (in particular searches) must be carried out correctly and unassailably, but not necessarily by persons who are independent of the employer.
12. Controls of women (searches) must be carried out by women.
Act on Use of Health Data.
Act no. 286 of 24 April 1996 on Use of Health Data etc. on the Labour Market (Lov om brug af helbredsoplysninger på arbejdsmarkedet) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method. The explanatory notes to the Bill forming the basis of the Act (L 13 of 4 October 1995) gives a detailed account of the scope of the Act. The notes state partly which situations are comprised by the Act, partly which situations fall outside the Act. Among other thing is stated (see para. 3, section C, of the general explanatory notes of the Bill):
“This Bill does not affect the employer’s right to institute general control measures affecting employees, e.g. in the form of tests to detect the abuse of alcohol or drugs, provided that such tests are not intended as health examinations”.
It is further stated (see the special explanatory notes to section 1 of the Bill):
“In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested. This is the case, inter alia, when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract.
In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks. Other stimulants than alcohol may be involved.
Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease. Whether such prohibition and the pertaining checks are justified is a general question under employment law.”
ILO
The ILO joint Maritime Commission adopted in 1991 a resolution concerning drugs and alcohol in the maritime industry. Moreover, the joint ILO/WHO Committee on the Health of Seafarers adopted in 1993 the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry.
Based on the ILO Convention no. 73 on the Health of Seafarers, which entered into force on 1 August 1955, Denmark has adopted a number of legal provisions as well as an executive order (no. 903 of 28 September 1999) concerning medical examination of seafarers, the purpose of which is to ensure, having regard to the safety of the vessel and the safety and health of everybody on board, that the seafarers’ health is satisfactory. Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person’s function on board the vessel.
The Seamen’s Act
Pursuant to the first sentence of section 59 (3) of the Seamen’s Act (cf. Consolidated Act no. 766 of 19 September 1995) bringing drugs and other toxic substances on board a ship is prohibited. Pursuant to subsection (4) of the same provision, the shipmaster may subject the seaman’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board. The seaman is entitled to be present at the search. The provision is supplemented by section 17 (1)(iii) and (vi) of the Act according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication, or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination. According to Danish case law, a single incident of gross intoxication may lead to dismissal. However, in a recent judgment of 12 April 2002 (published in the Weekly Law Journal (Ugeskrift for Retsvæsen


ITEMID: 001-77496
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KWIATKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Complaint concerning the excessive length of the second set of proceedings admissible;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1949 and lives in Bad Marienberg, Germany.
5. Between December 1993 and 15 October 1998 the applicant was involved in divorce proceedings. On the latter date the proceedings were discontinued as the applicant had withdrawn his petition for divorce.
6. On 5 November 1998 the applicant’s wife (“the petitioner”) lodged with the Warsaw Regional Court (Sąd Okręgowy) a petition for divorce.
7. It appears that the court held over twenty hearings. Some of the hearings were adjourned due to the absence of the petitioner or witnesses. The first hearing therefore was held on 4 February 2000. The court heard in total six witnesses.
8. On 7 October 2004 the Regional Court gave judgment. Both parties appealed against the judgment.
9. On 4 January 2005 the applicant lodged with the Warsaw Court of Appeal a complaint about a breach of the right to have his case heard within a reasonable time. He relied on the 2004 Act. On 28 February 2005 the Court of Appeal dismissed his complaint. The court examined the course of the impugned proceedings and held that there had been no delays for which the Regional Court could be held responsible. The court finally held that the case was complex.
10. On 24 April 2006 the court rejected the petitioner’s appeal as she had failed to pay court fees.
11. The appellate proceedings concerning the appeal lodged by the applicant are pending before the Warsaw Court of Appeal (Sąd Apelacyjny).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110888
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF FIRMA VERITAS TOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Tribunal established by law)
JUDGES: Angelika Nußberger;Ann Power-Forde
TEXT: 4. The applicant company, Firma Veritas, TOV, is a Ukrainian limited liability company registered in Dnipropetrovsk.
5. In June 2005 the applicant company lodged a claim with the Dnipropetrovsk Regional Commercial Court (“the Commercial Court”) against company E., seeking the recovery of debts owed for legal services.
6. On 22 August 2005 the above court allowed the claim. On 17 October 2005 the Dnipropetrovsk Commercial Court of Appeal (“the Court of Appeal”) partly amended the above judgment. On 14 February 2006 the Higher Commercial Court upheld the latter decision. On 30 May 2006 the Supreme Court quashed the above decisions and remitted the case for fresh consideration.
7. The hearing of 30 May 2006 took place in the presence of company E.’s representatives and in the absence of the applicant company’s representative, who allegedly had not been informed thereof. The applicant company states that prior to the hearing of 30 May 2006 company E. sent a letter to the Supreme Court asking it to consider the case “with special attention”.
8. On 30 May 2007 the Commercial Court partly allowed the applicant company’s claim and ordered company E. to pay the applicant company a sum comprised of debts owed, losses adjusted for inflation, a penalty and court fees.
9. On 19 September 2007 the Court of Appeal amended that judgment, having allowed the applicant company’s claim in full.
10. On 13 February 2008 the Higher Commercial Court upheld the above decision.
11. On an unspecified date company E. lodged an appeal in cassation with the Supreme Court against the decision of 13 February 2008 along with a request for an extension of procedural time-limits for lodging that appeal, stating that it had received a copy of the above decision only on 13 March 2008 and could not, therefore, appeal against it on time.
12. On 10 April 2008 the Supreme Court opened the cassation proceedings. On 13 May 2008 it quashed the decisions of 19 September 2007 and 13 February 2008 on the grounds that the courts’ findings had been unfounded and erroneous, and upheld the judgment of 30 May 2007. It stated, in particular, as follows:
“Pursuant to the provisions of Articles 6 and 8 of the Constitution of Ukraine, ... the Supreme Court does not consider it necessary to remit the case for fresh consideration to the first-instance court, because that would contradict Articles 125 and 129 of the Constitution of Ukraine, Sections 2 and 39 of the Judiciary Act governing the status of the Supreme Court and its tasks of ensuring the legitimacy in the administration of justice, and would entail quashing of the legitimate judgment of 30 May 2007, which would be contrary to the Constitution. Thus, the list of the consequences of the examination of an appeal in cassation against a decision of the Higher Commercial Court, as envisaged by Article 111-18 of the Code of Commercial Procedure, is not a procedural impediment to the upholding by ... the Supreme Court of the judgment ... of 30 May 2007”.
13. The applicant company states that prior to the hearing of 13 May 2008 it requested the Supreme Court to conduct audio-recording of that hearing and sought the withdrawal of some of its judges, but its requests were not examined.
14. In June 2005 the applicant company lodged another claim with the Commercial Court against company E. for the recovery of debts owed for legal services.
15. On 22 August 2005 the above court allowed the claim. On 17 October 2005 the Court of Appeal partly amended the above judgment. On 7 February 2006 the Higher Commercial Court upheld the latter decision. On 30 May 2006 the Supreme Court quashed the above decisions and remitted the case for fresh consideration.
16. The hearing of 30 May 2006 took place in the presence of company E.’s representatives and in the absence of the applicant company’s representative, who allegedly had not been informed thereof. The applicant company states that prior to the hearing of 30 May 2006 company E. sent a letter to the Supreme Court asking it to consider the case “with special attention”.
17. Following the reconsideration of the case, on 13 December 2007 the Commercial Court delivered a judgment having allowed the claim in part. On 1 October 2008 the Court of Appeal quashed that judgment and rejected the claim as unsubstantiated. On 23 February 2009 the Higher Commercial Court upheld the latter decision.
18. In June 2005 the applicant company lodged yet another claim with the Commercial Court against company E. for the recovery of debts owed for legal services.
19. On 12 December 2005 the above court delivered a judgment. On 7 June 2006 the Higher Commercial Court quashed it and remitted the case for fresh consideration.
20. On 29 November 2011 the applicant company informed that, following the reconsideration of the case, its claim had eventually been allowed in part, the final decision having been given by the Higher Commercial Court on 15 October 2008.
21. The relevant domestic law is summarized in the cases of Sokurenko and Strygun v. Ukraine (nos. 29458/04 and 29465/04, §§ 10-12, 20 July 2006) and Bazalt Impex, Tov v. Ukraine (no. 39051/07, §§ 10-12, 1 December 2011).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98537
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VETRENKO v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1975 and lives in Chişinău.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. According to the prosecution, M. was invited to a bar on 19 May 1997 by several persons, including R. M. and U., her former neighbours, and the applicant, in whose apartment R. M. and U. rented a room.
8. In the bar they all consumed alcohol and then added a soporific to M.'s glass, after which she fell asleep. R. M. took M., U. and the applicant in his car to a remote area. R. M. and the applicant took M. out of the car and tried to strangle her with a cord. When this failed they tied her limbs and threw her into a well, where she drowned.
9. On 1 June 1997 S. P., a police officer, reported that he was trying to locate T., who could have information regarding M.'s whereabouts. Officer S. P. proposed indentifying the person(s) offering M.'s apartment for sale in order to find T.
10. On 3 June 1997 T., one of M.'s neighbours, made a written statement, giving details about M.'s murder as allegedly told to her by U. She named R. M., U. and S. as perpetrators of the crime. She also mentioned her intention to move to Tashkent, Uzbekistan, where her grandmother lived. On 4 June 1997 officer S. P. filed a report on a conversation with T. in which he reported that T. had stated that the applicant had also been involved in the crime. On 5 June 1997 T. was interviewed by investigator G. and confirmed the events as described in the officer's report. She declared that U. had told her about the details of the crime on 20 May 1997. She did not mention the applicant's name or that he had participated in any manner in the crime.
11. On 4 June 1997 the police found the applicant at his friends' address and told him that he owed them money. He was requested to follow them to the police station, where he was arrested. He was then informed that he, R. M. and U. were suspected of having murdered M.
12. According to the applicant, immediately after his arrest he told the investigator all the details about the murder of M. which he had found out from R. M., including the place where the body had been left. He had not reported the crime earlier for fear of R. M.'s retaliation. However, he was then ill-treated for six hours by the investigators to make him own up to the crime: he was allegedly nearly asphyxiated several times with a gas mask. He was also verbally abused and threatened with more serious forms of ill-treatment.
13. In the evening of 4 June 1997 the applicant made a self-incriminating statement in the presence of a State-appointed lawyer and two witnesses. That lawyer allegedly never participated in the proceedings after the confession had been made. In his statement the applicant described the manner of M.'s murder and the place where her body had been left. He stated that he and R. M. had attempted to strangle M. with a cord, and then tied her up and threw her into a well. No mention was made of hitting M. or causing other injuries to her. The confession was filmed. Before the filming of the confessions, a medical expert was requested to verify the presence of any signs of ill-treatment on the applicant's body. He found no such signs. The applicant expressly stated that he had not been ill-treated. He later declared in court that the filming of his confession had been rehearsed with the investigator, that it was a farce and that he had been warned about further ill-treatment if he were to deny his previous confessions.
14. The applicant was offered the opportunity to sign the minutes of the interview, first before making any statements in order to confirm that he had been read his rights and then at the end of the interview to confirm what he had stated. However, he refused to sign in both places. He later explained this refusal as a last attempt to resist unlawful pressure.
15. The second part of the confession made on the same day involved going to the well where the victim's body had been deposited and filming his confession there. He refused to sign this confession.
16. On 5 June 1997 the applicant made another statement, which was essentially the same as that made the day before. He was allegedly threatened with further ill-treatment if he were to deny his earlier confessions.
17. A forensic report was also drawn up on 5 June 1997, concluding that M. had died from drowning and that her body had a number of bruises on it, caused by repeated hitting, as well as marks on her hands and legs from the cord with which she had been tied. No sign of strangulation was found on her neck. The expert established that M. had died “several days before the report was filed”.
18. In the afternoon of 5 June 1997 the applicant was allowed to call his mother and on 6 June 1997 he declared, in her presence and in the presence of the investigator, that he was innocent. He also mentioned a person with whom he had been held in the same cell at the police station who could confirm that he had been returned to the cell in a poor general state after ill-treatment by the police. However, he was told by both the investigator and his lawyer that the courts would not believe such statements. He allegedly mentioned his ill-treatment and the possible testimony of his cellmate in his complaints to the courts and the prosecutors but these were not followed up. His former cellmate was apparently not questioned. In all his subsequent interviews the applicant maintained his innocence and explained that he had found out about some of the details of the murder, including the place where the body had been deposited, from R. M., who had taken him to the well after the murder.
19. The applicant's new lawyer allegedly noted, on 12 October 1997, that there were no signatures on the minutes of the interview, contrary to the law. On 28 October 1997 signatures appeared on the minutes and the applicant was allegedly forced to sign. He refused and the last-minute intervention of his mother prevented the investigators from ill-treating him further. As a result of her intervention the investigators had to write in the minutes that the applicant had refused to sign. He was allegedly prevented from writing in the minutes the date of 28 October 1997 as the date when he had refused to sign, contrary to Article 124 CCP (see below). On 31 October 1997 the applicant complained about this fact to the prosecution, but to no avail. The minutes of the interview with the applicant of 4 June 1997 were signed by the investigator in charge of the case, G. The statement concerning the applicant's refusal to sign the minutes was countersigned by investigator D., who took charge of the case at a later date.
20. For several months in 1998 he was allegedly detained in inhuman conditions in the cellar of the police inspectorate.
21. In a statement to the police, T.'s sister mentioned Tashkent as a place where their relatives lived.
22. On 16 December 1998 the Chişinău Regional Court acquitted the applicant of the charge of murder and convicted R. M. The court found, inter alia, that it had not been established that the applicant had participated in the crime. It had been established, however, that he had failed to report it when he was told about it by R. M., which was a criminal offence. The court also found that the confessions made by the applicant in the first two days of his detention could not be used as a basis for convicting him because they contradicted other evidence in the case (his refusal to sign the confessions, which raised doubts about their truthfulness; the fact that as from 6 June 1997 and throughout the proceedings he had denied having killed M.; and his alibi, two persons, including I. M., who also lived in the applicant's apartment at the time of the events, having confirmed that he had returned home at about 11 p.m. on the night of the murder). The court convicted the applicant of failing to report the crime committed by R. M., but ordered his release on the basis of an amnesty applicable to lesser crimes.
23. On 4 November 1999 the Court of Appeal upheld the lower court's judgment. The court noted that another person, S., was also suspected of having helped R. M. to murder M. and that his case had been disjoined because he was in hiding. The court also noted that, apart from the self-incriminating statement made by the applicant on 4 and 5 June 1997, there was nothing in the file proving his involvement in the crime.
24. On 21 December 1999 the Supreme Court of Justice quashed those two judgments, finding that the courts had exceeded their competence and had accepted, without giving valid reasons, the applicant's claim that he had not participated in the crime. A re-hearing of the case was ordered.
25. On 21 September 2001 the Chişinău Regional Court convicted the applicant of participation in the murder of M. and sentenced him to 16 years' imprisonment.
26. The court referred to the evidence in the case: witnesses testified to having seen R. M., U., S. and the applicant with M. in a bar on the night of her disappearance. Witness T. testified about the intentions of R. M. and U., who had spoken to her about their plan, to kill M. and sell her apartment. Witness M.E. and I.A. testified about R. M. and U.'s actions to obtain the documents necessary for the sale of M.'s apartment. Witness M.N. stated that she had witnessed S. invite M. to a bar on the day of her disappearance.
27. During a search of the applicant's apartment some of the documents relating to the sale of M.'s apartment had been found. The record of the search did not specify whether the documents were found in the room rented by R. M. and U. or in another place. One relevant document was found during a personal search of R. M.
28. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M., and, having failed to do so, had thrown her into a well. The court found that the evidence, in addition to his confessions, proved his guilt. It was established that R. M. and U. had fraudulently obtained various documents from M. with the intention of selling her apartment. Moreover, R. M. had never confessed and the applicant's confessions had been made before the authorities had known the details such as the place where the body was found and the manner of the killing. These circumstances were later confirmed when the applicant showed them that place and when the experts recovered the body in his presence. The forensic report confirmed the types of injuries inflicted as coinciding with the description of the murder given by the applicant.
29. Besides, there had been no evidence that the applicant had been ill-treated, as proved by the medical examination carried out before his first interview. Moreover, the applicant had declared, in the presence of a lawyer, that he had not been ill-treated. The court considered that his refusal to sign the confession was a means of avoiding criminal responsibility.
All of the above proved the applicant's guilt.
30. In his appeal, the applicant declared that he had found out the details about the murder from R. M., who had taken him to the crime scene on the day after the murder. He claimed that he had been ill-treated by the police in order to own up to the crime. The judgment did not specify the date of the murder and there was evidence confirming that M. had died later than the prosecution maintained. The applicant also submitted that, before being questioned as an accused, he had told the police all the details about the murder which he had found out from R. M. This contradicted the court's finding that the police had not had any details about the murder before the applicant's interview as a suspect. He refused to sign both confessions but could not offer further resistance due to fear of ill-treatment. He referred to evidence in his criminal file that on the morning of 4 June 1997 his relatives had concluded a contract with a lawyer for his representation but that the investigator had refused to allow that lawyer to represent him. He was then provided with another lawyer whom he did not trust and who did not protect his rights, but was in agreement with the investigator. In addition, the presence of a medical expert and witnesses at the first interview was not a common practice and the expert had not been warned, according to the law, of his criminal responsibility for making false statements. The unusual presence of so many persons at the very first interview only confirmed that the investigator had known that the applicant's will had been broken as a result of ill-treatment and he had agreed to “confess”. The investigator needed to create a very strong appearance of lack of ill-treatment which would be difficult to rebut. The court had failed to even mention the statement of I. M., which constituted an alibi for the applicant because it confirmed that he had returned home much earlier than R. M. and U.
31. On 5 February 2002 the Court of Appeal upheld the first-instance court's judgment. The court found that the guilt of R. M. and of the applicant had been fully proved by the witness statements of T., the police officer who reported on T.'s statements and the results of the forensic report. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M. and after they failed to do so had thrown her into a well.
The applicant's withdrawal of his earlier statements was considered a means of avoiding criminal responsibility.
32. In his appeal in cassation the applicant reiterated his arguments made earlier and added that U. had testified that he had been back home at 11 p.m., as confirmed by I. M., thus providing him with an unchallenged alibi. Witness T. did not mention his name in her statement. The illtreatment applied to him (making him wear a gas mask and blocking the access of air until he lost consciousness from suffocation) could not have left marks on his body. He referred to the findings of the forensic report, which contradicted his statements and the version of the prosecution, according to which he and R. M. had attempted to strangle M. That report did not find any marks of strangulation but found multiple injuries, which confirmed that M. had been hit repeatedly. The date of the murder had not been established: the residual quantity of the soporific in M.'s blood was small, confirming that she had taken it a long time before her death. In addition, the expert declared that she had died several days before the report was drawn up (on 5 June 1997), which excluded the date of 19 May 1997 as the date of the murder. Another expert submitted in 1998 that M. had died a week before the report of 5 June 1997, which also challenged the prosecution's version that M. had been murdered on 19 May 1997. The applicant drew the court's attention to his refusal to sign the confessions, which cast doubt on their genuine character. He invoked Articles 3, 5 and 6 of the Convention.
33. On 16 April 2002 the Supreme Court of Justice upheld the judgment of 21 September 2001. The court found that the guilt of the accused had been fully proved. It referred to the prosecution's version of events, according to which the applicant and R. M. had attempted to strangle M. It also referred to the confession made by the applicant on 4 June 1997 in the presence of a lawyer, according to which he and R. M. had taken M. to a well and hit her repeatedly but because she had not died, they had thrown her into the well, where she drowned. The forensic report confirmed the manner of M.'s killing and the injuries on her body corresponded to the applicant's statements. In addition, witnesses confirmed the accused's intentions to sell M.'s apartment and the relevant documents were found in the apartment in which all the accused lived.
34. The court found that there was no evidence of ill-treatment, the applicant having made his confessions in the presence of his lawyer and a number of other persons.
35. The relevant provisions of the Code of Criminal Procedure (in force at the time of the events) read as follows:
“Article 55
... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents.
Article 62
... The initial interview of an accused in custody shall be made only in the presence of a defence counsel, chosen or appointed ex-officio.
Article 115
The minutes of an investigation procedure shall be filed during that procedure or immediately thereafter. ...
After the end of the interview the audio or video recording shall be reproduced in full for the interviewee. ... The audio or video recording shall end with a declaration by the interviewee confirming the correctness of the recording.
Article 124
If the accused ... refuses to sign the minutes of the investigation procedure, a note on that shall be made in the minutes, signed by the author of the minutes.
Anyone who refuses to sign the minutes shall be given the possibility to explain the reasons for the refusal, which shall be noted in the minutes”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1