ITEMID: 001-89062
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KHUZHIN AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-2;Violation of Art. 6-1;Violation of Art. 8;Violation of P1-1;Just satisfaction dismissed
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants are brothers. Mr Amir and Damir Khuzhin were twins born in 1975 and Mr Marat Khuzhin was born in 1970. They all live in the town of Glazov in the Udmurtiya Republic of the Russian Federation. On 19 June 2006 Mr Damir Khuzhin died in an accident.
5. On 14 April 1999 the first and second applicants were arrested on suspicion of kidnapping committed in concert. The case was assigned to Mr Kurbatov, a senior investigator in the prosecutor’s office of the Udmurtiya Republic.
6. On 12 May 1999 the investigator Mr Kurbatov questioned the third applicant as a witness. On the same day he was placed in custody. On 14 May 1999 the investigator issued a formal decision to arrest the third applicant on suspicion on aiding and abetting kidnapping.
7. On 17 and 26 May 1999 the first applicant was allowed to see his fiancée, Ms Maksimova. It would appear that on the latter date they contracted a marriage because from 9 June 1999 she began visiting him as his wife and changed her name to Mrs Khuzhina. In the subsequent period she visited the first applicant on a regular basis once or twice a month.
8. On 2 June 1999 the three applicants were charged with kidnapping and torture, offences under Articles 117 and 126 of the Criminal Code. They were accused of having abducted a certain Mr V., a homeless tramp, and forced him to perform physical labour in a fruit warehouse owned by them in exchange for extremely low pay. On several occasions V. had run away but the brothers had caught him, beaten him and tortured him by applying electric wires to various parts of his body.
9. On 7 June 1999 the first applicant and his counsel requested the investigator to arrange for a confrontation with V. and a certain witness U. On the following day the investigator refused their request, noting that the confrontation was “undesirable as both V. and U. had previously been financially dependent on the Khuzhin brothers and during a confrontation Amir Khuzhin could exert a negative influence on them”.
10. The third applicant and his counsel requested the investigator to interview witnesses G., L., and A., who could allegedly testify that V. had been able to move around freely and that the Khuzhin brothers had treated him well. On 18 June 1999 the investigator dismissed the request as unsubstantiated. He noted that V.’s liberty of movement had indeed been unrestricted in the beginning and the Khuzhin brothers had restrained him “only at a later stage” and that there were “a sufficient number of depositions by witnesses and the victim to the effect that the Khuzhin brothers had treated V. very badly and humiliated him”.
11. It appears that on an unspecified date the police entered and inspected a warehouse belonging to the applicants.
12. On 20 July 1999 the State television channel Udmurtiya broadcast the Versiya (“Version”) programme. The second part of the programme concerned the applicants’ case. The participants included the presenter Ms Temeyeva, the Glazov town prosecutor Mr Zinterekov, the investigator Mr Kurbatov, and Mr Nikitin, who was head of the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic, as well as the victim V., whose face was not shown.
13. Mr Zinterekov opened the programme with the following statement:
“The Khuzhin brothers are, by their nature, cruel, insolent and greedy; they wished to get cheap or, more precisely, free labour. On the other hand, the victim V., a person with no fixed abode, mild and gentle...”
14. The presenter started telling the story of V.’s enslavement. As she was speaking, black-and-white passport-size photos of the applicants were shown full screen.
15. The presenter’s story alternated with that of the victim V., who related how he had been ill-treated by the Khuzhins and had unsuccessfully attempted to escape. The presenter asked the participants whether the Khuzhin brothers could be described as sadistic.
16. Mr Zinterekov replied as follows:
“We, that is, prosecutors and the police, have known these brothers from the time when they were still minors... We investigated the acts committed by the brothers but they could not be held criminally liable by virtue of their young age. After they reached the age [of majority], they found themselves in the dock. All three brothers were convicted of disorderly acts. In my opinion, that offence is very much characteristic of all the Khuzhin brothers in its cruelty and meaningless brutality. I think that the personal qualities of the Khuzhin brothers and [their] desire to have free labour have led to this crime.”
17. The participants subsequently discussed why the victim had not come to the police immediately after the beatings had begun, and commented on legal aspects of the pending proceedings:
“[Mr Kurbatov:] You know when [V.] came to the law-enforcement authorities in April 1999, our investigative group in the Glazov town prosecutor’s office was shocked at the cruelty of this crime. When a person comes for protection to the law-enforcement authorities, you should examine him closely, listen carefully to his story. [V.] had more than 187 injuries on him. The Convention [for the Prevention] of Torture naturally comes to mind.
[Presenter:] The Khuzhin brothers are now charged under two provisions of the Criminal Code: Article 126 – kidnapping committed for lucrative motives, and Article 117 – torture.”
As she was speaking, the first page of the criminal case file was shown on screen.
18. The other participants offered the following comments:
[Mr Zinterekov:] The prosecutor’s office will insist on imprisonment as a measure of punishment in respect of all three brothers... For instance, Article 126 § 2 provides for five to ten years’ imprisonment, Article 117 provides for three to seven years’ imprisonment. The court will have to choose...
[Mr Nikitin:] A brazen crime. If anyone knows about similar facts, report them to the police and the criminals will be punished...
[Presenter:] ... In September the Glazov Town Court begins its examination of the criminal case. Three businessman brothers who got a false idea of being slave-owners will get a well-deserved punishment.”
19. The programme was broadcast again in August 1999 and on 15 May and 25 October 2001.
20. On 7 August 1999 the journalist Ms M. published an article under the headline “The Land of Slaves” («Страна рабов») in the local newspaper Kalina Krasnaya. It began as follows:
“I am firmly convinced that the following story is just one fact that emerged from the dim waters of market relations. And ethnic relations as well. Though I wish I were impartial as regards these ethnic relations – each people has its enlightened scholars and cruel murderers.”
21. The journalist related the story of V., who had been exploited and beaten by the Khuzhin brothers. The article mentioned that the elder brother’s first name was Marat, that the two other brothers were twins aged 24 and that they traded in fruit at a local market. The applicants’ last names were not listed. A former classmate of V. who had given him refuge was quoted as citing a statement by V. himself, to the effect that “these Tatars have everything fixed up”. The final paragraph read as follows:
“Many, many questions crossed my mind as I was reading the criminal case file. Why is the life of a dirty piglet more valuable than a human life? Why are masses of Russians, Udmurts and others among the unemployed, while ‘they’ not only find work for themselves but also use hired labour! And why does everyone in the town know about the doings of that best friend of all tramps and put up with it? ...”
22. The applicants lodged several complaints about the press coverage of proceedings against them.
23. In a letter of 23 March 2000 Mr Nikitin replied that the programme had been produced on the basis of information supplied by the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic. Pursuant to Article 139 of the RSFSR Code of Criminal Procedure, the prosecutor’s office had had the right to disclose materials in the case file and make them available to the journalist.
24. In a letter of 3 May 2000 a deputy prosecutor of the Udmurtiya Republic replied that there were no grounds to hold officials of the Glazov prosecutor’s office criminally liable for disclosure of materials from the investigation.
25. On 25 August 2000 Mr Zinterekov wrote that there were no grounds for liability to be incurred either by officials of the prosecutor’s office or by journalists who had provided coverage of the proceedings.
26. On 18 December 2000 a deputy prosecutor of the Udmurtiya Republic replied to the third applicant that Mr Zinterekov could not be held criminally liable for his statements.
27. In a letter of 12 March 2001 a deputy prosecutor of the Udmurtiya Republic confirmed that the disclosure of the case file to the mass media had been in compliance with Article 139 of the Code of Criminal Procedure. He further noted that the Glazov town prosecutor (Mr Zinterekov) had been told to use “a more balanced approach in determining the scope of information that could be made public in criminal cases before the conviction has become final”.
28. In similarly worded letters of 25 July and 15 August 2001, deputy prosecutors of the Udmurtiya Republic informed the first and third applicants that there were no grounds to initiate a criminal case against the maker of the television programme and that no further replies concerning that matter would be given. The Glazov town prosecutor was, however, instructed to check whether a criminal investigation should be opened in connection with the article in the Kalina Krasnaya newspaper.
29. On 27 September 2001 an investigator from the Glazov prosecutor’s office issued a formal decision not to initiate a criminal case for libel against the journalist M., who had authored the article “The Land of Slaves”. It appears from the decision that, in M.’s own words, she had received formal permission from the investigator Mr Kurbatov to consult the case file and that Mr Kurbatov had approved a draft of the article. Mr Kurbatov, however, denied any memory of granting access to the file to M. and claimed he had never read the article in question. He did not deny, though, that he had briefed the presenter of the television programme on details of the criminal case. Referring to the applicants’ conviction by the judgment of 2 March 2001 (see below), the investigator found that the contents of the article had been essentially true and that M. had not disseminated any false information damaging the third applicant’s dignity or honour.
30. On 31 July 2000 the Glazov Town Court held a directions hearing and scheduled the opening of the trial for 10 August 2000.
31. The trial continued in late 2000 and early 2001. Witnesses for the prosecution and defence, as well as the victim Mr V., testified in court.
32. On 2 March 2001 the Glazov Town Court found the applicants guilty of kidnapping and torture under Article 126 § 2 and Article 117 § 2 of the Russian Criminal Code. The third applicant was sentenced to five years and one month’s imprisonment, whilst the first and second applicants were to serve seven years in a high-security colony.
33. The applicants appealed against the conviction. Their points of appeal concerned, in particular, the alleged prejudice to their presumption of innocence which had resulted from the newspaper publication and television programme described above. The prosecution also lodged an appeal. The case file was sent to the Supreme Court of the Udmurtiya Republic for consideration on appeal.
34. On 29 October 2001 the acting president of the Criminal Division of the Supreme Court of the Udmurtiya Republic returned the case file to the Town Court because the trial judge had failed to consider the applicants’ comments on the trial record, to locate the allegedly missing documents and to provide the applicants with a copy of the prosecution’s points of appeal.
35. In an interim decision of 1 November 2001 the Glazov Town Court partly accepted and partly rejected the applicants’ corrections of the trial record.
36. On 18 December 2001 the Supreme Court of the Udmurtiya Republic heard the case on appeal and upheld the judgment of 2 March 2001. The court did not address the applicants’ arguments concerning an alleged impairment of their presumption of innocence.
37. Following their conviction, the applicants remained in detention facility no. IZ-18/2 for unspecified reasons.
38. On 21 October 2002 the facility administration distributed winter clothing to the prisoners. The applicants refused to take it. On 13 November 2002 the third applicant accepted a padded jacket and the second applicant winter shoes.
39. On 26 December 2002 the applicants were listed for transport from detention facility no. IZ-18/2 to correctional colonies. According to them, the outside temperature on that day was -36o C; the Government submitted a certificate from the meteorological service showing that the temperature fell to -29.8 o C in the night.
40. At about 5 p.m., when the applicants were taken to the assembly cell of the detention facility together with ten to twelve other detainees, they were wearing T-shirts and tracksuit bottoms. The wardens offered them winter jackets and hats which, according to the Government, hailed from the humanitarian-aid supplies but had been washed and were neat. The applicants claimed that the items were “torn and old” and refused to take them.
41. At 10 p.m. the applicants, together with other prisoners, were put into a prison van and taken to Glazov railway station to board the Kirov-Kazan train that arrived at 10.10 p.m. The distance between the facility and the station was 800 metres and the journey time was less than five minutes. At 10.05 p.m. the van arrived at the station and the applicants emerged from it without winter clothing. A prison inspector dashed into the van, collected the winter clothing which the applicants had left behind, and gave it to the escorting officer. The officer again offered the clothing to the applicants to put on but they refused to do so, claiming that it was unfit to wear. According to the statements by the inspector and the officer, the clothing was in an “appropriate condition”.
42. It appears that the argument went on for about 10 to 15 minutes. The head of the train escort refused to take the applicants in without appropriate clothing and the facility personnel decided to take them back into the cells.
43. In support of their claim that the clothing had been “inappropriate”, the applicants produced to the Court a written statement signed by five other detainees who had been held in facility no. IZ-18/2 at that time.
44. On 27 and 29 December 2002, 7 January and 11 April 2003 and other dates the applicants complained that they had been subjected to inhuman and degrading treatment on 26 December 2002.
45. On 28 February 2003 Mr Zinterekov responded to them in the following terms:
“It has been established that winter clothing was given to you and that you remained outside in clothing inappropriate for that season only because you refused to put it on. Your arguments that the clothing offered did not meet sanitary and hygiene standards could not have been objectively confirmed; there are no grounds for disciplining any officials.”
46. On 12 May 1999 the third applicant arrived in his van at the Glazov police station for questioning. On that day he was taken into custody (see above).
47. On 13 May 1999 the investigator Mr Kurbatov impounded the van and ordered that it should be kept in the car park of a private company. The charging order itself did not indicate the grounds on which it had been issued, but referred back to the investigator’s decision of the same date, a copy of which was not made available to the Court.
48. The third applicant repeatedly complained to various authorities that his van had been unlawfully seized. He alleged that the investigator was using it for his private errands.
49. In a letter of 14 April 2000 the acting Glazov prosecutor reported to the third applicant the findings of an internal inquiry into his complaints. He found as follows:
“On 12 May 1999 Mr Kurbatov arrested you... However, the Gazel car, in which you had arrived, remained in the street outside the premises of the Glazov police station, and measures for its safe keeping were not taken. The car remained there until 13 May 1999, when Mr Kurbatov impounded it... However, he did not examine the state of the car, nor did he show it to you or any attesting witnesses...
The impounded car was taken by a road police employee from Glazov police station, acting on Mr Kurbatov’s orders, into the premises of the [private company]. The car was not properly sealed...
It must be noted at the same time that there existed no legal grounds for impounding the vehicle, as required by Article 175 § 1 of the RSFSR Code of Criminal Procedure. According to that provision, a charging order could be issued with a view to securing a civil claim or a possible confiscation order. However, in this case no civil claim was brought throughout the proceedings and the criminal-law provisions under which [the third applicant] was charged do not provide for confiscation measures as a penal sanction.
Thus, Mr Kurbatov breached Articles 141, 142, 175 and 176 of the RSFSR Code of Criminal Procedure – which set out the requirements for the record of impounding and the procedure for issuing charging orders – and also the Instruction on the procedure for seizing, accounting, storing and transferring physical evidence in criminal cases, values and other assets by law-enforcement authorities and courts.
Further to the internal inquiry, the prosecutor of the Udmurtiya Republic was advised to determine whether Mr Kurbatov should be disciplined.”
50. On 13 June 2000 the investigator Mr Kurbatov handed the keys and registration documents of the van to the Glazov Town Court.
51. In letters of 19 July and 18 December 2000 the Udmurtiya Republic prosecutor’s office informed the third applicant that Mr Kurbatov had been disciplined for breaches of the Instruction on the procedure for storing physical evidence and fined in the amount of his bonus salary for the first quarter of 2000.
52. It appears that on 4 June 2002 the Glazov Town Court lifted the charging order and the third applicant’s van was returned to Mrs Khuzhina (his brother’s wife).
53. On an unspecified date the third applicant sued the investigator Mr Kurbatov for damages on account of his failure to ensure the safe keeping of his van; all three applicants also brought a defamation action against the journalist Ms M., seeking compensation in respect of non-pecuniary damage. The Glazov Town Court ordered the joinder of both actions and listed a hearing for 3 March 2003.
54. In February 2003 the applicants asked the court for leave to appear. Mrs Khuzhina, as a representative of the first applicant, asked the court to ensure the attendance of the applicants at the hearing.
55. On 3 March 2003 the Town Court issued several procedural decisions. In the first decision, it rejected Mrs Khuzhina’s request for the applicants’ attendance, holding that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case. The second decision took stock of the absence of both parties – the journalist Ms M. and a representative of the newspaper had not shown up despite having been notified of the hearing – and indicated that the case would be heard in their absence. It appears that Mrs Khuzhina then walked out of the courtroom in protest against the court’s decision to hear the case in the absence of the first applicant. In a third decision, the court decided to proceed with the case in her absence. It additionally rejected the applicants’ request for leave to appear on the same grounds as above, adding:
“...parties to the case do not just have rights but also have duties, such as [a duty] to make written submissions and substantiate their claims. Taking into account the fact that the rights of Mr A. Khuzhin, Mr D. Khuzhin and Mr M. Khuzhin are not restricted and can be exercised by them in full measure, there are no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent [дерзкие] crimes.”
Lastly, the Town Court rejected the applicants’ requests to summon witnesses and study the hearing records, reasoning as follows:
“The substantiation of the Khuzhins’ claim seeks to obtain a new assessment of the circumstances and findings set out in the criminal judgment of 2 March 2001. The statements by the Khuzhin brothers are not reasoned or argued; they are not procedural requests as such [sic]; they have repeatedly studied the materials in the case file and can study them again by receiving copies of them; since they are serving a sentence imposed by a court judgment in a penitentiary institution, the case must be examined in their absence.”
56. On 4 March 2003 the Town Court refused for the same reasons the third applicant’s request to obtain attendance of witnesses and an expert. It also decided to proceed with the hearing in the absence of both parties’ representatives.
57. On the same day the Town Court dismissed all of the applicants’ claims. On the defamation issue it found that the article “The Land of Slaves” had been based on the true facts which had subsequently been established in the criminal judgment of 2 March 2001. As regards the claim relating to the damage caused to the third applicant’s van, it established that the vehicle had been returned to him after he had paid compensation to the victim for non-pecuniary damage and that the investigator had acted within his powers and had not caused any damage through his actions.
58. The applicants and Mrs Khuzhina appealed. They complained, in particular, of a breach of the principle of equality of arms. Mrs Khuzhina additionally pointed out that she had not been the representative of either Damir or Marat Khuzhin.
59. On 7 October 2003 the Civil Division of the Supreme Court of the Udmurtiya Republic held an appeal hearing. It appears that neither the applicants nor Mrs Khuzhina were in attendance. The court held that there had been no breach of equality of arms because the applicants had been duly notified of the hearing and informed of their right to appoint representatives. The second and third applicants had not made use of that right, whereas the first applicant’s representative, Mrs Khuzhina, had declined to take part in the hearing. In the court’s view, the joinder of the cases was also lawful and justified because the second applicant had been a party to both claims.
60. According to a letter of 30 April 2003 from the prosecutor of the Udmurtiya Republic to the second applicant, it was incumbent on the court hearing a civil claim to decide whether the detainee’s presence was necessary. The second applicant could have been escorted to the hearing if there had been a decision of the Glazov Town Court to that effect.
61. On an unspecified date the third applicant brought a defamation action against the prosecutor Mr Zinterekov. He challenged as defamatory the statements made by Mr Zinterekov in the Versiya television programme about the applicants’ adolescent delinquency, insolence and greediness.
62. On 14 November 2003 the Glazov Town Court delivered its judgment. Mr Zinterekov made oral submissions to the court; the third applicant was neither present nor represented. In dismissing the defamation action, the court noted as relevant the materials relating to the criminal case against the applicants and, more specifically, a reference letter for the second applicant from his secondary school that concerned his unauthorised absences from classes and disorderly behaviour. The court held that the facts as established in the judgment of 2 March 2001 had justified Mr Zinterekov’s reference to the applicants as insolent and greedy.
63. On 19 December 2003 and 22 January 2004 the third applicant lodged his points of appeal, alleging, in particular, a violation of the principle of equality of arms.
64. The Court has not been provided with any information about the appeal proceedings.
65. The Criminal Code provides that torture is punishable with up to seven years’ imprisonment (Article 117 § 2) and kidnapping with up to twenty years’ imprisonment (Article 126 § 3).
66. The RSFSR Code of Criminal Procedure (in force at the material time) provided as follows:
“If the investigator observes, on the basis of the case file, that the crime committed caused pecuniary damage to an individual or organisation, he must explain to them or to their representatives that they have a right to lodge a civil claim...
If a civil claim has been lodged, the investigator must issue a reasoned decision recognising [the interested party] as a civil claimant or refusing such status...”
“Materials from the preliminary investigation may only be made public with the consent of an investigator or a prosecutor and to the extent they consider it possible...”
“With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant ... or of the other persons who keep criminally acquired property... If necessary, the charged property may be impounded...”
67. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before the court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1).
68. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant.
69. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-69236
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF NOVOSELOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1961 and lives in Krasnodar.
9. On 26 June 1998 the applicant had a loud quarrel with his neighbour and assaulted him. Further to the neighbour's complaint, the police opened criminal proceedings against the applicant.
10. On 27 October 1998 the applicant was taken in custody and placed in investigations ward no. IZ-18/3 of Novorossiysk* (ИЗ 18/3 г. Новороссийска, “the facility”).
11. On 5 November 1998 the Oktyabrskiy District Court of Novorossiysk found the applicant guilty of disorderly behaviour, an offence under Article 213 § 1 of the Russian Criminal Code, and sentenced him to six months' imprisonment.
12. The applicant served the sentence in the same facility. He was released on 28 April 1999.
13. The applicant stayed in cells nos. 11 and 3.
14. According to the applicant, each cell measured approximately 42 m2 and accommodated 42 to 51 inmates. Inmates took turns to sleep. Thirty sleeping places were available, of which two were occupied with water receptacles for washing and flushing the toilet. The water containers were needed as running water was only available for one hour three times a day. No bedding was provided to inmates, save for tattered cotton mattresses. Between 5 November and 28 December 1998 in cell no. 11 the applicant had to sleep without a mattress on metal plates, covering himself with an old, dirty and worn cotton rag.
15. The Government did not dispute the cell measurements suggested by the applicant. They submitted that each cell had had 30 sleeping places, a full set of bedding had been distributed to each inmate and sleeping berths had been made of metal plates and covered with wadded mattresses.
16. According to the applicant, the ventilation in cells was only switched on for a few minutes when “inspectors” visited the facility. Windows were covered with steel plates leaving an open slot of about 10 cm. There was no fresh air in the cells.
17. The Government submitted that cells had been equipped with ventilation. It was switched on and off “in accordance with the schedule approved by the facility director” (order no. 41 of 26 May 1998). A copy of the schedule has not been produced to the Court. On “especially hot” days, doors were open to ensure a better circulation of air. At the material time windows had been covered with metal shields which were removed in 2002.
18. According to the applicant, the lavatory pan sat on an elevation of 0.5 m above the floor. A partition of 1.1 m in height separated it from the rest of the cell. Occasionally an inmate hung a sheet to have some privacy. According to the Government, lavatory pans were located at the entrance and separated from the living area by a brick partition measuring 1.3 m in height and width.
19. According to the applicant, inmates were given one piece of soap per week for the entire cell population. No laundry detergent was available. According to the Government, each inmate received 200 g of washing soap and 70 g of laundry detergent each month. Bathing was possible “regularly”.
20. The applicant claimed that a thick, black and footworn layer of dirt had covered the floor. Inmates' clothing swarmed with lice, spiders and other insects. Between 5 November 1998 and 15 January 1999 cell no. 11 was not once sanitised. Between 15 January and 28 April 1999 cell no. 3 was sanitised on one occasion. In the Government's view, the sanitary and hygienic conditions of the cells were up to the applicable standards and insecticide was distributed every month.
21. According to the applicant, the facility administration took complaints, requests and letters from inmates once a day, between 4.30 and 5 a.m. According to the Government, complaints and requests were taken from inmates during the morning inspection of cells starting at 8 a.m.
22. The applicant further submitted that the food ration had consisted of bread, millet porridge, boiled pearl barley and no-meat soup. In six months inmates were fed on five occasions with pea soup, soup with pasta and boiled rice.
23. In April 1999 the applicant contracted scabies and he received sulphuric and benzyl ointments to treat himself. He was not isolated from other inmates. The applicant's cellmates who contracted scabies and other skin diseases were not taken out of the cell either. The applicant submits that tuberculosis-infected inmates spent, on several occasions, a few days in his cell. According to the Government, infected inmates were isolated in a special wing. The applicant twice fell ill with a high temperature and he was treated with sulphadimisin and aspirin. From 13 to 20 April 1999 the applicant underwent outpatient treatment for dermatitis.
24. By the time of his release, the applicant had lost 15 kilograms in weight, he felt short of breath while walking, tired easily, could not run, and suffered from pustules and itching all over his body.
25. On 5 May 1999 the applicant was examined in clinic no. 1 of Novorossiysk and issued with a certificate confirming that he suffered from emaciation.
26. On 30 July 2002 the applicant filed a civil action for damages against the Treasury of the Russian Federation. He claimed compensation for non-pecuniary damage caused by “inhuman and degrading” conditions of detention in facility no. 18/3. He described the conditions of his detention in detail and relied, in particular, on Article 3 of the Convention.
27. On 1 October 2002 the Pervomayskiy District Court of the Krasnodar Region dismissed the applicant's action. It held that the applicant had failed to prove that the officials of facility no. 18/3 had been liable for pecuniary or non-pecuniary damage allegedly caused to him. The court noted that the applicant had served his sentence upon the lawful conviction by a competent court and, therefore, the responsibility of the treasury was not engaged.
28. On 14 November 2002 the Krasnodar Regional Court upheld, on an appeal by the applicant, the judgment of 1 October 2002.
29. Persons sentenced to no longer than six months' imprisonment may consent to serving the sentence in investigations wards (Article 74 § 1).
30. The norm of habitable floor surface per one inmate is fixed at 2.5 m2 in prisons (Article 99 § 1). Inmates shall have individual sleeping places and bedding, as well as personal hygiene articles (soap, toothbrush, toothpaste, toilet paper, disposable shavers) (Article 99 § 2).
31. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury.
32. The relevant extracts from the General Reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature...
48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...
50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”
VIOLATED_ARTICLES: 3


ITEMID: 001-23475
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ISLAMISCHE RELIGIONSGEMEINSCHAFT E.V. v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Islamische Religionsgemeinschaft e.V., is a religious association based in Berlin. It was represented before the Court by Mr H. Reckschmidt and Mr J.M. Schödler, both of the Berlin Bar.
The applicant association was formed in the German Democratic Republic (GDR) in February 1990 by citizens of the Muslim faith.
On 1 March 1990 it obtained State approval as a religious association with legal personality (rechtsfähig).
On 25 May 1990 the Presidium of the Executive Committee (Präsidium des Parteivorstands) of the Party of Democratic Socialism (Partei des demokratischen Sozialismus – PDS) decided to make a donation (Spende) of 75,000,000 GDR marks to the applicant association, following a request to that effect from the association.
On 31 May 1990 the president of the applicant association received a cheque for that amount.
On 6 June 1990 he handed the cheque to the applicant association’s bank, which credited the sum to its account on the same day.
In a letter of 17 April 1991 the Independent Commission for the Investigation of the Assets of Parties and Mass Organisations in the GDR (Unabhängige Kommission zur Prüfung des Vermögens der Parteien und Massenorganisationen in der DDR) stated that the donation in question constituted an asset covered by section 20a(2) of the Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), as amended by the Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes) (see “Relevant domestic law and practice” below). The asset was therefore subject to the administration of the Trust Agency (Treuhandanstalt).
The commission also considered that this unlawful disposal by the PDS of its assets without the Trust Agency’s consent, in breach of section 20b(1) of the Political Parties Act, had in fact amounted to a fictitious transaction (Scheingeschäft) designed to enable the applicant association’s president, who had close links with the PDS, to retain possession of the sum in question.
In a decision of 14 January 1992 the Federal Office for Special Tasks relating to German Reunification (Bundesanstalt für vereinigungsbedingte Sonderaufgaben – “the Federal Office”) ruled that the sum of money – converted into 37,500,000 German marks (DEM), together with the accrued interest – in the applicant association’s bank account constituted an asset subject to the administration of the Trust Agency and could not be disposed of without the Agency’s consent, by virtue of section 20b(1) of the Political Parties Act.
The Federal Office considered that the sum in question had been part of the PDS’s assets, which had been placed under the administration of the Trust Agency from 1 June 1990 onwards, pursuant to section 20(2) of the Political Parties Act. As the applicant association’s bank account had not been credited with the sum until after 1 June 1990, authorisation for that change in assets should have been sought from the Trust Agency, in accordance with section 20b(1) of the Political Parties Act, but that had not been the case.
On 5 February 1992 the applicant association lodged an objection against that decision, arguing, in particular, that, in accordance with Article 76 § 1 of the GDR Civil Code (Zivilgesetzbuch DDR), payment of the donation had taken effect when the cheque had been handed over on 31 May 1990 and that the value of its assets had therefore increased on that date.
In a decision of 13 April 1992 the Federal Office dismissed the objection.
The applicant association subsequently applied to the Berlin Administrative Court (Verwaltungsgericht) to have the Federal Office’s decisions set aside on the ground, inter alia, that it was not an organisation related to the PDS but a religious association entitled to protection under the Basic Law (Grundgesetz).
In a judgment of 9 May 1994 the Berlin Administrative Court granted the application in its entirety.
The Administrative Court held that the conditions for applying section 20b of the Political Parties Act were not satisfied. The applicant association was neither a juristic person nor an organisation related to the PDS, and the Trust Agency was not responsible for the administration of assets which had been transferred in accordance with the power of third parties to dispose of property (Verfügungsgewalt), even if the relevant contractual agreements had been invalid (unwirksam). In addition, it had not been established that the applicant association had been formed to pursue any aims other than those set out in its articles of association.
The Federal Office appealed against that judgment to the Berlin Administrative Court of Appeal (Oberverwaltungsgericht).
In a judgment of 22 November 1996 the Berlin Administrative Court of Appeal dismissed the appeal and upheld the Berlin Administrative Court’s judgment.
The Administrative Court of Appeal held that the Federal Office’s decision had had no basis in law as the applicant association was neither a juristic person nor an organisation related to the PDS. Even though the circumstances surrounding its formation and the payment of the donation in issue remained questionable in certain respects, there was insufficient evidence of any link between the applicant association and the PDS.
The Administrative Court of Appeal added that, in accordance with Article 76 § 2 of the GDR Civil Code, the power to dispose of the sum in question had not become effective until the money had been credited to the applicant association’s bank account. Admittedly, when the Political Parties Act had come into force on 1 June 1990, the money had still been part of the PDS’s assets. However, that did not justify the Federal Office’s actions, since it was required to institute civil proceedings if it wished to seek damages from third parties. It was unable to take any administrative measures by virtue of its powers as a public authority save in respect of the types of juristic person listed in section 20b of the Political Parties Act.
The Federal Office subsequently appealed on points of law to the Federal Administrative Court (Bundesverwaltungsgericht).
In a judgment of 10 December 1998 the Federal Administrative Court allowed the Federal Office’s appeal and set aside the judgment of the Administrative Court of Appeal on the ground that it had contravened federal law (Bundesrecht).
The Federal Administrative Court held that the Federal Office had been entitled to consider that, pursuant to section 20b(2) of the Political Parties Act, the donation paid into the applicant association’s bank account was placed under the administration of the Trust Agency.
It considered, firstly, that the sum of money in question had indeed been part of the PDS’s assets on the key date of 7 October 1989 and that, secondly, administration by the Trust Agency under section 20b(2) of the Political Parties Act could extend to third parties other than those specifically referred to in that provision.
With regard to the first point, the Federal Administrative Court referred to its own decision of 7 November 1997 and reiterated that a change in assets did not take effect on the date on which the cheque was handed over but only on the date on which the sum appearing on the cheque was credited to the relevant bank account. In the instant case, that had not occurred until 6 June 1990 – in other words, after 1 June 1990, the date on which the Political Parties (Amendment) Act had come into force, placing the sum in issue under the administration of the Trust Agency.
The Federal Administrative Court subsequently held that the fact that, as a result of the transfer, the PDS’s right to payment from its bank had been transformed into a right enjoyed by the applicant association to payment from its own bank did not mean that that the money in question was no longer part of the PDS’s assets; furthermore, the money had been paid into an account that already contained assets belonging to the applicant association. In that connection, it pointed out that the purpose of section 20b(2) of the Political Parties Act was, as it had previously held, to secure political-party assets acquired in breach of the rule of law (rechtsstaatswidrig), with a view to returning them to their former owners or using them in the public interest. Section 20b(2) of the Political Parties Act should therefore be construed according to economic criteria (wirtschaftliche Kriterien) and, accordingly, the Trust Agency’s administration of cash assets or money held in a bank account did not cease to be effective as a result of ordinary private-law transactions but continued as long as the sum in question was still sufficiently identifiable as the property of the party concerned, as had been the case in this instance.
With regard to the second point, the Federal Administrative Court considered that the Federal Office’s power of administration did not entail administration as a trustee in the ordinary sense but entitled it to exercise its sovereign powers to administer and dispose of assets (hoheitliche Verwaltungs- und Verfügungsbefugnisse) vis-à-vis third parties by means of a declaratory administrative measure (feststellender Verwaltungsakt). Under section 20b(2) of the Political Parties Act, the Trust Agency’s activities were not designed to protect the best interests of the political party or related organisation. On the contrary, its task was to ensure, once the assets in question had been secured, that they were returned to their former owners by way of reparation (Wiedergutmachung) or, if that proved impossible, that they were used in the public interest. Only where the assets had been acquired in accordance with the rule of law were they to be returned to the party or related organisation. The sovereign powers conferred on the Federal Office accordingly included the right to use those powers against third parties by means of an administrative measure.
The applicant association subsequently lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht).
In a decision of 21 April 1999 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the appeal.
The Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes), which amended the GDR’s Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), came into force on 1 June 1990.
Section 20a(1) of the Act provides that the Prime Minister (Ministerpräsident) is to appoint an independent commission to draw up a report on the assets (Vermögenswerte) of all the GDR’s political parties and related organisations, juristic persons and mass organisations, both within and outside the territory of the GDR.
By section 20a(2), all political parties and related organisations, juristic persons and mass organisations must, inter alia, provide the commission with a statement of all their assets as at 7 October 1989 and of any subsequent changes.
Section 20b(1) provides that as soon as the Act comes into force, no changes in the assets of such entities may be effected without the consent of the chairman of the independent commission.
Section 20b(2) provides:
“In order to secure the assets of political parties or related organisations, juristic persons and mass organisations, all assets which belonged to political parties and related organisations, juristic persons and mass organisations on 7 October 1989, or which have subsequently replaced those assets, shall be placed under the administration of a trustee.”
(“Zur Sicherung von Vermögenswerten von Parteien oder ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen wird das Vermögen der Parteien und der ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen, das am 7. Oktober 1989 bestanden oder seither an die Stelle dieses Vermögens getreten ist, unter treuhänderische Verwaltung gestellt.”)


ITEMID: 001-60914
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF CORDOVA v. ITALY (No. 2) [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1936 and lives in Naples.
10. In 1993 he worked as a prosecutor at the Palmi public prosecutor's office.
11. At an election meeting in Palmi on 13 March 1994, Mr Vittorio Sgarbi, a member of the Italian parliament, made the following speech:
“I had heard of Palmi because of the misdeeds of a prosecutor called Cordova, who gave it its only claim to fame with the inquisition he conducted and is still conducting there, while being defamatory of the South. I will pursue my fight against those judges who are in cahoots [collusi] with the [political] parties, who just want to wage political battles instead of defending justice. ... I remember something unacceptable ...: out of a delusion of omnipotence and wish to dominate, this prosecutor sent two carabinieri ... to seize the membership lists of the Rotary Club. Bugger off, Cordova, bugger off [vaffanculo Cordova, vaffanculo]! You should not tolerate a judge spending your money for his own greater glory, just to assert himself.”
12. At a second meeting, which took place in Palmi on 6 June 1994, Mr Sgarbi made another speech, the following extracts of which are relevant to the present case:
“The first town in Italy to do so, Palmi nominated a candidate for the 'Miss Italia' competition, thus creating a contrast with that ugly mug Cordova, who has brought a complaint against me ... You know there are some complaints I am proud of, but I simply said something about this Mr Cordova which he knows is true, that he is nicknamed 'bulldog' [mastino]; and I said he looked so much like an actor that he could play both the policeman and the police dog, and he brought a complaint against me; I thought he didn't have much of a sense of humour, but I'm not worried about the complaint, because if someone is happy to be nicknamed 'bulldog', and he really looks a bit like one, it's hard to understand why he gets annoyed over one of my jokes; but, to show how the national legal service take advantage of their power, he has brought a complaint against me, and I've even been sent for trial.”
13. As he considered that his honour and his reputation had been attacked by Mr Sgarbi's remarks, the applicant lodged a complaint for aggravated defamation.
14. By an order of 15 December 1994, the Palmi public prosecutor's office committed Mr Sgarbi for trial before the Palmi District Court and set the hearing date for 6 March 1995. On the latter date the applicant joined the proceedings as a civil party.
15. In a judgment dated 6 March 1995, the text of which was lodged with the registry on 6 June 1995, the District Court gave Mr Sgarbi a suspended sentence of two months' imprisonment, and ordered him to compensate the applicant for the damage suffered, with quantum to be determined at a civil trial. It also awarded the applicant an immediate payment of 20,000,000 Italian lire (roughly 10,329 euros) to be offset against the total award of damages.
16. The District Court began by stating that it had not considered it necessary to stay the proceedings in order to seek the opinion of the Chamber of Deputies. It was clear simply on reading the charges that the remarks in issue had not been made in the exercise of parliamentary functions; they were therefore not protected by the constitutional safeguard of parliamentary immunity (Article 68 § 1 of the Constitution). In relation to the merits of the case, the District Court observed that, leaving aside the plainly vulgar and insulting expressions (the word “vaffanculo” in particular), Mr Sgarbi's allegations tended to depict the applicant as a self-regarding prosecutor who used his office and public money exclusively in pursuit of his own greater glory, and who did not serve the interests of justice but those of certain political parties. In the circumstances, there could be no doubt that Mr Sgarbi's allegations were defamatory. Although, like any other citizen, he was entitled to criticise a member of the national legal service, he should do so in polite terms and refer to objective and precise facts, which he had not done. On the contrary, Mr Sgarbi had started a personal quarrel by alleging, in an entirely unspecific and unjustified manner, that the applicant had behaved unethically.
17. Mr Sgarbi appealed against that judgment. He applied for the proceedings to be stayed and the file to be remitted to the Chamber of Deputies. That application was founded on Article 2 § 4 of Legislative Decree no. 116 of 1996 (as then in force), under which if a court rejects a defence based on the applicability of Article 68 § 1 of the Constitution pleaded by one of the parties, it is required immediately to forward a copy of the file to the legislative chamber to which the parliamentarian belongs. Once the file has been forwarded the proceedings are thereby stayed until the legislative chamber concerned has debated the issue. Such a stay may on no account last for more than a total of one hundred and twenty days.
18. By a judgment of 28 March 1996, the Reggio di Calabria Court of Appeal upheld the first-instance decision. In relation to the application for a stay, it observed that the District Court had already remitted the file to the Chamber of Deputies, which had thus had an opportunity to debate the question of the applicability of Article 68 § 1 of the Constitution. Moreover, the statutory time-limit of one hundred and twenty days had long since expired.
19. Mr Sgarbi appealed on points of law.
20. By an order of 23 October 1996, the Court of Cassation stayed the proceedings and ordered the file to be remitted to the Chamber of Deputies. The question was first examined by the Immunities Commission (Giunta per le autorizzazioni a procedere), which proposed a finding that the facts on the basis of which Mr Sgarbi had been tried did not concern opinions expressed in the exercise of his functions, and that Article 68 of the Constitution was therefore not applicable.
21. On 22 October 1997, after a debate on the issue, the Chamber of Deputies in plenary session rejected the Immunities Commission's proposal by 197 votes to 154, with 60 abstentions.
22. In a written submission dated 26 February 1998, the applicant, considering that the decision of the Chamber of Deputies had wrongly encroached on the jurisdiction of the courts, requested the Court of Cassation to raise a conflict of State powers before the Constitutional Court.
23. By a judgment of 6 May 1998, the text of which was lodged with the registry on 17 July 1998, the Court of Cassation quashed the judgments of the Reggio di Calabria Court of Appeal and the Palmi District Court, declaring them null and void on the ground that the accused had been acting in the exercise of his parliamentary functions.
24. The Court of Cassation observed that two interests enshrined in the Constitution were in conflict: on the one hand, the autonomy and independence of Parliament, and, on the other, the right of all citizens to ask the courts to uphold their right to have their reputation protected. A resolution by which a legislative chamber recognised that a certain act or statement was covered by Article 68 § 1 of the Constitution halted all criminal, civil or administrative proceedings against the parliamentarian responsible for that act or statement, and therefore resulted in the first interest prevailing over the second. Such resolutions could not be quashed by the ordinary courts. However, the courts could raise a conflict of State powers before the Constitutional Court if they considered that, in the particular circumstances of a given case, Parliament had wrongly exercised its powers, arbitrarily encroaching on and restricting the institutional jurisdiction of the courts.
25. In the opinion of the Court of Cassation, the resolution of the Chamber of Deputies of 22 October 1997 had been neither arbitrary nor manifestly unreasonable. Although it had widened the protection afforded by Article 68 § 1 of the Constitution to cover views expressed outside the ambit of parliamentary activities in the strict sense, a broad interpretation of the concept of “parliamentary functions” encompassing all politically inspired acts, even those occurring outside Parliament, had often been adopted in the past, and was not per se manifestly contrary to the spirit of the Constitution. The Chamber of Deputies had thus been entitled to opt for such an interpretation without thereby exceeding its powers. Accordingly, the Court of Cassation considered it unnecessary to raise a conflict of powers before the Constitutional Court and quashed Mr Sgarbi's conviction.
... [The relevant domestic law and practice are set out in Cordova v. Italy (no. 1), also reported in this volume]
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61606
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KORMACHEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1952 and lives in Gus Khrustalnyi, a town in the Vladimir Region.
9. Before her removal to Gus Khrustalnyi the applicant lived and worked in Mys Shmidta, a town located in Chukotka, a far-eastern territory adjacent to Alaska.
10. On 31 October 1996 the applicant filed with the Shmidtovskiy District Court of the Chukotka Autonomous Region (the “Shmidtovskiy Court”) an action against her former employer, a local trading office. She wanted the defendant to pay outstanding emoluments, discharge and leave allowances, and to properly formalise her discharge.
11. As the proceedings did not progress, in 1997-1999 the applicant complained several times about the Shmidtovskiy Court to a number of higher judicial and other authorities.
12. On 18 April 1997 the President of the Judicial Qualifications Board, of the Chukotka Autonomous Region (the “Regional Qualifications Board”, “Board”) asked the President of the Shmidtovskiy Court to inform him why it took the court so long to deal with the applicant's case and when the case would be heard.
13. On 24 July 1997 the President of the Chukotka Regional Court (the “Regional Court”) asked the President of the Shmidtovskiy Court to start the proceedings, to fix a hearing and to inform the applicant about the date of the hearing before 20 August 1997.
14. On 1 August 1997 the President of the Civil Section of the Regional Court forwarded the applicant's complaint to the President of the Shmidtovskiy Court. He asked to inform him and the applicant about the state of the proceedings before 25 August 1997.
15. On 13 March 1998 the President of the Regional Court asked the President of the Shmidtovskiy Court to inform the applicant before 15 April 1998 of the date when her case would be heard. He also informed the applicant that the Regional Court could not deal with her case itself because it was understaffed. The President noted that his earlier requests to the Shmidtovskiy Court had remained unanswered.
16. On 30 March 1998 the President of the Supreme Judicial Qualifications Board asked the President of the Regional Court to investigate the applicant's complaint and take measures, if need be.
17. On 20 April 1998 the President of the Regional Court asked the President of the Shmidtovskiy Court to inform him before 20 May 1998 about the state of the proceedings. He noted that the President had not responded to the Regional Court's earlier requests to speed up the proceedings. He also warned the President that he would have to apply to a judicial qualifications board if the procrastination continued.
18. On 18 May 1998 the Shmidtovskiy Court issued a letter rogatory by which it asked a Moscow court to question the applicant. The Moscow court could not execute the request because the applicant had not informed the courts that her address had changed.
19. On 7 July 1998 the President of the Regional Court informed the applicant that her case could not be examined because the Shmidtovskiy Court was understaffed and overloaded with work.
20. On 4 August 1998 the new President of the Regional Qualifications Board asked the President of the Shmidtovskiy Court to forward to the Board before 1 October 1998 copies of procedural documents concerning the case. She noted with displeasure that the Shmidtovskiy Court had been ignoring the applicant's earlier complaints and the Board's requests. She also informed the applicant that the Shmidtovskiy Court had been understaffed since July 1997, and that it was impossible under the law to sue the court or an individual judge for damage caused by delays in proceedings.
21. On 13 January 1999 the President of the Regional Qualifications Board asked the President of the Shmidtovskiy Court to inform the Board and the applicant before 10 February 1999 about the progress of the case. She also asked the President of the Shmidtovskiy Court to submit copies of procedural documents which would prove that the judge responsible for the applicant's case had prepared the case for a hearing. She also informed the applicant that it was impossible to summon the President of the Shmidtovskiy Court to the regional capital for explanations, because Mys Shmidta was located too far away from the capital and because the Board did not receive any financing for such purposes.
22. On 15 February 1999 the Deputy President of the Regional Qualifications Board noted that the President of the Shmidtovskiy Court had still not informed the applicant about the progress of her case despite the earlier orders. He asked the President of the Shmidtovskiy Court to provide this information to the applicant immediately.
23. On 12 April 1999 the President of the Regional Qualifications Board informed the applicant that the Board was going to visit the Shmidtovskiy Court because there had been numerous complaints about its inactivity. The visit was fixed for May-June 1999, provided that the Board would have sufficient funds for it.
24. On 26 April 1999 the President of the Supreme Judicial Qualifications Board asked the President of the Regional Court to verify the applicant's complaints and to pass them to the Regional Board if they proved to be well-founded.
25. On 3 June 1999 the Shmidtovskiy District Court passed a first judgment in the applicant's case by which her claims were granted. The defendant appealed against this judgment.
26. On 12 July 1999 the President of the Supreme Qualifications Board asked the President of the Regional Court to investigate the activity of the President of the Shmidtovskiy Court before 1 September 1999.
27. On 18 August 1999 the President of the Regional Qualifications Board informed the applicant that the Board would investigate the activity of the President of the Shmidtovskiy Court.
28. On 23 December 1999 the Regional Court granted the defendant's appeal and remitted the case to the Shmidtovskiy Court for a fresh examination.
29. On 3 April 2000 the Regional Qualifications Board officially reprimanded the judge of the Shmidtovskiy Court responsible for the applicant's case for breaches of procedural rules. The Board warned the judge that she may be dismissed from service if the breaches re-occurred.
30. On 16 March 2001 the Shmidtovskiy Court granted the applicant's claims in part.
31. On 21 May 2001 a public prosecutor of the Shmidtovskiy District appealed on behalf of the defendant.
32. On 11 October 2001 the Regional Court quashed the judgment and ordered a re-hearing of the case.
33. Meanwhile, on 23 October 2002, the applicant claimed from the Shmidtovskiy Court 200,000 roubles as compensation for the delays in the proceedings. On 10 November 2002 the Shmidtovskiy Court severed this claim from the main proceedings.
34. On 14 November 2002 the Shmidtovskiy Court granted the applicant's main claims in part.
35. On 2 April 2003 the applicant lodged an appeal against the judgment.
36. On 15 May 2003 the Regional Court quashed the judgment in part and passed a new judgment by which the applicant's claims were partly satisfied.
37. On 27 June 2003 the Shmidtovskiy Court closed the proceedings concerning the damage caused by the delays. The court found that there existed no law specifying how such actions should be entertained.
38. On 2 October 2003 the Regional Court quashed this decision on the ground that the Shmidtovskiy Court should not have considered an action directed against itself. The Regional Court decided that it will itself determine the court to deal with the action. These proceedings appear to be still pending.
39. During the proceedings the applicant also made a number of complaints to the Federal Ombudsman, the Ministry of Justice, the Government, the Parliament and the Constitutional Court. These authorities either referred her complaints to the judicial authorities of the Chukotka Autonomous Region or advised the applicant to do it herself.
40. Under Article 99 of the Code of Civil Procedure of 1964 (“CCivP”) in force at the material time, an action must be prepared for trial seven days after the action is lodged. If litigants are not located within the same town or territory, actions between them arising out of labour disputes must be examined by a court of the first instance within twenty days.
41. Under Article 284-1 of the CCivP, an appeal court must examine an appeal ten days after it is filed.
42. Section 18 of the Law “On the status of judges in the Russian Federation” of 26 June 1992, in force at the material time, established the Supreme Judicial Qualifications Board and qualifications boards of regional courts. The qualifications boards had the power to select candidates for judicial posts, to suspend or remove judges from office, to ensure judges' inviolability and to certify judges' professional skills. The functioning and specific powers of the qualifications boards were to be determined in special regulations.
43. On 13 May 1993 the Parliament passed “Regulations on Judicial Qualifications Boards”. The Regulations remained in force until 14 March 2002 when a new law on the same subject was adopted. Under section 12 of the Regulations, a qualifications board could:
“5. ... take a decision concerning the institution of criminal proceedings against a judge ..., the detention of a judge or his bringing to a court;
6. warn a judge to stop an activity incompatible with his position; suspend or terminate a judges' powers in cases [established by law];
7. examine [complaints] about a judge's activity or inactivity undermining the authority of the judicial power...”
44. Pursuant to section 14 of the Regulations, qualifications boards could receive information, necessary for their functioning, from presidents of courts and other judges, from law-enforcement agencies and other State bodies, from non-governmental organisations and public officials.
45. Pursuant to section 15 of the Regulations, if an application submitted to a qualifications board was within its competence, the board had to deal with it within 30 days. Three days after the board gave a decision, an extract from it had to be sent to interested parties.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86397
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOLODZIEJCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ireneusz Kołodziejczyk, is a Polish national who was born in 1954 and lives in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 22 October 2000 and 22 February 2003 the applicant served two terms of imprisonment imposed on him in separate sets of criminal proceedings.
On 17 January 2001 the Gdańsk Regional Prosecutor charged the applicant with 2 counts of unlawful possession of firearms, unlawful possession of explosives and theft of a driving licence. On the same day the Gdańsk District Court ordered his detention pending trial in view of the reasonable suspicion that the applicant had committed the offences with which he had been charged. It further held that the applicant might obstruct the proceedings and had regard to the severity of the penalty likely to be imposed. The court found that imposition of detention pending trial at the time when the applicant was serving a prison term would enable the prosecution to effectively control his contact with the outside world.
On 26 February 2001 the Gdańsk Regional Court dismissed an appeal by the applicant against the detention order. It held that keeping him in custody was justified by the severity of the likely penalty and the risk that he might tamper with evidence, given the substantial number of suspects in the case.
The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued in particular that his detention had been automatically extended by the courts.
In the course of the investigation, the applicant’s detention was extended on two occasions, namely, on 14 March and 3 April 2001.
On an unknown date in 2001 the Gdańsk Regional Prosecutor refused to allow the applicant a visit from his common-law wife. The applicant filed a complaint. On 26 April 2001 the Słupsk Regional Prosecutor refused to institute criminal proceedings in respect of the applicant’s complaint.
On 15 May 2001 the Gdansk Regional Prosecutor lodged a bill of indictment with the Gdańsk Regional Court. The applicant was charged with 2 counts of unlawful possession of firearms, unlawful possession of explosives and theft of a driving licence. The bill of indictment comprised 120 charges brought against 19 defendants. Other defendants were charged with numerous counts of robbery and armed robbery committed in an organised criminal group. However, the applicant was not charged with acting in such a group.
On 17 May 2001 the Gdańsk Regional Court extended the applicant’s detention until 31 October 2001, finding that it was necessary in order to prevent him – and his other 12 detained co-defendants – from evading justice or tampering with evidence.
On 16 October 2001 the Gdańsk Regional Court again extended the detention of the applicant and that of 9 of his co-defendants, considering that the grounds originally given for remanding him in custody were still valid.
The trial began on 28 December 2001. However, as of April 2002 the prosecution had still not completed the reading-out of the bill of indictment.
During the court proceedings the authorities extended the applicant’s detention on 26 September and 18 December 2002, 25 June and 17 December 2003, and 10 February 2004. The courts repeated the grounds previously given for the applicant’s continued detention. In particular, they referred to the complexity of the case, the volume of evidence and the severity of the likely penalty.
Between 30 December 2003 and 16 September 2004 the applicant was serving a prison sentence imposed in another set of criminal proceedings against him.
On June 2004 the trial court ordered the applicant’s release. It noted the charges against the applicant and the fact that the period of his detention had exceeded 3 years. The court held that the detention should be lifted.
By June 2005 the trial court had held over 150 hearings and heard evidence from more than 400 witnesses. However, all the hearings listed after 17 June 2005 had to be cancelled due to the long-term illness of one of the trial court judges. Subsequently, a new panel of judges had to be assigned to the case and the trial had to be restarted.
On 24 November 2005 the Regional Court considered that the case concerning the charges against the applicant and some of the charges against 4 of his co-accused should be examined separately. The case was subsequently examined by the Gdansk District Court.
On 20 July 2007 the District Court transferred the applicant’s case to the Gdansk Regional Court, which had meanwhile become competent to try the case.
It appears that the proceedings against the applicant are pending.
The relevant domestic law and practice concerning the imposition of detention during the judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


ITEMID: 001-114776
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DİSK AND KESK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient
JUDGES: András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre
TEXT: 4. On 29 April 2008 the applicants jointly notified the Beyoğlu district governor that they would be gathering before the Taksim Atatürk memorial on 1 May 2008 at 1 p.m. to celebrate Labour Day and commemorate their friends who had lost their lives during the demonstrations of 1 May 1977.
5. On 30 April 2008 the Beyoğlu district governor authorised a gathering at the requested location for representatives of trade unions only. The district governor specifically indicated that a demonstration on a larger scale at the said location was not authorised.
6. Subsequently, certain government authorities, including the Minister of the Interior and the Government’s spokesman, as well as the Istanbul Governor’s office, issued press statements, declaring that they were in possession of intelligence reports which precluded them from authorising any demonstration in Taksim Square, for security reasons. The authorities held that any demonstration held in Taksim on 1 May 2008 would be unlawful and unconstitutional on account of possible provocations and disruption of traffic and public order. They further stated that they were going to take extensive security measures on 1 May 2008, including shutting down certain schools in the nearby districts, stopping the operation of ferries and subways, blocking the roads leading to Taksim Square and deploying extra police for that day. As alternative locations, the Istanbul Governor’s office indicated four other squares for the demonstration, namely two on the European side and two on the Anatolian side of Istanbul.
7. On 30 April 2008 the first applicant lodged a complaint against the Governor of Istanbul with the Istanbul public prosecutor, accusing him of denying the trade unions their right to assembly in a discriminatory manner. The first applicant complained that there was no justification for denying them access to Taksim Square on Labour Day, when the same location was available for other large-scale demonstrations and celebrations (investigation no. 2008/20905).
8. At approximately 6 a.m. on 1 May 2008, members of the DİSK and KESK began gathering in front of the DİSK headquarters located in the district of Şişli for Labour Day celebrations. At around 6.30 a.m. the police asked the group to disperse, warning them that they were acting in violation of the Assemblies and Marches Act (Law no. 2911). The members of the group refused, arguing that they were merely waiting in front of the DİSK headquarters, which was a pedestrian area, and that they were not violating the said law in any way. The police, however, proceeded to disperse the group, by spraying them with pressurised water, paint and tear gas, both inside and outside the DİSK building.
9. Similar police interventions occurred over the next couple of hours with increasing intensity. Some of the demonstrators were injured as a result of the use of force by the police. While the injured demonstrators were trying to reach the nearby Şişli Etfal Hospital for medical care, they were chased by the police and were subjected to gas attacks even within the hospital premises. Some members of the DİSK were arrested.
10. At approximately 10.30 a.m. the group of demonstrators broke up of its own accord to forestall any further violence.
11. On 2 May 2008 the Chief of Şişli Etfal Hospital gave a statement to the police, stating that on 1 May 2008 around 20-30 demonstrators had entered the hospital and opened a banner. Subsequently, police officers had also entered the hospital premises in their pursuit and used a gas bomb in the hospital’s garden to neutralise the demonstrators. He further explained that one of the police officers had mistakenly sat on a gas bomb and exploded it in the police car parked at the entrance of the Emergency Service; as a result staff working in the Emergency Service as well as some of the patients had been affected. He concluded by stating that the gas bomb was not deliberately thrown in the hospital building.
12. On an unspecified date after 1 May 2008, the director of the DİSK, along with other persons, lodged a complaint with the Istanbul public prosecutor against various authorities, including the office of the Prime Minister, the Minister of the Interior, the Minister of Justice, the Istanbul Governor’s office, the Head of the Istanbul Security Directorate and the police officers involved in the incidents of 1 May 2008, accusing them of breach of the right to freedom of assembly and a disproportionate use of force (investigation no. 2008/59361). On an unspecified date, the public prosecutor issued a decision of lack of jurisdiction in connection with the complaint lodged against the Istanbul Governor and the Head of Istanbul Security Directorate. The case file was accordingly transferred to the Public Prosecutor’s Office at the Court of Cassation. Pursuant to the terms of Law no. 4483, the public prosecutor at the Court of Cassation sought authorisation from the Minister of the Interior to prosecute the Istanbul Governor and the Head of Istanbul Security Directorate. On an unspecified date, the Minister refused to do so. Consequently, on 8 April 2009 the public prosecutor decided not to proceed with the case. This decision was notified to the applicants’ lawyer on 16 April 2009. The applicant’s appeal lodged against this decision was further dismissed by the Supreme Administrative Court as the court held that pursuant to domestic legislation, no appeal was possible against the decision of 8 April 2009.
13. Regarding the complaint lodged against the Prime Minister, the Minister of the Interior, and the Minister of Justice, on 1 February 2009 the Istanbul public prosecutor delivered a decision of non-prosecution, holding that pursuant to the Constitution, the Prime Minister, the Minister of the Interior, and the Minister of Justice could not be held liable for their actions in the course of their duties. This decision was served on the applicants’ lawyer on 24 February 2009. The applicants’ appeal was rejected on 22 May 2009 by the Sincan Assize Court, which held that no objection could be lodged against the decision of the public prosecutor dated 1 February 2009.
14. On 5 May 2008 the representative of the first applicant handed to the Şişli public prosecutor an undetonated gas bomb belonging to the police force, found inside the DİSK headquarters following the events of 1 May 2008.
15. On 19 June 2008, upon a complaint lodged by the Istanbul Governor’s office, the Beyoğlu public prosecutor questioned the director of the DİSK in relation to the events that took place on 1 May 2008 (investigation no. 2008/9241). It appears from the documents in the case file that no prosecution was initiated against the applicants in relation to the events of 1 May 2008.
16. Article 34 of the Constitution provides:
“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.
...
The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”
17. Section 22 of Law No. 2911 prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares have to comply with security instructions and not disrupt individuals’ movements or public transport. Finally, Section 24 provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators are warned.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-58838
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF FOXLEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 34;Not necessary to examine Art. 6;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 3 April 1989 the Criminal Justice Act 1988 (“the 1988 Act”) entered into force. Under the 1988 Act, trial courts were empowered to make confiscation orders aimed at removing assessed benefits obtained through the commission of offences of which a person has been found guilty.
9. On 25 June 1992 the applicant was arrested and subsequently charged and committed for trial.
10. On 3 November 1993 the Snaresbrook Crown Court convicted the applicant of twelve counts of corruption committed between 11 December 1979 and 7 August 1984, when he was employed by the Ministry of Defence as an ammunition procurement officer. The court sentenced him to four years’ imprisonment under section 1 of the Prevention of Corruption Act 1906 on each of the twelve counts, to be served concurrently.
11. The court conducted an enquiry under the 1988 Act and found that the applicant had benefited from the commission of the offences in the amount of GBP 2,092,569.20. Pursuant to section 71 of the 1988 Act, a confiscation Order was made against him in the amount of GPB 1,503,301.80, the amount at which his realisable assets was assessed. This sum was to be paid within eighteen months. In default of payment the applicant was to be imprisoned for a further (consecutive) term of three years.
12. The applicant’s appeals against his conviction and sentence, as well as in relation to the amount and basis of calculation of the confiscation Order, were dismissed by the Court of Appeal on 6 February 1995. The applicant did not dispute before the Court of Appeal that he had realisable assets in excess of GBP 1.27 million.
13. On 4 December 1995 the Bow Street Magistrates’ Court issued a summons for the commitment of the applicant to custody for default in the payment of the amount due under the confiscation Order. The hearing on whether the applicant should be committed to custody for non-payment of the confiscation Order was adjourned at the request of the Crown Prosecution Service (“CPS”) pending an investigation into alternative methods of recovery.
14. On 8 August 1996, in connection with the enforcement of the confiscation Order, Ms S.D. was appointed as Receiver to realise the applicant’s property, including any property of the applicant held by third parties. The High Court, which appointed the Receiver under section 80(2) of the 1988 Act on application by the CPS and after the applicant had been given a further opportunity to comply with the confiscation Order, ordered that the Receiver’s powers were not to be exercised until the interests of the restrained properties had been determined.
15. On 2 September 1996, following an application on behalf of the Ministry of Defence in separate civil proceedings, the applicant was declared bankrupt. Ms S.D. was appointed as the applicant’s Trustee in Bankruptcy. This appointment was independent of her appointment as Receiver.
16. Following an ex parte application by the Receiver and Trustee in Bankruptcy, Ms S.D., the District Judge at Reading County Court ordered, on 27 September 1996, that:
“for a period of three months from the 27th day of September 1996 all postal packets (as defined by section 83 of the Post Office Act 1953) directed or addressed to the Bankrupt ... shall be re-directed, sent or delivered by the Post Office to [the Trustee in Bankruptcy’s address].”
17. The Order was made under section 371 of the Insolvency Act 1986 in favour of Ms S.D. in her capacity as the applicant’s Trustee in Bankruptcy. The application was based on the grounds that the Trustee in Bankruptcy was of the opinion that communications concerning remittances and useful information in respect of the applicant’s assets and liabilities which would better enable her to perform her duties might be forwarded to the applicant’s address and lost to the applicant’s estate if the Order were not made. The grounds invoked were supported by an affidavit sworn on 27 September 1996, which affirmed that it was necessary for postal packets to be intercepted immediately and without notice to the applicant to enable the Trustee in Bankruptcy properly to identify the applicant’s assets and sources of income.
18. An exception was made in the Order of 27 September 1996 for letters on which there was a specific direction, signed by the Trustee in Bankruptcy, that any such letter was to be delivered as addressed, if possible.
19. Between 27 September 1996 and 10 January 1997, a total of 71 letters addressed to the applicant were re-directed to the Receiver and Trustee in Bankruptcy. These letters included, inter alia, a letter from the Chief Inspector of the Ministry of Defence Police, two letters from the Legal Aid Board concerning civil proceedings to which the applicant was a party, a letter from the Police Complaints Authority, two letters from his legal advisers, the Legal Department of the National Council for Civil Liberties (later referred to as “Liberty”) relating to the proceedings before the European Commission of Human Rights, and affidavits and drafts made or prepared for use in the High Court in relation to the receivership proceedings.
20. Each of the letters mentioned above was copied to file before being forwarded promptly to the applicant.
21. In his letter of 28 November 1996 to the Receiver and Trustee in Bankruptcy the applicant expressed particular concern that apparently privileged material was being intercepted. On 2 December 1996 the Receiver and Trustee replied that no mail from the Police, Legal Aid, the National Council for Civil Liberties and the European Court of Human Rights would be opened in the future, as long as the sender’s names were clearly stamped on the envelopes.
22. Although the re-direction Order expired on 27 December 1996 it was only as from 18 January 1997 that the applicant began to receive his mail directly again. During that period there were two mail deliveries to the Trustee in Bankruptcy. One delivery was received on 30 December 1996, the other on 10 January 1997. The deliveries contained ten items of mail, none of which fell within the categories described above (see paragraph 19). A number of the items were however copied to file before being forwarded to the applicant.
23. On 25 February 1997 the applicant issued a summons for a stay of the receivership proceedings pending the determination of his application to the Commission. The hearing was listed for 16 June 1997 but was adjourned to 19 February 1998. On that date the High Court dismissed the application and confirmed that the receivership proceedings should continue. The applicant has not informed the Court of any subsequent developments in the receivership proceedings.
24. Section 371 of the Insolvency Act 1986 provides as follows:
“1. Where a bankruptcy order has been made, the court may from time to time, on the application of the official receiver or the trustee of the bankrupt’s estate, order the Post Office to re-direct and send or deliver to the official receiver or trustee or otherwise any postal packet (within the meaning of the Post Office Act 1953) which would otherwise be sent or delivered by them to the bankrupt at such place or places as may be specified in the order.
2. An order under this section has effect for such period, not exceeding three months, as may be specified in the order.”
25. Trustees in Bankruptcy have other statutory powers, which are more stringent than the power to apply for a re-direction order but which may nonetheless need to be used, in appropriate cases, if Trustees are properly to investigate the bankrupt’s affairs for the ultimate benefit of his creditors. In particular, under section 365 of the Insolvency Act 1986 a Trustee may obtain a warrant authorising him to seize property, books and/or records falling into the debtor’s estate. Furthermore, section 366 of the Act allows the court (on application by a Trustee) to summon a variety of persons before it to give an affidavit and/or produce documents.
26. A bankrupt owes a statutory duty, pursuant to section 333 of the Insolvency Act 1986, to give to the Trustee such information as to his affairs, attend meetings with the Trustee and do such other things as the Trustee may reasonably require for the carrying out of his relevant functions.
VIOLATED_ARTICLES: 8