ITEMID: 001-58739
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF NIEDBALA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Elisabeth Palm
TEXT: 6. On 31 August 1994 the applicant was arrested. On 2 September 1994 the Rybnik District Prosecutor, W., remanded him in custody on suspicion of theft of a car.
7. The applicant appealed to the Katowice Regional Court. On 12 September 1994 the court dismissed the appeal, finding that there was sufficient evidence to establish that the applicant might have committed the offence concerned and the reasons for which the applicant had been remanded in custody had not ceased to exist.
8. On 21 September 1994 the Rybnik District Public Prosecutor prolonged the applicant's detention until 30 November 1994, considering that the evidence gathered in the course of investigations strongly indicated that the applicant had committed the offence in question. An expert opinion had still to be taken.
9. On 10 October 1994 the Katowice Regional Court dismissed the applicant's appeal against this decision, considering that the evidence strongly indicated that the applicant had committed the offence in question. Further time-consuming evidence still had to be taken, which justified the prolongation of the detention.
10. On 24 October 1994 the Rybnik District Public Prosecutor refused to release the applicant, considering that the investigations had not been completed, further forensic evidence had to be taken and the reasons for which the detention had originally been decided had not ceased to exist.
11. On 2 November 1994 the applicant wrote a letter to the Ombudsman, complaining about alleged irregularities in the criminal proceedings against him and about having allegedly been assaulted by the police on his arrest. The prison authorities forwarded this letter to the Rybnik District Prosecutor. On 23 November 1994 the Rybnik District Prosecutor informed the applicant that the letter to the Ombudsman had been forwarded to the Tychy District Public Prosecutor, for the purpose of investigating the alleged assault. It was later forwarded to the Ombudsman. The letter reached the Ombudsman's office on 27 December 1994 and was registered there under file number RPO 174886/94/II. On 28 November 1994 the applicant sent a further letter to the Ombudsman.
12. On 15 November 1994 the Katowice Regional Prosecutor dismissed the applicant's appeal against the decision of 24 October 1994. The Prosecutor considered that the evidence strongly indicated that the applicant had committed the offence in question. The reasons for which the detention had been ordered had not ceased to exist. The investigations should be continued and this required that the applicant should remain in detention.
13. On 9 March 1995 the applicant filed a request with the Katowice Regional Court to have the lawfulness of his detention reviewed as provided for by Article 5 § 4 of the European Convention of Human Rights. This request remained unanswered.
14. On 20 March 1995 the Katowice Regional Court convicted the applicant of possessing stolen goods and ordered that he be released from detention on remand. The applicant and the Public Prosecutor filed appeals against this judgment.
15. On 21 April 1995 the applicant was rearrested and the Racibórz District Public Prosecutor decided to put the applicant in detention on remand on suspicion of attempted theft of a car on 20 April 1995. The applicant appealed to the Racibórz District Court, invoking, inter alia, Article 5 § 3 of the Convention. On 27 April 1995 the court dismissed the appeal, considering that the detention on remand had been ordered in accordance with the law. Article 210 § 1 of the Code of Criminal Procedure provides that it is the Public Prosecutor who is competent to decide on detention on remand.
16. On 12 June 1995, in reply to the applicant's letter of 2 November 1994, the Ombudsman informed the applicant that the ratification of the Convention did not automatically entail the derogation of the provisions of Polish law relating to the authorities competent to decide on deprivation of liberty. Thus the courts and prosecutors were still obliged to apply domestic law currently in force in this respect. The relevant amendments to the Code of Criminal Procedure had already been adopted by Parliament, but they had not yet entered into force. Current public debate about the possible direct applicability of the Convention in the domestic legal order was of a purely theoretical nature. The decisions concerning the applicant's detention were therefore in accordance with the law.
17. On 5 September 1995 the Katowice Court of Appeal amended the impugned judgment of 20 March 1995 in that it found the applicant guilty of aiding and abetting the sale of stolen goods and sentenced him to two years and six months' imprisonment and a fine.
18. At the relevant time, the authorities competent to decide on detention on remand were provided for in Articles 210 and 212 of the Polish Code of Criminal Procedure of 1969, which read as follows:
"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, they shall be ordered by the prosecutor (...)."
"1. A decision concerning preventive measures may be appealed [to a higher court] ....
2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...."
19. These provisions were amended on 29 June 1995 by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes, which entered into force on 4 August 1996. Pursuant to this amendment, detention on remand could be imposed only by a court order.
20. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:
“1. Detention on remand shall be imposed by a court order.
2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.
3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court."
21. At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles 87 and 88 of the Code of Criminal Procedure of 1969, which, insofar as relevant, provided:
"The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..."
"A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it."
22. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding on the application of the preventive measures, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session, if he or she is present. It is not mandatory to inform the lawyer of the date and time of the court session, unless the suspect so requests and if it will not hinder the proceedings.
23. The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand, or an appeal against a decision to impose or to prolong detention on remand is to be considered.
24. At the material time the relations between the organs of the Polish State were set out in interim legislation, i.e. the Constitutional Act of 17 October 1992 (Mała Konstytucja). Article 1 of the Act laid down the principle of the separation of powers in the following terms:
"The legislative power of the State shall be vested in the Sejm and the Senate of the Republic of Poland; the executive power shall be vested in the President of Poland and the Council of Ministers; and judicial power shall be vested in the independent courts."
25. Under Article 56 of the Act, the Council of Ministers (Rada Ministrów) shall be composed of the Prime Minister, Deputy Prime Ministers and Ministers.
26. In pursuance of Article 1 of the Act of 20 June 1985 (Ustawa o sądach powszechnych), the courts are entrusted with administration of justice in the Republic of Poland. The courts are courts of appeal, regional courts and district courts. Under Article 9 of the Law, the Supreme Court exercises supervisory jurisdiction over lower courts.
27. Article 1 of the Act of 20 June 1985 on Prosecuting Authorities (Ustawa o Prokuraturze) which determines general principles concerning the structure, functions and organisation of prosecuting authorities, at the material time read as follows:
"1. The prosecuting authorities shall be the Prosecutor General, prosecutors and military prosecutors. Prosecutors and military prosecutors shall be subordinate to the Prosecutor General.
2. The Prosecutor General shall be the highest prosecuting authority; his functions shall be carried out by the Minister of Justice."
Article 2 of the Act reads:
"The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences."
28. Under Article 7 of the Act, in carrying out his statutory duties, a prosecutor shall abide by the principles of impartiality and equality of citizens before the law.
29. Pursuant to Article 8 of the Act, a prosecutor is independent in carrying out his or her duties, within the limits set out in this Article. A prosecutor shall abide by the instructions, guidelines and orders of his superiors. However, if an order relates to the substance of any action to be taken in proceedings, a prosecutor may request [his superior] to issue the order concerned with reasons in writing, to alter the order, to relieve him from performing an act prescribed by that order, or to remove him from conducting the case in question. The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order."
30. Chapter III of the Code of Criminal Procedure of 1969, applicable at the material time, entitled "Parties to proceedings, defence counsel, representatives of victims and representatives of society", described a prosecutor as a party to criminal proceedings. According to all the relevant provisions of the Code read together, a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings. In particular, after completing the investigation, he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case.
31. Under Article 3 of the Code of Criminal Procedure of 1969 ”organs conducting criminal proceedings [including a prosecutor] shall examine and take into account evidence in favour of as well as against the accused.”
32. Under Article 1 of the Ombudsman Act of 15 July 1987, it is the Ombudsman's task to examine, in his capacity as the guardian of human rights, whether the acts or failure to act on the part of the authorities, organisations and institutions whose functions necessarily impinge on these rights, breached the law or the principles of equity. The Ombudsman may undertake measures provided for by law if he receives information from which it transpires that human rights have been breached. Pursuant to Article 13 of the Act, he is competent to investigate individual complaints. When investigating such complaints he may, inter alia, demand that the judicial, prosecuting and administrative authorities submit to him information about a concrete individual case. Under Article 14, once the investigation is completed, the Ombudsman may, if a breach of human rights and liberties has been found, present his opinion to the authority conducting the proceedings. The Ombudsman's actions must be compatible with the principle of the independence of the judiciary. He may also inform a superior authority of his findings and request that appropriate measures provided for by law be taken in respect of the person whose actions amounted to a violation of human rights.
33. At the relevant time the situation of persons detained on remand was governed by the Code of Execution of Criminal Sentences of 19 April 1969. Under Article 89 of that Code, all correspondence of a person detained on remand was subject to censorship, unless a prosecutor and a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee’s correspondence.
34. The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules on Detention on Remand, adopted in 1989. They provided that the correspondence of persons detained on remand was subject to censorship by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.
35. On 6 July 1997 a new Code of Execution of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that the convicted persons are entitled to uncensored correspondence with the State authorities and with the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners’ correspondence in such cases shall be dispatched with no delay and is not subject to censorship.
36. Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be at least equal with those of persons convicted by a final judgment.
37. Article 3 of the Ordinance, which was later repealed, provided that the President of the Regional Court carried out supervision over administrative aspects of the administration of justice by district courts within the jurisdiction of the Regional Court, whereas Article 4 provided that the President of the Court of Appeal carried out supervision over administrative aspects of the administration of justice by regional courts within the jurisdiction of the Court of Appeal.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-88421
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NAYLOR v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Frank Naylor, is a British national who was born in 1942 and lives in Skelmersdale. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 2 July 1995. His claim for widows’ benefits was made on 14 September 2000 and was rejected on 18 September 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 2 October 2000 the applicant made a request for reconsideration and on 31 October 2000 the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-73193
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: JANATA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Pavel Janata, is a Slovakian national who was born in 1970 and lives in Prague. He is represented before the Court by Mr J. Buzalka, a lawyer practising in Prague.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 June 1976 the former Prague 1 National Council (místní národní výbor) assigned a two-room flat to Mr X and his wife, Ms Y, in a State owned apartment house.
On 23 April 1990 the Prague 1 Housing Association (bytový podnik) brought proceedings against Mr X and a certain Ms Z before the Prague 1 District Court (obvodní soud) asking that their tenancy be terminated and that Mr X and Ms Z be ordered to leave the flat. It alleged that the tenants had failed to pay the rent for more than three months.
By a judgment of 20 September 1990, the District Court terminated the tenancy of Mr X and Ms Z, and ordered them to leave the flat within 15 days of the allocation of a substitute flat by the competent national council. The judgment was served on the parties at the end of 1990. On 14 May 1992 it became final.
On 11 February 1991 Mr X commenced divorce proceedings against Ms Y. The judgment declaring the divorce was notified to the latter at her new address in May 1991. The judgment of 20 September 1990 was served on her in March 1992.
In April 1993 the applicant became the owner of the apartment.
On 22 February 1994 he introduced a civil action in the District Court, seeking a declaration that the eviction of Mr X should not be conditional on the allocation of alternative accommodation. The applicant claimed that the former tenant had not paid the rent and maintenance contributions for seven months. He submitted that the flat had been assigned to Mr X and his wife, Ms Y, on 2 June 1976 and that after their divorce, Ms Y had been provided with a substitute flat, Mr X having continued to occupy the common flat. The applicant further submitted that the District Court had terminated the tenancy of Mr X and his wife, and had ordered them to leave the flat within 15 days of the allocation of a substitute flat by the competent national council.
On 27 June 1995 the District Court dismissed the applicant’s action finding, inter alia, that the fact that Mr X owed rent for over three months, or that he had caused disorder in the house, did not substantiate the applicant’s argument that the circumstances, on which the original judgment of 20 September 1990 had been based, had changed, thereby justifying its modification.
On 14 August 1996 the Prague Municipal Court (městský soud) quashed the first instance judgment, finding that the former tenant’s continued unlawful behaviour, which had constituted the reason for the termination of the tenancy, had to be considered as an alteration of the circumstances (změna poměrů) on which the District Court had originally based its judgment of 20 September 1990. It ordered the District Court to clarify the circumstances in which Mr X had defaulted on the payment of his rent.
On 19 June 1997 the District Court again dismissed the applicant’s action on the ground that the applicant had not proved that Mr X had violated his tenancy obligations. It further held that the amount of rent which the applicant had asked Mr X to pay was contrary to the national law.
On 8 January 1998 the Municipal Court upheld the District Court’s judgment applying, inter alia, section III(6) of Act no. 519/1991 which amended the Code of Civil Procedure. The court modified, however, the reasons for the decision. It held that the judgment of 20 September 1990 had not become final and could not, therefore, be modified upon the applicant’s request. It found that the eviction order had not been directed against the same persons, to whom the flat had originally been allocated in 1976. It further found that Ms Y had not been a party to the 1990 proceedings, and the fact that the 1990 judgment had been notified to her in March 1992 was irrelevant.
On 31 January 2000 the Prague High Court (Vrchní soud) dismissed the applicant’s appeal on points of law (dovolání). The court, considering that the judgment of the Municipal Court was a decision which had modified the first instance judgment, applied section 238(1)(a) and section 241(3)(d) of the Code of Civil Procedure (see “Relevant domestic law”, below). It shared the Municipal Court’s opinion that, if the original decision ordering the tenant’s eviction upon the allocation of a substitute flat had not become final, the applicant could not evict him without alternative accommodation being provided. The court added that the relevant judgment had clearly referred to Ms Z and not Ms Y, and that this had not been rectified, at least under section 164 of the Code of Civil Procedure.
On 31 August 2000 the Constitutional Court (Ústavní soud) dismissed as being manifestly ill-founded the applicant’s constitutional appeal (ústavní stížnost), in which the applicant had alleged a violation of Articles 36 §§ 1 and Article 38 § 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), as well as Article 6 § 1 of the Convention.
Section 159(1) and (3) provides that a judgment, which has been duly served and which can no longer be appealed, becomes final. Once a case has been adjudicated and the decision has become final, it may not be reconsidered.
Pursuant to section 164(1), the president of a chamber may rectify anytime and, if necessary ex officio, clerical errors or any other evident incorrectness in a judgment.
Under section 238(1)(a), an appeal on points of law is admissible against a judgment of an appellate court, whereby the first instance judgment was modified.
Pursuant to section 241(3)(d), an appeal on points of law may be filed on the ground that a decision was based on the incorrect legal consideration of the matter.
Section III, containing the concluding and interim provisions, provides in its sixth sub-section that final judgments ordering an eviction from an apartment which were adopted before the entry into force of this Act, and which made the eviction conditional on the allocation of a substitute flat or other accommodation, retain their conditional nature. The beneficiary may nevertheless request a court, which is competent to execute the judgment, to modify that order and declare that the party leaving the flat should only be provided with substitute accommodation rather than a flat, or that no alternative housing need be allocated at all.
Article 36 § 1 provides that everyone may assert his or her rights before an independent and impartial court of justice or, in specified cases, before another authority.
Under Article 38 § 2, everyone is entitled to have his or her case considered in public without unnecessary delay, in his or her presence, and to express his or her opinion on all the submitted evidence. The public may be excluded only in those cases specified by law.


ITEMID: 001-67580
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MYKHAYLENKY AND OTHERS v. UKRAINE
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (non-exhaustion of domestic remedies, ratione personae);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. Ms Valentyna Mykolayivna Mykhaylenko was born in 1951. Mr Valentyn Andriyovych Mykhaylenko was born in 1944. Mr Grygoriy Stanislavovych Ganushevych was born in 1950. Mr Anatoliy Ivanovych Marchenko was born in 1952. Ms Oleksandra Romanivna Yudenok was born in 1948. Mr Vasyl Mykhaylovych Myshko was born in 1945. Mr Vasyl Kindratovych Bezpalko was born in 1958. Ms Galyna Stepanivna Zorenko was born in 1939. Mr Grigoriy Pavlovych Arkhitko was born in 1960. Mr Volodymyr Mykolayovych Litskevich was born in 1956. Mr Mykhaylo Pavlovych Tyshchenko was born in 1949. All the applicants live in Chernigiv, Ukraine.
5. Between 1997 and 2001 the applicants instituted separate sets of proceedings in the local domestic courts, seeking the recovery of salary arrears and other payments from their former employer, the State-owned company Atomspetsbud, which had carried out construction work at Chernobyl within the zone that had been compulsorily evacuated (see paragraphs 29-30 below).
6. By a decision of the Novozavodsky District Court of Chernigiv of 14 April 1998, Ms Valentyna Mykhaylenko was awarded 4,849 hryvnas (UAH) in salary arrears and other payments. She received UAH 173.58 on 7 February 2000 and UAH 76.09 on 17 October 2001. However, the judgment remains largely unenforced, the outstanding debt being UAH 4,599.33 (the equivalent of 707.59 euros (EUR)).
7. By a decision of the Novozavodsky District Court of Chernigiv of 15 December 2000, Mr Valentyn Mykhaylenko was awarded UAH 10,479 in salary arrears. By another decision of the same court on 16 April 2002, he was awarded UAH 2,710 in compensation for the delay in the payment of the salary arrears. The judgments remain unenforced, the total debt amounting to UAH 13,189 (the equivalent of EUR 2,029.08).
8. By a decision of the Novozavodsky District Court of Chernigiv of 13 July 1998, Mr Grygoriy Ganushevych was awarded UAH 7,394 in salary arrears. He received UAH 219.37 on 21 January 2000 and UAH 116.03 on 18 August 2000. However, the judgment remains largely unenforced, the outstanding debt being UAH 7,058.60 (the equivalent of EUR 1,085.94).
9. By a decision of the Novozavodsky District Court of Chernigiv of 11 September 1997, Mr Anatoliy Marchenko was awarded UAH 4,528 in salary arrears. By another decision of the same court on 19 September 2001, he was awarded UAH 9,671.75 in compensation for the delay in payment of those arrears. He received UAH 1,000 on 17 February 1998, UAH 126.29 on 7 February 2000 and UAH 55.27 on 20 October 2000. However, the judgments remain to a large extent unenforced, the outstanding debt being UAH 13,018.19 (the equivalent of EUR 2,002.80).
10. By a decision of the Novozavodsky District Court of Chernigiv of 18 November 1998, Ms Oleksandra Yudenok was awarded UAH 5,664 in salary arrears and UAH 883 in compensation for the delay in their payment. On 7 February 2000 the applicant received UAH 234.37. The judgment remains largely unenforced, the outstanding debt being UAH 6,312.63 (the equivalent of EUR 971.17).
11. By a decision of the Novozavodsky District Court of Chernigiv of 24 March 1999, Mr Vasyl Myshko was awarded UAH 8,130 in salary arrears, but only UAH 418.62 were paid to him. The judgment remains to a large extent unenforced, the outstanding debt being UAH 7,711.38 (the equivalent of EUR 1,186.37).
12. By a decision of the Novozavodsky District Court of Chernigiv of 17 April 2001, Mr Vasyl Bezpalko was awarded UAH 14,764 (the equivalent of EUR 2,271.38) in salary arrears. The judgment remains unenforced.
13. By a decision of the Novozavodsky District Court of Chernigiv on 4 February 1999, Ms Galyna Zorenko was awarded UAH 6,596 in salary arrears. She received UAH 236.12 on 7 February 2000 and UAH 103.51 on 10 November 2000. However, the judgment remains largely unenforced, the outstanding debt being UAH 6,256.37 (the equivalent of EUR 962.52)
14. By a decision of the Novozavodsky District Court of Chernigiv of 1 April 1999, Mr Grygoriy Arkhitko was reinstated in his post and awarded UAH 6,348.62 in salary arrears. He received UAH 226.17 on 7 February 2000 and UAH 99.64 on 18 August 2000. However, the judgment remains to a large extent unenforced, the outstanding debt being UAH 6,022.81 (the equivalent of EUR 926.59).
15. By a decision of the Ivankivsky District Court of the Kiev Region of 10 June 1999, Mr Volodymyr Litskevich was awarded UAH 6,444.45 in salary arrears. He received UAH 61.12 on 16 November 1999, UAH 171.57 on 8 February 2000 and UAH 101.13 on 18 August 2000. However, the judgment remains largely unenforced, the outstanding debt being UAH 6,110.63 (the equivalent of EUR 940.10).
16. By a decision of the Novozavodsky District Court of Chernigiv of 16 October 2001, Mr Mykhaylo Tyshchenko was awarded UAH 8,340 (the equivalent of EUR 1,283.08) in salary arrears. The judgment remains unenforced.
17. By a letter of 17 June 1999, the Ministry of Energy informed Mr Grygoriy Ganushevych that the delay in the payment of salary arrears was due to the debtor company’s difficult economic situation, caused by the failure of third parties to pay their debts to the company. According to the Ministry, the company’s situation required a solution at State level.
18. By a letter of 5 May 2001, the same Ministry informed Mr Grygoriy Ganushevych that, despite its efforts, the debtor company’s economic situation had not improved. The Ministry mentioned that the Ministry for Emergencies and the Protection of the Population from the Consequences of the Chernobyl Catastrophe (“the Ministry for Emergencies”) was Atomspetsbud’s largest debtor. The Ministry informed the applicant that the company’s management had asked it to decide on the expediency of the company’s continued existence.
19. At the end of 2001 the sixth, seventh and ninth applicants instituted separate proceedings in the Pechersky District Court of Kiev against the Ukrainian President, the Ukrainian Cabinet of Ministers, the Ministry of Energy and the Ministry of Justice, seeking compensation for the pecuniary and non-pecuniary damage caused by the non-enforcement of the judicial decisions in their favour. In three separate decisions of 29 January 2002, that court found against the applicants, stating that, in the event of non-enforcement, the applicants had the option of lodging the appropriate claims for damages against the State Bailiffs’ Service, rather than the above defendants, whose responsibility for the non-enforcement had not been proved by the claimants. The applicants did not appeal against those decisions under the ordinary appeal procedure or on points of law.
20. In their joint letter of 31 October 2002 to the Ukrainian Prime Minister, all the applicants gave notice that they had lodged applications with the European Court of Human Rights and proposed a friendly settlement of the matter. They requested full enforcement of the decisions and compensation for damage ranging from UAH 20,000 to 50,000 each.
21. In reply, the Agent of the Government informed the applicants that friendly-settlement proceedings could only be started following the Court’s admissibility decision. She further informed the applicants of the large number of writs of execution pending against the debtor company, amounting to UAH 3,849,312. However, enforcement of the judgments through the seizure of property required special authorisation from the Ministry for Emergencies, since the debtor company’s property was located within the Chernobyl area, which was contaminated by radiation. No such authorisation was granted.
22. By an order of the Ministry of Energy dated 27 June 2002, the debtor company was liquidated and a liquidation commission established.
23. As a result, between 7 October 2002 and 9 July 2003 the State Bailiffs’ Service terminated the enforcement proceedings in the applicants’ cases and all the writs of execution were forwarded to the liquidation commission as creditors’ claims. The liquidation proceedings are still pending.
24. The relevant part of the Ukrainian Constitution provides:
“... Judicial decisions are adopted by the courts in the name of Ukraine and are mandatory for execution throughout the entire territory of Ukraine.”
25. The relevant provisions of the Civil Code provided:
“A legal entity shall be liable for its obligations to the extent of the property owned by it (attached to it), unless legislation provides otherwise.
The founder of the legal entity or the owner of its property shall not be liable for its obligations, and the legal entity shall not be liable for the obligations of its owner or founder unless legislation or the legal entity’s statutory documents provide otherwise.
A legal entity which is financed by the owner and which has property attached to it with the right to operational control ... shall be liable for its obligations to the extent of the funds in its possession. In the event of a lack of funds, the owner of the property shall be liable for the entity’s obligations.”
“The State shall not be liable for the obligations of State organisations which possess legal personality, and those organisations shall not be liable for the obligations of the State.
The conditions and procedure for providing funds to cover the debts of institutions and other State organisations which are funded by the State budget, if such debts cannot be covered by their own budget, shall be established by the legislation of the USSR and the Ukrainian SSR.”
“The liquidation of State organisations which possess legal personality shall be conducted by the body which created them.”
26. The relevant Articles of the new Civil Code provide:
“...
2. Legal entities shall be divided into private-law legal entities and public-law legal entities, depending on the procedure for their creation.
A private-law legal entity shall be established on the basis of statutory documents, in accordance with Article 87 of this Code.
Public-law legal entities shall be established by a decision of the President of Ukraine, a duly authorised State body, a duly authorised body of the Autonomous Republic of Crimea or a body of local self-government.
3. This Code provides for a procedure to establish the organisational and legal forms and legal status of private-law entities.
The procedure for the creation and legal status of public-law entities shall be laid down by the Constitution of Ukraine and the law.”
“1. A legal entity shall be liable for its own obligations.
2. A legal entity shall be liable for its obligations to the extent of all of its property.
3. The participant (founder) of a legal entity shall not be liable for the obligations of that entity, and the legal entity shall not be liable for the obligations of its participant (founder), unless the statutory documents or legislation provide otherwise ...”
“1. In civil-law relations, the State shall act on an equal basis with other participants in such relations.
2. The State may create public-law legal entities (State companies, educational institutions, etc.) in the circumstances and under the procedure established by law.
3. The State may create private-law legal entities (entrepreneurial associations, etc.) to participate in its activities ... unless the law stipulates otherwise.”
“1. The State ... shall not be liable for the obligations of the legal entities established by it, unless the law provides otherwise.
2. Legal entities established by the State ... shall not be liable for the obligations of the State ...”
27. The relevant sections of the Act provided:
“Companies of the following type may operate in Ukraine:
...
– State-owned companies [derzhavne pidpryemstvo][], founded on State property, which may include a public company [kazenne pidpryemstvo][]
...”
“...
(3) Property which is owned by the State and attached to a State-owned company (with the exception of a public company) shall belong to that company, which shall have the right to full economic control over it.
In exercising its right to full economic control, a State-owned company shall own, use and dispose of the above property at its discretion, performing any actions in relation to it which are not contrary to the legislation in force or to the company’s statutes.
Property owned by the State and attached to a public company shall belong to that company, with the right of operational control.
In exercising its right to operational control, the public company shall possess and use the above property.
A public company may dispose of property in its capital fund which is State-owned and has been given to the company with the right to operational control only with the permission of the body authorised to manage the relevant State property. The arrangements for the disposal of the public company’s other property shall be defined in its statute.”
“(1) A State-owned company that is not subject to privatisation under Ukrainian legislation may be transformed into a public company by a decision of the Cabinet of Ministers of Ukraine.
(2) The decision to transform a State-owned company into a public company shall be taken subject to one of the following conditions:
– the company carries out manufacturing or other activities which, under the legislation, may be performed only by a State-owned company;
– the State is the principal consumer of the company’s production (more than 50%);
– the company is subject to natural monopolies.
(3) The liquidation and reorganisation of the public company shall take place on the basis of a decision of the Cabinet of Ministers of Ukraine in accordance with the legislation of Ukraine.”
“...
(3) The public company shall be liable for its obligations through its funds and the other property which it possesses, except for capital assets. Should such funds and property be insufficient, its owner shall be liable for its obligations.”
28. Section 6 of this Law provides that the Cabinet of Ministers of Ukraine shall determine the planning, material and technical maintenance, the scope of financial contributions and the salaries of employees of all companies involved in work on eliminating the consequences of the Chernobyl catastrophe, regardless of those companies’ status and ownership.
29. Section 12 of the Law prohibits the withdrawal of construction materials, equipment and other property from the alienation zone and zone of compulsory evacuation without special permission from the Ministry for Emergencies. It also requires that ministry’s permission to carry out any economic activity, including construction, in the zone.
30. Under section 2 of this Act, the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under section 85 of the Act, a creditor may lodge a complaint in respect of actions or omissions by the State Bailiffs’ Service with the head of the department with responsibility for that service or with a local court. Section 86 of the Act entitles the creditor to institute court proceedings against a legal person entrusted with the enforcement of a judgment, for inadequate enforcement or non-enforcement of a judgment through fault, and to receive compensation.
31. Section 11 of the Act provides for the liability of bailiffs for any inadequate performance of their duties and compensation for damage caused by a bailiff when enforcing a judgment. Under section 13 of the Act, the bailiff’s acts and omissions may be challenged before a superior official or the courts.
32. The decree provides that ministries and other executive bodies are authorised to adopt decisions concerning the creation, reorganisation and liquidation of companies, institutions and organisations founded on State property. The decree further provides that the ministries shall not interfere directly in the activities of State-owned companies.
33. The decree provides for the transfer of a number of companies, including the State Construction and Commerce Company Atomspetsbud, to the management of the Ministry of Energy on account of changes in the government’s structure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61287
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF KRASZEWSKI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1955 and lives in Pino Torinese (Turin).
5. The applicant is the owner of a flat in Turin, which he had let to V.D.F.
6. In a registered letter of 10 February 1992, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 August 1992 and asked him to vacate the premises by that date.
7. In a writ served on the tenant on 27 May 1992, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Turin Magistrate.
8. By a decision of 26 June 1992, which was made enforceable on the same day, the Turin Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 August 1993.
9. On 29 September 1993, the applicant served notice on the tenant requiring him to vacate the premises.
10. On 26 October 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 7 December 1993.
11. Between 7 December 1993 and 7 October 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
12. Pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 14 June 2000.
13. On 14 June 2000, the applicant recovered possession of the flat.
14. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
A. The system of control of the rents
15. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
16. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
17. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
18. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.

Obligations of the tenant in the case of late restitution
19. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
20. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
21. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
22. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.

VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108784
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FERARU v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1974 and lives in Migieşti.
6. The applicant is a tradesman specialised in installing roof drainage systems. In May – June 2008 he accepted money from four different people in exchange for installing drainage systems in their houses. However, he failed to carry out the required work and declared that he no longer had the money, promising to return it later.
7. In the early morning of 29 September 2008 he was arrested by the police and brought to Râşcani Police Station in Chişinău, on the grounds of having committed the administrative offence of insulting a police officer. He was allegedly forced to return the money which he had taken from B. I. for installing a roof drainage system on his house. According to the applicant, he had not managed to finish the work on that installation when B. I. asked for the money to be returned and also involved his relatives who worked at Râşcani Police Station in order to intimidate the applicant and obtain full repayment.
8. On 1 October 2008 B. I. made a complaint to the police, according to which the applicant had defrauded him by accepting money and refusing to return it, while having failed to carry out any work. On 4 October 2008 a criminal investigation against the applicant was initiated.
9. On an unspecified date one of the applicant’s relatives paid 500 euros (EUR) to B. I., who signed a statement to the effect that he no longer had any claims against the applicant.
10. On 6 October 2008 the prosecutor asked the Râşcani District Court to order the applicant’s detention for ten days. The applicant was accused of defrauding B. I. by accepting 8,000 Moldovan lei (approximately EUR 560 at the time) in May 2008 as payment for installing a roof drainage system, but failing to carry out any work. He was also accused of two similar offences, but no details other than the case numbers were given. Details were given at subsequent court hearings. A hearing was scheduled for the same day at the Râşcani District Court.
11. The applicant’s lawyer was not able to read the prosecutor’s request until immediately before the hearing and was not given a copy at that time. He did not see any other documents being submitted to the investigating judge to substantiate the prosecutor’s request and no documents were shown to the defence or discussed by the investigating judge at the hearing.
12. During the hearing of 6 October 2008 the lawyer informed the court of the payment of EUR 500 to B. I. The prosecutor present at the hearing declared that there was no evidence of any repayment of the monies to B. I. The lawyer then asked that B. I. be heard in order to confirm that payment. The court did not take any formal decision in respect of B. I. and the latter was not heard before the court adopted its decision. During the same hearing, the applicant submitted that he had been arrested on 29 September 2008. The prosecutor confirmed that, stating that the applicant had been arrested on an administrative charge and then arrested again as a suspect in the criminal proceedings. The applicant’s lawyer argued that since his client was suspected of having committed a crime, he should have been arrested in accordance with the criminal procedure. The court did not react in any way to this argument, confining its reasoning to the applicant’s detention after 4 October 2008.
13. In his decision of 6 October 2008 the investigating judge of the Râşcani District Court granted the prosecutor’s request and ordered the applicant’s detention pending trial for ten days. The reasons given were that:
“the act of which [the applicant] is accused is considered a minor crime, which is a legitimate ground for detention pending trial; the character, degree of harm and circumstances of the crime constitute sufficient grounds for supposing that [the applicant] will interfere with the normal course of the investigation; the materials submitted to the court clearly confirm that there is a reasonable suspicion that [the applicant] committed a minor crime, and there are sufficient grounds to prevent [the applicant] from hindering the establishment of the truth and from absconding from the investigating authority; the materials in the file confirm the reasonable suspicion that [the applicant] might reoffend, as it follows from the information obtained by the investigating authority during the operational phase of the investigation that [the applicant] may have committed other similar offences; ... [the applicant] has no stable income and works periodically, there is no information about his financial status and his state of health is not incompatible with detention; [the applicant] and his lawyer did not submit any evidence in support of their statements; ...”
14. The applicant’s lawyer appealed, complaining of the applicant’s de facto arrest on 29 September 2008 and his detention thereafter, and of the lack of legal assistance available to the applicant until 6 October 2008. He submitted that the lower court had not dealt with that complaint. He also informed the court of the fact that he had only read the prosecutor’s request at the hearing of 6 October 2008 and had not had time to properly prepare for that hearing. Besides the prosecutor’s request, no other document had been submitted to the court or shown to the defence to substantiate the need for the applicant’s detention. Nor had the prosecutor referred to any additional documents or other evidence during the hearing. The applicant had asked the first-instance court to hear a witness, who could have confirmed that the applicant had had a contract with B. I. and that B. I.’s relatives in the police had threatened the applicant if he refused to return the money for the ongoing work, but the court had refused to hear the witness without giving any reasons. Moreover, the judge had relied on grounds which had not been mentioned by the prosecutor, thus showing bias towards the prosecution. The lawyer relied on Article 5 of the Convention and referred to the absence of any evidence to support the prosecutor’s request for the applicant’s detention pending trial, including the absence of any judgment or other evidence concerning the other similar offences allegedly committed by his client. In the lawyer’s opinion, there had been no reason to believe that the applicant would abscond or interfere with the investigation. Relying on Article 3 of the Convention, the lawyer also complained of the inhuman conditions of his client’s detention.
15. On 10 October 2008 the Chişinău Court of Appeal rejected the appeal as unfounded, referring to similar grounds as those referred to by the lower court, including that the applicant had allegedly committed other similar offences “as [could] be seen from the criminal file”.
16. On 13 October 2008 the prosecutor asked for an extension of the applicant’s detention pending trial for thirty days. He referred to three separate occasions on which the applicant had been accused of having accepted money for installing roof drainage systems but had failed to do so, including in respect of B. I.
17. On the same day the investigating judge of the Râşcani District Court granted the request and ordered the applicant’s detention pending trial for thirty days. The court noted that
“... a serious crime has been committed for which the law provides a penalty of more than two years’ imprisonment; there has been no compensation for the pecuniary damage caused; there are reasons to believe that [the applicant] could abscond or interfere with the normal and objective course of the investigation; the grounds on which the initial detention was ordered remain valid.”
18. The applicant’s lawyer appealed, relying on the same grounds as in his previous appeal. He added that his client had told the lower court that he owed no debt to B. I., whom he had reimbursed fully. Moreover, the lawyer had read the prosecutor’s request only immediately before the hearing of 13 October 2008. No documents other than the prosecutor’s request had been examined by the court during the hearing or shown to the defence. The lawyer added that the applicant had a stable home life, had two children to support and had not been previously convicted of any offence. He again complained of his client’s inhuman conditions of detention, both at the Râşcani Police Station and at the General Police Department (“the GPD”, see paragraph 22 below), and relied on Article 3 of the Convention in that regard.
19. On 21 October 2008 the Chişinău Court of Appeal rejected the appeal, relying on the same grounds as those referred to by the lower court.
20. On 11 November 2008 the Râşcani District Court ordered the applicant’s release. The court found that
“... [the applicant] is accused of having committed a crime for which the law provides punishment [through] alternatives [to imprisonment]; he did not abscond from the investigating authority; he has a permanent residence and two children.”
21. On 8 May 2009 the Râşcani District Court found the applicant guilty of fraud and sentenced him to three years’ imprisonment, suspended for one year. In his submissions to the court the applicant acknowledged having taken money from B. I. in May 2008. After a while, he had manufactured the relevant items but had not been able to install them because of personal family circumstances obliging him to remain home with his children. The court found that he had taken money from three other people in May – July 2008 and had also failed to carry out the work which he had undertaken to do for them.
22. According to the Government, the applicant had been detained for one night at the Râşcani Police Station on 29 September 2008 and had then been transferred to the General Police Department (Comisariatul General de Poliţie or “the GPD”), where he had been detained until 11 November 2008.
23. The applicant described his conditions of detention at the Râşcani Police Station as follows: he had been held in a cell without a bed or any other furniture; there had been no ventilation, toilet or running water in the cell; he had not been given any food and had had to beg for it from other detainees; the cell had been overcrowded and many detainees had smoked, exposing the applicant to passive smoking; and the cell had been damp.
24. According to the applicant, at the GPD he had been placed together with seven other people in a cell measuring 12 square metres. The cell had been dirty and infested with parasitic insects and rats. There had been no furniture in the cell, and the detainees had slept directly on the floor, in their own clothes. The cell had been damp and very cold. A low-intensity lamp, covered by a metal sheet, had been switched on twenty-four hours a day and there had not been a window in the cell. The toilet had not been separated from the rest of the cell, offering no privacy. Due to the large number of people using it, the toilet had been occupied most of the time and had smelt bad. The applicant had not been given any personal hygiene items, clean clothes or bed linen. He had had to continually wear the clothes in which he had been arrested. The applicant had received little food, which had been of a very bad quality (a cup of warm water in the morning and evening and boiled vegetables with warm water for lunch). Even though he had had a stomach ulcer and high intracranial blood pressure, he had not received any medical assistance. He had been detained in such conditions for twenty-four hours a day, without any right to take exercise or to take part in recreational activities.
25. The relevant provisions of domestic law have been set out in Ostrovar v. Moldova (no. 35207/03, 13 September 2005), Sarban v. Moldova (no. 3456/05, 4 October 2005), Becciev v. Moldova (no. 9190/03, 4 October 2005), and other similar cases in respect of Moldova.
26. The Government submitted a list of laws, regulations, Ministry orders and other acts or bills yet to be enacted which are aimed at improving various aspects of prison conditions and the medical treatment of detainees.
27. The Government annexed to their observations copies of judgments in the cases of Drugaliov v. the Ministry of Internal Affairs and the Ministry of Finance; Gristiuc v. the Ministry of Finance and the Penitentiaries’ Department; Ipate v. the Penitentiaries’ Department; and Ciorap v. the Ministry of Finance, the Ministry of Internal Affairs and the Prosecutor General’s Office, all cases in which the applicants had been awarded compensation for ill-treatment and/or inhuman conditions of detention.
28. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“A. Institutions of the Ministry of Internal Affairs
In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.
[...]
9. Persons placed on remand should as a rule be detained in prisons under the authority of the Ministry of Justice. However, such persons may continue to be held in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) under the authority of the Ministry of Internal Affairs, if this is required for the purposes of the criminal investigation or if the transfer to a pre-trial establishment cannot be effected promptly. It is also possible for remand prisoners to be transferred back from prison to an IDP when necessary for the purposes of the investigation or the court proceedings, for periods of up to 10 days at a time.
At the time of the 2007 visit, the delegation noted that the average length of stay in IDPs of persons remanded in custody had decreased. For example, at the IDP of the General Police Directorate in Chişinău, the majority of persons who had been remanded in custody were being transferred to Prison No. 13 within a week. This is a welcome development. Nevertheless, the delegation also gathered evidence of persons remanded in custody spending extended periods of time in IDPs (e.g. uninterrupted stays of up to 70 days at Anenii Noi; up to 40 days at the Operational Services Department in Chişinău). As regards the practice of repeated transfers of remand prisoners between prisons and IDPs, it continued unabated.
As stressed by the CPT in the past, IDPs will never be capable of providing conditions of detention suited for holding persons remanded in custody. The Moldovan authorities are well aware of the limitations of the existing IDPs and, following a decision to transfer the responsibility for these facilities to the Ministry of Justice by the beginning of 2008, have been exploring the possibility of constructing eight new remand prisons in different regions of the country. During the 2007 visit, the delegation was informed that this project was still at the conception phase, due to the lack of budgetary resources. The Ministry of Justice was approaching various donors, banks and the public sector in the hope of raising the necessary funding (estimated at approximately 3 mln USD per remand prison).
The CPT calls upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. The objective should be to end completely the practice of holding remand prisoners in police establishments. The return of remand prisoners to police facilities, for whatever purpose, should be sought and authorised only when there is absolutely no other alternative, and for the shortest time possible.
[...]
11. In previous visit reports, the CPT recommended that administrative arrest be no longer exploited by operational police officers to detain and question persons suspected of criminal offences, without their being offered the safeguards inherent in the criminal procedure. Nevertheless, during the 2007 visit, the delegation came across a number of persons who were officially being held in IDPs for having committed administrative offences (e.g. at the Operational Services Department and the General Police Directorate in Chişinău), but were in fact being questioned as criminal suspects, apparently without being allowed to contact a lawyer. Resolute steps should be taken to stamp out this abusive practice, which amounts to circumventing the legal provisions concerning the length of police custody in respect of criminal suspects. The CPT reiterates its previous recommendation that firm instructions be issued to law enforcement officials that persons suspected of criminal offences are to be held and questioned strictly in accordance with the provisions of the Code of Criminal Procedure. The Committee also calls upon the Moldovan authorities to ensure that compliance with this requirement is closely supervised.
[...]
4. Conditions of detention
a. temporary detention facilities (IDPs)
34. Following the CPT’s visit in 2004, the Moldovan authorities launched a programme for improving material conditions in IDPs, with a view to implementing the Committee’s recommendations. However, it became clear from the discussions held with Ministry of Internal Affairs officials at the outset of the 2007 visit that the programme had not progressed as rapidly as envisaged, due to the lack of funding. At one of the establishments visited, the IDP in Străşeni, the refurbishment had been suspended, and it was unclear when the works would be finished. That said, the delegation was pleased to note that the cells’ envisaged occupancy levels once the refurbishment had been completed would be in accordance with the CPT’s standards (i.e. cells measuring some 12 m² would hold two persons each), and that the in-cell toilets would be partitioned off.
35. Despite the above-mentioned programme, conditions of detention in the IDPs visited remained, in general, very poor. The cells had either no windows (e.g. at the IDP of the Operational Services Department in Chişinău, some of the cells at Călăraşi IDP, one cell at Anenii Noi IDP) or their windows were covered by shutters which substantially limited access to natural light. As for artificial lighting, it was, as a rule, dim. Particular mention should be made of one cell at Anenii Noi, in which there was no electric bulb; staff had reportedly told the detainee that he should provide a new bulb himself. Further, the cells were often stuffy, despite the presence of a ventilation system (which was rarely turned on because of the noise it made). Detainees slept on wooden platforms, which took up most of the floor space; no steps had been taken in respect of providing mattresses and blankets (the presence of an occasional blanket was attributable to detainees’ families). The only exception was the IDP in Călăraşi, where most of the cells were fitted with bunk beds with mattresses.
At the time of the visit, the number of persons held at the IDPs was well below their official capacity. Nevertheless, overcrowding was observed in some of the cells (e.g. three persons in a cell measuring 7 m² at Leova). Further, the delegation came across several cells which were very small (4 m² at Leova; 5.5 m² at Anenii Noi). Cells of such a size are only suitable for short periods of detention.
36. The arrangements in respect of food varied from one establishment to another: at the two IDPs in Chişinău, three meals a day were being provided, whereas in Leova, the number of daily meals was two, and at Călăraşi and Anenii Noi, only one. The delegation received numerous complaints about the insufficient quantity and poor quality of the food. It was clear that most detainees relied primarily on food parcels delivered by their families.
37. On a more positive note, all the IDPs visited possessed exercise yards. Detainees were in principle entitled to one hour of outdoor exercise a day. However, at the IDPs in Călăraşi and the General Police Directorate in Chişinău, the delegation heard widespread allegations that the outdoor exercise periods were limited to 5 to 15 minutes, and did not take place every day. Apart from outdoor exercise, there were no activities (e.g. access to books, newspapers, radio, board games).
38. To sum up, the conditions prevailing at the IDPs visited continue to render them unsuitable for accommodating persons deprived of their liberty for prolonged periods of time (which continues to be case of both persons remanded in custody and administrative detainees). Reference has already been made in paragraph 9 to the envisaged transfer of responsibility for IDPs to the Ministry of Justice and the setting up new remand prisons, which should correspond to the requirements of Moldovan legislation and the CPT’s standards. In the meantime, the Moldovan authorities should redouble their efforts to find the financial means necessary for providing for the fundamental needs and preserving the dignity of detained persons. In particular, urgent steps should be taken to ensure that:
- all detained persons are provided with a clean mattress and blankets;
- detained persons receive food of sufficient quantity and improved quality;
- in-cell lighting (including access to natural light) and ventilation are adequate;
- there is a minimum of 4 m² per person in multi-occupancy cells;
- detained persons have ready access to communal toilet facilities, and in-cell toilets are equipped with a partition;
- detained persons are ensured access to washing facilities and are supplied with essential personal hygiene products;
- all detained persons have access to outdoor exercise of at least one hour per day.
The CPT also recommends that steps be taken to provide some form of activity in addition to outdoor exercise to persons held in excess of a few days at IDPs.”
“10. During the 2009 visit, the delegation observed that the practice of holding remand prisoners in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) continued unabated. In the report on the 2007 visit, the CPT called upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. In response, the Ministry of Internal Affairs indicated that it was in favour of a temporary transfer of responsibility for IDPs to the Ministry of Justice, pending the building of pre-trial establishments under the latter Ministry’s authority. However, at the end of the 2009 visit, the Minister of Justice indicated that the responsibility for the IDPs could not be taken over by his Ministry because conditions of detention in these facilities were substandard.
The CPT shares the view that IDPs do not offer suitable conditions for holding persons remanded in custody. The Committee would nevertheless like to stress that, in the interests of the prevention of ill-treatment, the sooner a criminal suspect passes into the hands of a custodial authority which is functionally and institutionally separate from the police, the better. The delegation’s findings from the 2009 visit support that; most cases of alleged police ill-treatment in the context of the April events had emerged only after the persons concerned had been transferred to an establishment under the Ministry of Justice or released. The CPT recommends that, pending the building of new pre-trial establishments, the Moldovan authorities take steps to transfer the responsibility for IDPs to the Ministry of Justice. Further, the Committee would like to receive up-to-date information on progress made to build new pre-trial establishments under the Ministry of Justice.
11. The legal framework for deprivation of liberty of administrative detainees is provided by a new Contravention Code, which entered into force after the April events, on 31 May 2009, and replaced the 1985 Code of Administrative Offences. According to the new legal provisions, the persons concerned may be sentenced to up to 15 days of deprivation of liberty, a period which may be extended to 30 days if they have committed more than one offence.
In the past, the CPT repeatedly recommended that detention for administrative offences no longer be exploited by operational police officers in order to detain and question persons suspected of criminal offences, without their being offered the safeguards inherent in the criminal procedure. The delegation’s findings from the 2009 visit suggest that such abusive practices were widespread in the context of the April events. The CPT is therefore pleased to note that the new Contravention Code restricts the powers of the police to hold persons, on their own authority, for more than three hours. However, the delegation heard some recent allegations from detained persons that proceedings under the Contravention Code (for insulting law enforcement officials, for instance) had been initiated against them after they had refused to confess to a criminal offence, despite their correct behaviour vis-à-vis the police, and that their objections had little weight before prosecutors and judges. The lack of access to a lawyer in practice, at this stage of the procedure, had exacerbated this situation. The CPT recommends that prosecutors and judges be encouraged to be particularly vigilant as to the possible exploitation by the police of the provisions of the Contravention Code to circumvent the length of police custody in respect of criminal suspects. Reference is also made to paragraph 34 as regards access to a lawyer.
According to the Enforcement Code, persons under administrative arrest by virtue of the Contravention Code should be detained, as a minimum, in conditions provided for sentenced prisoners placed under an “initial” regime in penitentiary establishments. That said, it appeared during the 2009 visit that a number of persons under arrest continued to serve their administrative sentences in police establishments, which certainly do not offer such conditions. The CPT recommends that the Moldovan authorities take all the necessary measures to ensure that persons under administrative arrest serve their sentences in penitentiary establishments.
[...]
36. The CPT notes with satisfaction that the cells of the IDP of the General Police Directorate in Chişinău had been fitted with beds and that some repair works had been carried out a few months before the visit. However, the conditions prevailing in this facility were still not suitable for the prolonged periods for which remand prisoners and administrative detainees were being held in it: high official occupancy levels in the cells (e.g. 4 places in a 10 m² cell), poor in-cell lighting, access to outdoor exercise limited to some 15 minutes. The CPT recommends that these shortcomings be remedied (see also the recommendations made in paragraphs 10 and 11).”
29. The relevant findings of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Human Rights Council, 10th session, Report on the special rapporteur’s mission to Moldova, document A/HRC/10/44/Add.3, 12 February 2009) read as follows:
“Police custody
38. Despite international and national minimum standards, conditions in some police custody facilities are a source of major concern. Whereas some police stations were suitable at maximum for short-term police custody, in some cases, notably in Bălţi, Comrat, and at Chişinău police headquarters, the conditions amounted to inhuman treatment. In those police stations, persons were held in small, badly ventilated cells with little or no daylight sometimes for several weeks or even months. However, according to official sources, some of the police custody facilities had been closed in order to improve conditions (Criuleni, Ialoveni, Straseni, Cantemir, Glodeni, Stefan-Vodă, Edinet, Donduseni, Ciadâr-Lunga).
39. Notwithstanding some measures taken by the Government, many persons in police custody complained about the quality and quantity of the food, although some said that it had slightly improved. Detainees in some police stations (e.g. Comrat) indicated that they received food only once per day. Lack of access to medical care was another major concern. Some of the cells were not equipped with mattresses and persons in police custody were not given blankets to sleep on.
40. The Special Rapporteur received consistent allegations that the minimum time required by national law for exercise (one hour per day) is not respected in many cases. At several police stations, detainees indicated that they are allowed to walk only for about 15 minutes per day. This is exacerbated by the fact that some spend long periods of up to several months in police custody. The one shower per week requirement is not always respected. Moreover, the toilet in the cells consists normally of a bucket or an open toilet without flush, at best separated by one meter high walls. Since often more than one person is detained in a cell, these sanitary facilities deprive the detainees of their privacy. Furthermore, this situation generates not only an unpleasant smell, but also a critical hygienic situation.”
In their reply to the above-quoted report, the Moldovan authorities acknowledged the seriousness of the problem of ensuring appropriate conditions of detention in Moldova and stated that most of the necessary legislative measures had already been taken. The lack of financing for implementing the measures decided upon was the single most serious impediment to solving the problem.
30. The relevant findings of the United Nations Committee Against Torture, adopted at its 43rd session on 2-20 November 2009 (document CAT/C/MDA/CO/2) read as follows:
“Conditions of detention
18. The Committee welcomes the amendment in December 2008 of the Criminal Code, which reduced minimum and maximum penalties, prompted a general review of penalties and reoffending, and provided for alternatives to detention, thus contributing to the reduction in the total number of prison population in the State party. The Committee also welcomes reconstruction, repairs and maintenance work carried out in a number of penitentiary institutions starting from 2007. Despite the State party’s efforts to improve the conditions of detention, the Committee remains concerned at overcrowding in certain facilities and that conditions remain harsh, with insufficient ventilation and lighting, poor sanitation and hygiene facilities and inadequate access to healthcare. The Committee is concerned about reports about inter-prisoner violence, including sexual violence and intimidation, in places of detention. (art. 10)
The State party should:
(a) Take the necessary measures to alleviate the overcrowding of penitentiary institutions, inter alia, through the application of alternative measures to imprisonment and through initiating at its own initiative a review of sentences with a view of bringing them in compliance with the December 2008 amendments of the Criminal Code. The State party should continue making available the necessary material, human and budgetary resources to ensure that the conditions of detention in the country are in conformity with minimum international standards; ... ”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-93847
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SEBOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1947 and lives in the city of Odessa, Ukraine.
5. In February 1996 Mr I. M., the father of the applicant’s grandson, exchanged his share in the apartment in which he cohabited with his parents, for the apartment of Mrs I.S, his grandmother, who moved in with his parents. This transaction was recorded in a residential premises exchange bureau (бюро обміну житловими приміщеннями), but was not certified by a notary.
6. In May 1996 Mr I. M. gave the applicant a power of attorney authorising her to manage all his property.
7. In June 1996 the applicant, acting on the basis of this power of attorney, sold the apartment Mr I.M. had acquired from Mrs I.S to Mr Y. S., the applicant’s former husband, who in October 1996 sold it on to Mr V. K.
8. On 23 June 1997 Mr I. M. instituted civil proceedings in the Malynivsky District Court of Odessa (“the Malynivsky Court”) against the applicant, Mr Y. S. and Mr V. K., seeking to annul the sales of his apartment, which he alleged had been effected in breach of confidence.
9. On 9 October 1997 Mrs I.S. lodged a claim against Mr I. M., his parents, the applicant, Mr Y. S. and Mr V. K., seeking to annul the initial apartment exchange and subsequent sales. These proceedings were joined to the proceedings that had been brought by Mr I.M.
10. On 17 May 1999 the Malynivsky Court dismissed Mr I. M.’s claim for breach of confidence and upheld Mrs I.S.’s claim for the annulment of the exchange, considering that the exchange had not been certified by a notary in breach of applicable law. However, having found that Mr V. K. had purchased the apartment in good faith, the court declared him the lawful owner of the apartment and ordered the applicant and Mr Y. S. jointly to pay Mrs I.S. compensation of 41,181 Ukrainian hryvnyas for the loss of the apartment. The applicant and Mr Y. S. appealed in cassation.
11. On 31 December 1999 Mrs I.S. died.
12. On 11 April 2000 the Odessa Regional Court authorised Mrs L. M. to join the proceedings as Mrs I.S.’s successor.
13. On 25 April 2000 it quashed the judgment of 17 May 1999 as regards the amount of compensation awarded against the applicant and Mr Y. S. after finding that the first-instance court had insufficiently explored the relevant evidence, and remitted the case for a fresh consideration.
14. On 21 August 2001 the Malynivsky Court ordered the applicant and Mr Y. S. to pay Mrs L. M. UAH 56,112 in compensation for the loss of the apartment. The applicant and Mr Y. S. appealed.
15. On 17 October 2002 the Regional Court quashed that judgment and remitted the case for fresh consideration. The applicant and Mr Y. S. appealed in cassation.
16. On 29 May 2003 the Supreme Court rejected their request for leave to appeal in cassation.
17. On several occasions the applicant and her husband unsuccessfully challenged the decision to allow Mrs L. M. to join the proceedings.
18. On 18 December 2006 the Malynivsky Court ordered the applicant and Mr Y.S to pay Mrs L. M. UAH 80,653.33 in compensation for the loss of the apartment.
19. On 27 March 2007 the Odessa Regional Court of Appeal upheld that judgment. The applicant and Mr Y. S. appealed in cassation.
20. On 31 May 2007 the Supreme Court upheld the judgments of the lower courts.
21. On 7 October 1999 the applicant instituted civil proceedings in the Central District Court of Odessa, alleging that Mr I. M. had failed to repay her 7,000 United States dollars (USD) he had received as a loan.
22. On 24 May 2000 the court heard the case in the defendant’s absence and allowed the applicant’s claim. It noted, in particular, that the defendant had systematically ignored its orders summoning him to the hearings. This judgment was not appealed against and became final.
23. On 21 February 2001 the Presidium of the Odessa Regional Court quashed that judgment following an objection (протест) instituted by the Deputy President and remitted the case for fresh consideration. The Presidium confirmed that the defendant had been duly notified of the hearings. However, it considered that the interests of justice required his presence in order to clarify ambiguities as to the nature and terms of the agreement between the parties.
24. On 20 March 2002 the Central District Court decided to hear the case in the defendant’s absence in view of his repeated refusals to accept service of the summons. It dismissed the applicant’s claim. The applicant appealed.
25. On 11 July 2002 the Regional Court quashed that judgment, after finding the evidence that the defendant had been duly notified of the hearings unpersuasive. Subsequently, the proceedings were transferred to the Prymorsky District Court of Odessa (the Prymorsky Court).
26. On 24 December 2003 the Prymorsky Court dismissed the applicant’s claim after hearing evidence from both parties. It found that the applicant had failed to prove that Mr I. M. owed her the money claimed.
27. On 28 April 2004 the Regional Court quashed that judgment and remitted the case for fresh consideration. Mr I. M. appealed in cassation.
28. On 22 September 2006 the Supreme Court rejected Mr I. M.’s request for leave to appeal in cassation.
29. On 3 April 2007 the first-instance court terminated the proceedings since the parties failed to appear. The applicant appealed.
30. On 11 July 2007 the Regional Court quashed the ruling of 3 April 2007.
31. On 8 October 2007 the first-instance court allowed the applicant’s claim in part.
VIOLATED_ARTICLES: 6