ITEMID: 001-68605
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF OSINGER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: 8. The applicant was born in 1937 and lives in Mank/Austria.
9. A., the applicant's brother, died on 1 December 1988. He had been a farmer and the owner of a farm. On 23 December 1998 the competent court was informed about A.'s death and, subsequently, appointed a notary public as court commissioner (Gerichtskommissär).
10. On 22 and 23 February 1989 the applicant and eight other persons entitled to the estate of A. appeared before the notary public in Ybbs and made conditional declarations of acceptance of succession (bedingte Erbserklärung).
11. On 23 February, 28 March and in April 1989 three experts submitted opinions on the value of the farm.
12. On 28 July 1989 the applicant's sister M. argued that the farm was a hereditary one (Erbhof) within the meaning of the Agricultural Succession Act 1958 (Anerbengesetz) and filed an application to be appointed as its principal heir (Anerbin).
13. On 22 September 1989 an expert submitted his opinion and concluded that the farm should not be considered hereditary.
14. On 2 October 1989 the applicant requested to be appointed as principal heir.
15. On 28 December 1989 the Ybbs District Court (Bezirksgericht) found that the farm did not qualify as a hereditary one because it could not provide a living for five adults as required under the applicable law. Further, it found the declarations of acceptance to be valid and appointed all nine statutory heirs as heirs to A.'s estate (Einantwortungsurkunde) but dismissed the requests by the applicant and M. to be appointed principal heirs. On 9 January 1990 the applicant appealed.
16. On 21 February 1990 the St. Pölten Regional Court (Landesgericht) quashed the District Court's decision and remitted the case to it. It found that the issue whether the farm qualified as hereditary within the meaning of the Agricultural Succession Act 1958 had not been sufficiently determined. The other heirs appealed.
17. On 18 October 1990 the Supreme Court dismissed the appeals and upheld the Regional Court's finding.
18. On 31 December 1990 the District Court transmitted the file to the public notary for supplementary investigations. On 28 February 1991 an expert submitted an additional opinion.
19. On 8 April 1991 the District Court decided to request an additional expert opinion, which it obtained on 12 September 1991.
20. On 17 October 1991 the District Court, having heard an agricultural expert, found that the farm qualified as a hereditary one under the Agricultural Succession Act 1958. Five parties appealed.
21. On 4 March 1992 the Regional Court dismissed the appeals and, on 27 Mai 1992, the Supreme Court dismissed an appeal on points of law and confirmed that the Agricultural Succession Act 1958 was applicable.
22. Subsequently the District Court held hearings on 7 September and 9 November 1992. It heard several agricultural experts in order to clarify whether M. or the applicant qualified as principal heir. On 13 January and 11 March 1993 the court obtained further expert opinions.
23. From April to June 1993 forest pest control measures were carried out in the forest belonging to the farm. As the parties of the hereditary proceedings did not reach an agreement, an estate curator (Verlassenschaftskurator) was appointed and the succession proceedings were suspended.
24. On 8 September 1993 the District Court dismissed the applicant's request to be appointed as principal heir. It found that he did not qualify as such because he already owned part of another hereditary farm, and appointed M. as principal heir. The applicant appealed and submitted a new private expert opinion.
25. On 29 December 1993 the Regional Court allowed his appeal and remitted the case to the District Court. It found that there was not sufficient evidence to conclude that the applicant did not meet the requirements as principal heir.
26. On 7 March 1994 the District Court transferred the file to the public notary for supplementary investigations. On 27 April 1994 additional expert opinions were submitted. On 13 May 1994 the applicant commented thereupon.
27. From September to November 1994 new forest pest control measures were carried out in the forest belonging to the farm. Again an estate curator was appointed and the succession proceedings were suspended. On 17 November 1994 the District Court ordered the public notary to submit his final submissions.
28. On 2 February 1995 the District Court, having heard additional experts, again dismissed the applicant's request and appointed M. as principal heir. The applicant appealed.
29. On 12 July 1995 the Regional Court quashed the decision and remitted the case to the District Court. On 10 August 1995 the file was transmitted to the notary public.
30. On 5 February 1996 the District Court held a further hearing. Thereafter, it obtained further expert reports and the applicant commented repeatedly on these reports and repeatedly requested further opinions.
31. On 12 August 1997 the applicant submitted a private expert opinion and requested to discuss it at an oral hearing. The court-appointed expert commented on the private expert opinion.
32. On 13 July 1998 the court held another hearing in which the applicant asked to hear further experts.
33. On 21 October 1998 the District Court dismissed the applicant's request to be appointed as principal heir and appointed M. instead. It refused to hear further experts.
34. On 19 March 1999 the Regional Court dismissed the applicant's appeal. It confirmed the District Court's refusal to hear further experts finding that the court-appointed expert had commented in detail on the private expert opinion submitted by the applicant and that the latter could not impugn the plausibility of the opinion of the court-appointed expert.
35. On 10 June 1999 the Supreme Court dismissed the applicant's appeal on points of law. This decision was served on the applicant's lawyer on 14 July 1999.
36. The Non-Contentious Proceedings Act 1854 (Außerstreitgesetz) does not contain any specific provision on hearings in succession proceedings. Case-law and opinion of writers consider that hearings under this act are not public (see Fasching, Lehrbuch des österreichischen Zivilprozessrechts, Wien, 1984, marginal number 682; Gögl, Der Beweis im Verfahren außer Streitsachen, ÖJZ 1956, 344 (347)).
37. On 1 January 2005 a new draft of the Non-Contentious Proceedings Act entered into force and repealed the 1854 Act. As general rules, Sections 18 and 19 of the 2005 Act now provide for oral and public hearings in non-contentious proceedings, and their conduct lies within the discretion of the court. Section 162 provides for oral hearings in succession proceedings on the determination of an heir (Verfahren über das Erbrecht), in particular. Section 185 stipulates that, with the exception of proceedings on the determination of an heir (Section 162), there are no public hearings in succession proceedings (Verlassenschaftsverfahren).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-99610
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VELIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1964 and previously resided in the town of Baku, in the Republic of Azerbaijan.
8. He is currently serving a sentence of imprisonment in penitentiary establishment IK-4 in the town of Vyazniki of the Vladimir Region, Russia.
9. On 26 February 2004 the applicant was arrested on suspicion of having taken part in multiple episodes of organised armed robbery, along with eight other people.
10. Since that date he has remained in custody.
11. On 28 February 2004 the Frunzenskiy District Court of the town of Vladimir (“the District Court”), having heard submissions from a prosecutor and from the applicant in person, authorised the applicant's arrest and pretrial detention.
12. The court examined the materials of the case file and noted that the applicant was suspected of having committed a series of particularly serious crimes, had no fixed place of residence, work or registration in Russia, that he was a foreign national, that there were grounds to believe that being at large the applicant might flee from justice or continue his criminal activity, and that the application of less drastic preventive measures was generally not justified.
13. It does not appear that the applicant brought appeal proceedings in respect of this detention order.
14. On 2 March 2004 the charges were brought against the applicant on suspicion of his involvement in multiple episodes of organised armed robbery.
15. Subsequently, on an unspecified date, the applicant's case was merged with other cases which concerned the applicant's criminal activity in the Vladimir, Ivanovo and Saratov Regions.
16. By order of 22 April 2004 the District Court, having heard submissions from the applicant, his counsel and the prosecutor, extended the applicant's detention until 6 July 2004, for a total period of 4 months and 10 days.
17. The court mentioned the same reasons as in the order of 28 February 2004, adding that the applicant could put pressure on other participants in the criminal case, attempt to eliminate evidence and otherwise impede the proceedings.
18. The decision also noted the need to finalise investigative actions in the Vladimir, Ivanovo and Saratov Regions. The prosecutor estimated that these actions could take at least two months and ten days. The court examined the materials in the case file as collected so far and agreed with the investigator's reasons.
19. It does not appear that the applicant brought appeal proceedings in respect of this decision.
20. On 6 July 2004 the District Court extended the pre-trial detention until 6 September 2004, for a total period of 6 months and 10 days. The court noted that the applicant had been accused of a serious crime, that he was unemployed, and that from the case-file materials it followed that further investigative actions were required.
21. According to the court, there was reason to believe that being at large the applicant might flee, continue his criminal activity or impede the criminal proceedings.
22. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.
23. On 25 August 2004 further charges were brought against the applicant on account of other alleged criminal activity on his part.
24. On 6 September 2004 the applicant's pre-trial detention was further extended by the District Court, this time until 6 November 2004, for a total period of 8 months. The court gave reasons essentially similar to those mentioned in its previous decisions.
25. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.
26. In a decision dated 22 October 2004 the District Court again extended the applicant's pre-trial detention, this time until 6 December 2004, referring to the same reasons as in its previous decisions. The total period of the applicant's authorised detention now amounted to 9 months and 10 days.
27. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.
28. On 6 December 2004 the District Court extended the pre-trial detention until 6 February 2005, for a total period of 11 months and 10 days. The court justified the decision with reference to essentially the same reasons as previously.
29. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.
30. It appears that on 11 January 2005 the investigation in respect of nine co-accused in the case, including the applicant, was over and the prosecution authority sent the bill of indictment, along with the case file, to the trial court for examination on the merits.
31. On 27 January 2005 the Vladimir Regional Court (“the Regional Court”) carried out a preliminary examination of the case and, having detected various shortcomings and defects in the investigation, decided to return the file to the prosecutor.
32. Those defects included the following: failure to notify the accused of their rights in relation to the jury trial procedure; failure to decide whether there was any need to split the case in view of the fact that some co-accused had opted for a jury trial procedure; and lastly certain inconsistencies and shortcoming in the factual conclusions made by the prosecution in the bill of indictment.
33. The court noted that all accused in the case should remain in detention as there were no reasons to release them. The court did not set any specific time-limit for their detention. The decision referred to all accused collectively, without analysing their circumstances individually. In taking this decision the court relied on Article 237 of the Code of Criminal Procedure.
34. Upon expiration of the ten-day time-limit for appeal on 3 February 2005, the court sent the case file back to the prosecutor's office.
35. On 4 March 2005, having introduced necessary corrections and amendments, the prosecution sent the corrected case file to the trial court for examination on the merits.
36. On an unspecified date, the trial court decided to hold a preliminary hearing in the case on 28 March 2005. It does not appear that any formal decision was taken as regards the applicant's detention on remand.
37. On 10 March 2005 the applicant, through his lawyer, applied for release. The request referred to the alleged lack of any lawful basis for his continued detention as of 6 February 2005.
38. This request was examined and rejected by the Regional Court at the preliminary hearing on 28 March 2005. The court decided that the investigation should be suspended because one of the accused, Mr D.G. K., was seriously ill, while one of the others, Mr A.A. G., could not take part in the proceedings as he was being tried in a different set of proceedings for a different offence. The court noted that it was impossible to try the applicant separately from the other coaccused and that the six month time-limit, as set out in Article 255 § 3 of the Code of Criminal Procedure, was not breached.
39. In respect of the lawfulness of the applicant's detention on remand, the court noted that until 11 January 2005, the date on which the case had been sent to the trial court for examination on the merits, the applicant had been regarded as “detained pending investigation” and that after that date he was “detained pending trial”. In view of the trial court's decision of 27 January 2005 remitting the case to the prosecution as of 3 February 2005, the applicant was again detained “pending investigation”. On 4 March 2005 the case was again sent to the trial court and the applicant detained “pending trial”. The court then gave the following reasoning:
“Under Part 2 of Article 255 of the Code of Criminal Procedure, if a preventive measure in the form of detention on remand is chosen ..., then the term of the detention counted from the date on which the case reached the court and until the verdict has been given may not exceed six months, except for cases explicitly mentioned in Part 3 of the above-mentioned Article. The norm in question means that as of the date on which the case reached the court the accused is counted as being detained pending trial.
Under Part 3 of Article 255 of the Code of Criminal Procedure, the court in charge of the case may, upon expiry of the above-mentioned six months, extend the term. At the same time, such an extension is possible only in cases involving serious or particularly serious offences, and each time for a term not exceeding three months.
At the time when the case reached the court that is on 4 March 2005 [the applicant] was counted as being detained pending trial. The six-month time-limit mentioned in Part 3 of Article 255 has not expired to date. The court finds no violation of the domestic law in this respect.”
40. The decision of 28 March 2005 was contested by the applicant, through his lawyer, before the Supreme Court on 7 April 2005.
41. On 20 June 2005, that is seventy-four days thereafter, the Supreme Court of Russia (“the Supreme Court”) examined and rejected the complaint. The decision referred to all the accused collectively, without analysing their circumstances individually. In its relevant part, the court ruling stated as follows:
“[the applicant and eight others] are accused by the investigation of commission of crimes, including serious and very serious offences.
The circumstances which served as a basis for the preventive measure in the form of detention did not change. Having noted its reasons in the decision, the court came to the conclusion that the need for the preventive measure in respect of [the applicant and other co-accused] had not ceased to exist, and that there had been no reason to release him or to choose a milder preventive measure, which is why the court had taken the decision ...
This court has no reason to differ.”
42. On 20 June 2005 the Regional Court resumed the proceedings in the case and decided to hold a preliminary hearing on 11 July 2005.
43. In view of the fact that the six-month time-limit set out in Part 3 of Article 255 of the Code was about to expire, on 11 July 2005 the Regional Court extended the applicant's detention for three months until 18 October 2005. The court gave the same reasons as previously.
44. The decision of 11 July 2005 was contested by the applicant through his lawyer before the Supreme Court on 18 July 2005.
45. On 15 September 2005, that is two months and five days later, the Supreme Court examined this appeal and decided to uphold the decision of 11 July 2005. The court essentially relied on the fact that the circumstances relevant in the applicant's situation had not changed and that the proceedings could not be finalised “for objective reasons”. Again, the court referred to all the accused collectively, without analysing their circumstances individually.
46. On 19 July 2005 the Regional Court yet again carried out a preliminary examination of the case and decided to return the case to the prosecution. The court ordered an additional investigation to be carried out, having spotted a number of defects in the work of the investigator, including multiple breaches of the rights of the accused.
47. By the same decision the court decided to leave the applicant's preventive measure unchanged. The court referred to all the accused collectively, without analysing their circumstances individually. It gave the following reasoning:
“... Deciding on the question of the preventive measure in respect of all the accused, the court is of the view that they are accused of committing a few crimes in the categories of serious and especially serious offences, do not have any fixed abode in the Vladimir Region, and according to the bill of indictment had committed crimes as part of a criminal group, and therefore the preventive measure imposed on them should be left unchanged.”
48. The decision of 19 July 2005 was contested by the applicant through his lawyer in the Supreme Court on 25 July 2005.
49. On 6 October 2005, that is two months and eighteen days later, the Supreme Court examined and rejected the appeal. The court referred to all the accused collectively, without analysing their circumstances individually. It upheld the decision of 19 July 2005 in full, having noted that:
“... the grounds for choosing the preventive measure in the form of detention in respect of [the applicant] had not changed; the need for its application had not ceased ...”
50. On 2 September 2005 the District Court, whilst the case was still pending with the investigator, authorised the applicant's detention for twenty days more, until 23 September 2005. It indicated the same reasons for the detention as in the previous decision. In particular, it noted:
“The extension of the term of detention of [the accused] is justified by objective reasons and is well-founded. [The applicant] is accused of the commission of a number of crimes, including very serious offences that were highly dangerous to society, and has no fixed place of residence in Russia; this is why there are reasons to believe that if at large he may continue his criminal activity, abscond from the investigative bodies or impede the investigation in the case. In these circumstances, there are no grounds for a change in the preventive measure or for its cancellation ...”
51. On 5 September 2005 the applicant, through his lawyer, complained to the Regional Court about the decision of 2 September 2005.
52. On 4 October 2005 the Regional Court upheld the decision of 2 September 2005. The court noted that the applicant's detention on remand was lawful and that:
“... the impossibility of applying to [the applicant] a different, milder, preventive measure was justified in the court decision on several occasions and the circumstances which served as a basis for confinement of [the applicant] have not become obsolete [since then] ...”
53. On 22 September 2005 the Regional Court, whilst the case was still pending with the investigator, further extended the applicant's detention, this time until 1 January 2006.
54. The decision of 22 September 2005 was contested by the applicant through his lawyer on 23 September 2005.
55. On 8 December 2005 the Supreme Court decided to uphold the decision of the Regional Court dated 22 September 2005, having noted that “[the applicant] had been accused of a number of crimes, including serious and very serious offences” and that the applicant's detention on remand had been, and remained, lawful and justified.
56. On 11 November 2005 the prosecutor finalised the investigation and referred the case to the trial court for examination on the merits.
57. On 5 December 2005 the Regional Court decided to hold the first preliminary hearing of the case. It rejected the applicant's request for release and decided that the applicant should remain in detention, relying essentially on the same reasons as previously.
58. On 13 December 2005 the applicant through his lawyer contested the decision of 5 December 2005 in the Supreme Court.
59. On 15 December 2005 the court hearing was delayed until 22 December 2005 with reference to the absence of co-accused D.G. K. and his lawyer.
60. On 22 December 2005 the hearing resumed. The court decided to continue the examination of the case on 12 January 2006 because six defence lawyers were busy in other sets of proceedings.
61. On 12 January 2006 the court decided to postpone further examination of the case because of the illness and absence of co-accused D.G. K. until 23 January 2006.
62. The hearing of 23 January 2006 was again postponed because of the absence of co-accused D.G. K., some witnesses and one defence lawyer.
63. The hearing scheduled for 25 January 2006 was cancelled and postponed with reference to the illness of the applicant's counsel.
64. On 1 February 2006 the hearing resumed, but later it was decided to postpone it again, this time with reference to the inability of one of the defence lawyers to continue on the next day.
65. On 3 February 2006 the hearing resumed. At the end of the hearing, it was decided to continue on 9 February 2006, since in between these two days there were some public holidays, and one of the defence lawyers as well as one translator were busy in a different set of proceedings.
66. The hearing of 9 February 2006 took place as planned. At the end of it, the court decided to continue the examination of the case on 14 February 2006.
67. On 14 February 2006 the examination of the case resumed.
68. The next hearing took place on 27 February 2006, since the applicant's lawyer, one of the translators and yet one other defence lawyer were busy and could not attend earlier.
69. The hearing of 27 February 2006 took place as planned.
70. On 3 and 6 March 2006 the hearings resumed.
71. The hearings scheduled for 9 and 17 March 2006 did not take place because of the absence of one of the defence counsel.
72. On 22 March 2006 the Supreme Court upheld the decision of 5 December 2005 (see paragraph 58 above), yet again referring to all the accused without analysing their circumstances individually.
73. On 21, 22 and 23 March 2006 the trial court hearings resumed.
74. On 27 March 2006 the prison authorities failed to escort co-accused A.A. G. to the courtroom and the court had to adjourn the hearing of the case until 3 April 2006.
75. The hearings of 3 and 6 April 2006 did not take place as one of the defence counsels was ill.
76. The hearings of 11, 12, 14 and 24 April 2006 did not take place owing to the illness of one of the co-accused and the unavailability of one of the translators and three defence lawyers, including the applicant's counsel.
77. The examination of the case resumed on 26, 27 and 28 April 2006.
78. On 4 May 2006 the court was unable to continue owing to the illness of one of the defence counsel. It was decided to adjourn the hearing until 12 May 2006.
79. On 12 May 2006 the Regional Court extended the applicant's detention for another three months, until 14 August 2006. The court again referred to the same reasons as in previous decisions.
80. The court could not continue the examination of the merits of the case owing to the absence of one of the translators who was busy elsewhere.
81. On 17 May 2007 the hearing of the case resumed.
82. On 17 May 2006 the applicant contested the decision of 12 May 2006.
83. The decision of 12 May 2006 was upheld by the Supreme Court on 27 July 2006, again repeating the same reasons.
84. On 25 July 2006 the Regional Court ordered the extension of the applicant's detention for another three months, until 14 November 2006. The court again mentioned the same reasons as previously, having rendered a decision in respect of a number of co-accused in the case. In response to the applicant's argument about poor conditions of detention, the court noted that the applicant had failed to present any evidence of the alleged conditions.
85. On 31 July 2006 the decision of 25 July 2006 was contested by the applicant.
86. On 19 October 2006 the Supreme Court rejected the appeal. It also essentially dismissed the assertion about poor conditions of detention as unsubstantiated.
87. On 7 November 2006 the Regional Court, in a decision collectively referring to a number of co-accused, including the applicant, again extended the applicant's detention on remand, this time until 14 December 2006.
88. On 14 November 2006 the applicant, along with eight other coaccused, was found guilty by the Regional Court of having taken part in aggravated robbery, participation in a criminal gang, and illegal storage, trafficking and use of firearms, and was sentenced to twelve years and six months of imprisonment. The court established that the applicant and the co-accused, acting as a criminal gang, had robbed trucks by disguising themselves as police officers and using real firearms to scare the drivers. They had subsequently sold the stolen property at local markets. The body of evidence included, among other items collected in various regions of Central Russia, oral and written submissions given by over forty witnesses and nine victims.
89. The judgment of 14 November 2006 became final after it was upheld on appeal by the Supreme Court on 21 June 2007. It appears that the applicant raised an argument concerning the conditions of his detention on remand, but the court rejected it as irrelevant.
90. Since 26 February 2004 the applicant has remained in custody.
91. Between that date and 4 March 2004 the applicant was detained in a Temporary Detention Wing of the Department of the Interior of the town of Vladimir.
92. Between 4 March 2004 and 31 August 2007 he was held in pre-trial detention centre IZ-33/1.
93. Since 31 August 2007 he has been detained in penitentiary establishment IK-4.
94. The applicant submitted that he had been detained in cells nos. 39, 19, 55, 36 and 32: cell no. 39 measured thirty-two square metres with twenty-four sleeping places and thirty-five to forty inmates at all times; cell no. 19 measured twenty-four square metres, had thirteen sleeping places and contained fifteen to seventeen inmates; cell no. 55 measured fifty-six square metres, had thirty-five sleeping places for the total number of inmates ranging from thirty-two to sixty-two; cell no. 36 measured forty-eight square metres, had thirty-five sleeping places and contained thirty-five to forty inmates; cell no. 32 measured forty-eight square metres, had thirty sleeping places for no more than thirty inmates.
95. In all cells toilets were situated close to the dining table and were very dirty. No toilet accessories, such as toilet paper, toothpaste, toothbrushes or toilet soap, were provided by the prison administration. There was no ventilation and many inmates were heavy smokers. The air in the cells was very humid. The walls in all cells were infested with mice, lice and insects. There was furthermore no proper day-time light so that it was impossible to read and write. Each cell was provided with one bucket of warm water per day. It was possible to take a fifteen-minute shower once a week. The inmates had no access to clean water and had to drink tap water. The cells were not cleaned. The prison walks took place within a limited space almost entirely covered by a roof.
96. The Government commented only on the period starting from 15 December 2004.
97. As of that date and until 31 August 2007 the applicant was detained in cell no. 55 measuring 46.68 square metres and equipped with 16 sleeping places. The Government submitted a certificate dated 19 March 2008, in which the head of prison administration and a senior inspector certified that there had been between 12 and 16 inmates in the cell at the relevant period of time. At the same time, they conceded that the cell had been “somewhat overcrowded”.
98. The applicant was provided with an individual sleeping place and bedding. Cell no. 55 had two glazed windows which let daylight through. According to the Government, the toilet in the cell was partitioned from the rest of the living area, and there was a regular water supply and heating in the cell. The applicant was fed three times a day and had the possibility of taking a one to two hour walk once a day.
99. In a letter dated 27 March 2008 addressed to the Court the head of the Vladimir Regional Department of the Federal Service of Execution of Sentences, submitted that, at the time of the applicant's detention, facility IZ33/1 had been overcrowded, but argued that such overcrowding had been insignificant and offered to pay the applicant 4,085 Russian roubles (RUB) in compensation for any damage suffered.
100. Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).
101. Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide day-time and night-time illumination.
102. Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia.
103. Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower.
104. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with implementation of the “Pre-trial detention centres 2006” programme.
105. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.
106. The programme mentions pre-trial detention centre IZ-33/1 among those affected. In particular, the programme states that, on 1 July 2004, the detention centre had a capacity of 507 inmates and in reality housed 1,009 detainees.
107. Since 1 July 2002, criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the “CCrP”).
108. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).
109. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
110. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
111. After arrest the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9).
112. From the time the prosecutor sends the case to the trial court, the defendant's detention is “before the court” (or “pending trial”). The period of detention “pending trial” is calculated up to the date on which the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
113. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10).
114. Under Article 237 of the Code, the trial judge can return the case to the prosecutor for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. The judge must require the prosecutor to comply within five days (Article 237 § 2) and must also decide on a preventive measure in respect of the accused (Article 237 § 3). By a federal law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the accused's detention with due regard to the time-limits in Article 109 of the Code.
115. The relevant extracts from the General Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the 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 ... Largecapacity 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
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-85633
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KONEWKO v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Timothy Konewko, is a British national who was born in 1950 and lives in North Somerset. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 1 November 2000. In May 2001 the applicant applied for widows’ benefits. On 18 July 2001 the applicant was informed that his claim had been disallowed as he was not a woman.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-117682
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF KOROBOV AND OTHERS v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicants live in Tallinn, except for the fourth applicant who lives in Kiviõli.
7. The Bronze Soldier, originally named “Monument to the Liberators of Tallinn”, was unveiled on 22 September 1947, on the third anniversary of the entry of the Soviet Red Army into Tallinn. It was erected in Tõnismägi, central Tallinn, above a small burial site of Soviet soldiers’ remains reburied in April 1945. The monument consisted of a statue of a soldier in a Second World War-era Red Army military uniform set against a stone background.
8. From 2004 onwards demands for the removal or relocation of the Bronze Soldier intensified. Also, on 22 September (the anniversary of the entry of the Red Army into Tallinn in 1944) and 9 May (Soviet Victory Day in the Second World War), crowds of mainly Russian speakers, including veterans and younger people, gathered at the monument. From 2006 onwards in particular, there began to be instances of confrontation in the vicinity of the monument, which the police were able to keep under control. On some occasions the monument was smeared with paint.
9. In early 2007 the Protection of War Graves Act (Sõjahaudade kaitse seadus) was enacted by the Riigikogu (the Estonian Parliament) and provided for the reburial of remains and relocation of monuments in cases where war graves were located at unsuitable sites. The Bronze Soldier was a prominent issue in the electoral campaign ahead of the parliamentary elections on 4 March 2007.
10. During the night of 25-26 April 2007 the monument’s defenders were removed by police from the square where the Bronze Soldier was located, and the area was cordoned off. A large tent structure was erected over the monument and the graves in preparation for the exhumation of the remains of the Soviet soldiers. By the evening of 26 April 2007 a large group of people, mostly Russian speakers, had gathered at Tõnismägi and expressed their discontent with the Government’s actions. Shouting “Shame!” and “Fascists!” they refused to comply with police orders and some attempted to break through the police cordon. The group turned more violent and started throwing stones and empty bottles at the police. The police forced the protesters out of Tõnismägi. The crowd then started committing acts of vandalism and looting shops and buildings in neighbouring streets. There were clashes with the police, who in response used truncheons, rubber bullets and plastic handcuffs. A large number of people were arrested. According to some sources approximately a third of those detained were ethnic Estonians; ethnic Estonians were also among those charged with looting and theft.
11. Early in the morning of 27 April 2007 the Government decided to move the monument from Tõnismägi, and a few days later it was re-erected in a military cemetery. On the evening of 27 April 2007 protesters returned to Tõnismägi. The police again cordoned off the area and carried out arrests, this time within a wider radius of the monument’s former location. Disorder and vandalism continued for a second night. Although the protests were unauthorised, there was no formal ban on visiting the city centre. Nevertheless, on 27 April 2007 the Government, through the mass media and messages sent to people’s e-mail addresses and mobile phones, asked people to stay at home and not to respond to provocation.
12. According to the information provided by the Government, on 26 April 2007 there were 7,000 to 8,000 people in the streets of Tallinn. On 27 April 2007 4,000 to 5,000 people took part in the riots in Tallinn, and on 28 April 2007 the number of rioters was 3,000 to 4,000. Approximately 1,500 officers participated in police operations in Tallinn, but considering the fact that at any time some were off duty, some were in reserve and some were guarding important facilities, during the peak period there could have been approximately 1,000 officers protecting public order in the streets in Tallinn.
13. According to the official sources referred to by the applicants, in total more than 1,160 people were arrested (of whom 500 were Estonian nationals, nearly 100 were Russian nationals and more than 300 were persons of undetermined citizenship). One person was stabbed to death and 156 were injured (including twenty-nine policemen). The police recorded 148 cases of vandalism. By 18 May 2007 the authorities had opened sixty-five criminal cases involving 300 suspects, mostly concerning serious breach of public order and disregard of lawful orders given by representatives of the state authority.
14. The first applicant was arrested on 27 April 2007 at 11.30 p.m. in Viru Street in the city centre. He states that he was kicked to the ground by the police officers and made to lie face down on the road, where there was a lot of broken glass. He was handcuffed and taken to a storage facility at the port (Dterminal). According to the applicant, the police officers refused to tell him where he was being taken or to give any reasons for the arrest.
15. By 1 a.m. on 28 April 2007 about 350 people were being held at Dterminal, a storage facility which measured 19 metres by 6 metres. The applicant was told to squat against the wall.
16. The first applicant submitted that detainees who attempted to stand up because their legs had gone numb or as a protest were kicked to the ground, hit with rubber truncheons and beaten. According to the first applicant he was struck so hard that he fell to the floor. He claimed that he was repeatedly beaten with truncheons and kicked in the stomach by police officers wearing heavy boots.
17. According to a medical report issued on 2 May 2007 and submitted by the first applicant, it appears that he had a haematoma and was diagnosed with pelvic contusion in the right side of the lumbo-sacral region. A medical record was also submitted to the domestic authorities to substantiate his criminal complaint (see paragraph 45 below).
18. The applicant also submitted to the Court a written statement from Zh., dated 28 May 2008, concerning their arrest and detention. According to Zh., the first applicant was well known to him. Zh. confirmed that during their detention in D-terminal, the first applicant had stood up in order to stretch his legs. A plain-clothes person had told him to sit or to lie down (“Maha!” in Estonian meaning “Down!”). The first applicant inquired on what basis he was being given those orders, but instead of a response he was pushed down and kicked while down on the floor. He was kicked in the stomach.
19. The police kept the first applicant’s personal details and released him at 4 a.m. on 28 April 2007 without charge. According to the applicant no explanations or grounds for his detention were given, his rights were not explained to him and he was not given any official record of his detention.
20. The second applicant, who was a minor at the time, states that he was arrested on 27 April 2007 at 7.30 p.m. in Tuukri Street. After witnessing the arrest of three individuals aged approximately 15-16 who were walking in front of him in the street, the second applicant became scared and attempted to run away but was caught by a police officer who threw him on to the ground, held him down and tied his hands with plastic straps. He was taken by bus to D-terminal without being given any reasons for his arrest or being allowed to call his mother. About three hours later he was asked how old he was, after which his handcuffs were removed. Nevertheless, it was another two hours until the police officers called his mother, who was working a night shift and therefore could not come and collect him. He was taken home at 4 a.m. on 28 April 2007.
21. As submitted by the third applicant, he was arrested on 27 April 2007 at 2 a.m. on the corner of Viru Street and Pärnu Street on his way home after a date with his girlfriend. He was approached by police officers, ordered to lie on the ground and handcuffed. At 3 a.m. on 27 April 2007 he was taken to Rahumäe Detention Centre. He was searched and, allegedly without being told his rights or allowed to make a phone call, placed in a cell designated for four inmates where there were soon to be twenty.
22. According to a report on the detention of the third applicant as a suspect, drawn up on 27 April 2007, he had been arrested at 3 a.m. His rights and obligations were explained to him, including the right to be assisted by counsel and to make complaints, and this was confirmed by his signature. The report also contained the third applicant’s request to call his mother, as well as the statement that he was suspected of a serious breach of public order. It was further noted that there were grounds to believe that he could continue to breach public order if released.
23. According to a report drawn up by a senior police inspector, I.Z., who had arrested the applicant, he had been arrested because he had participated in a serious breach of public order involving active violence, and had also incited others present to commit similar offences. He had had to be arrested to prevent him from continuing with this activity.
24. On 27 April 2007 from 9 p.m. to 9.15 p.m. the third applicant was interviewed by a prosecutor as a suspect of a serious breach of public order. The record of the interview states that the applicant explained that he and his girlfriend had gone to see what was going on around the Bronze Soldier on 26 April 2007 at 10.30 p.m. and after that they were walking around in the city centre. He had done nothing when he was arrested on 27 April 2007 at around 3 a.m. According to the third applicant he had been questioned in Estonian without an interpreter. He was released at 10.47 p.m. on 27 April 2007. He left with a prohibition on leaving his place of residence.
25. On 12 October 2007 the criminal investigation in respect of the third applicant was terminated because it could not be established that an offence had been committed.
26. According to the fourth applicant’s submissions, he was watching the protest on the evening of 27 April 2007 in Kaarli Avenue. At 10.30 p.m. the policemen started firing at the crowd with rubber bullets. One of the bullets hit the fourth applicant’s right arm. He was subsequently hit on the head with one or more truncheons, causing a serious wound. He was then hit on the knee, which caused him to fall to the ground. His arms were bound and he was thrown into a car. He was not allowed to make a phone call or told his rights or the reasons why he had been arrested. His requests for first aid were ignored. He was taken to Dterminal, where he started to lose consciousness. Only at this point was his head bandaged. When he started to feel worse, a nurse examined him and advised that he should be taken to hospital.
27. According to a medical report submitted to the Court he arrived at the hospital at 11.30 p.m. on 27 April 2007. He was diagnosed with a haematoma on his skull. A medical report was also submitted to the national authorities to substantiate the fourth applicant’s criminal complaint (see paragraph 45 below).
28. The fourth applicant submitted to the Court a written statement from N.R., dated 29 February 2008, concerning the use of force by law-enforcement officers at Kaarli Avenue. According to N.R.’s statement, on 27 April 2007 at about 8 p.m. he had gone to Kaarli Avenue in the capacity of reporter, carrying a camera and also a reporter’s card. He stayed there until 10 p.m. At about 9.45 p.m. policemen with special gear, equipped with helmets, shields and truncheons rushed at the gathered people. The people who had started to run away clashed with a “special squad” of policemen. It was the onlookers who were the first to run up to the “special squad”, who handled them roughly. The people were pushed back and shouted at “Back!” and “Down!” If they resisted, that is did not drop to the ground, they were beaten with truncheons without warning, even though they were not displaying any signs of aggression. They were kicked to the ground, their hands were bound behind their back and they were again bludgeoned with truncheons. Even those who chose to submit were bound and sometimes hit. From time to time officers of the “special squad” went for one person in a group of two or three. The fourth applicant is not mentioned in N.R.’s statements.
29. By a decision of 25 May 2007 the Põhja Police Prefecture, in misdemeanour proceedings, fined the fourth applicant 420 kroons (EEK, corresponding to approximately twenty-seven euros (EUR)) for a breach of public order. According to this decision it had been established that on 28 April 2007 at 11.25 p.m., the night after he had sustained the injury described above, the fourth applicant had brawled and had thrown a lit rocket in the street in the centre of Tallinn. He did not appeal against the decision.
30. The fifth applicant stated that he had been with some friends near Harju Hill at 9.30 p.m. on 27 April 2007 when he was suddenly attacked by police officers. He was kicked to the ground and three officers started hitting him on the head with truncheons and kicking him in the head. His arm was broken as he tried to protect his head with his arm. He was taken to Dterminal and made to squat without being allowed to stand up. According to the applicant, detainees who tried to stand up were severely beaten. Although the fifth applicant complained of pain in his arm, he was not given any medical treatment. He was not told why he had been detained; nor was he allowed to make a phone call or told his rights. He was released at 5.30 a.m. the next day.
31. According to a medical report submitted to the Court, the fifth applicant arrived at the hospital at 12.26 p.m. on 28 April 2007 and was diagnosed with a fractured forearm. A medical report was also submitted to the national authorities to substantiate his criminal complaint (see paragraph 45 below).
32. The fifth applicant also submitted to the Court written statements from Z. and K., both dated 2 June 2008, describing the circumstances of his arrest and the violence used by the police officers against him.
33. According to Z.’s statement, on 27 April 2007 between 9.30 p.m. and 10 p.m. he had gone to Kaarli Avenue to see what was happening at the monument together with the fifth applicant and K. Z. spent some time talking to an acquaintance. When he turned to the fifth applicant, he saw a policeman attacking him from behind and twisting his arm. Fifteen seconds later two more policemen came running. They pushed the fifth applicant to the ground. One of the policemen put his foot on him and all three started to hit the fifth applicant on his head with truncheons. The fifth applicant covered his head with his arm. Z. ran away. The next day he went to a doctor with the fifth applicant.
34. K. stated that he met the fifth applicant and Z. on 27 April 2007 at around 9 p.m. They went to Kaarli Avenue. He saw a policeman attacking the fifth applicant from behind. A moment later two more policemen ran up to him. He was pushed to the ground and beaten with truncheons. Then K. was also hit with a truncheon, he fell down and his hands were twisted. K. and the fifth applicant were taken to D-terminal. The fifth applicant told him on several occasions that his arm was hurting. In D-terminal, people who failed to comply with the orders to sit were beaten.
35. According to the sixth applicant, some time after 6 p.m. on 27 April 2007 he and his wife went to see what was happening at the Bronze Soldier and to take some photos for the family album. At 11 p.m., when the police started using truncheons, gas and grenades to disperse the crowd, the applicant and his wife decided to leave and go home. On their way home at 12.40 a.m. on 28 April 2007 they saw two men fighting on the opposite side of Väike-Karja Street (the Court notes that if the dates of the official documents referred to in paragraphs 36 to 38 below are correct, the dates mentioned in this paragraph should read 26 April and 27 April 2007 respectively). According to the sixth applicant, he stayed to stop the fight and his wife went home. The fight stopped without any intervention from the applicant and he continued on his way home. He then joined a group of four people who were asking the police to let them go home to Pärnu Street to get away from the fights and looting in Väike-Karja Street. However, the police officers ordered them to go to Väike-Karja Street. According to the applicant, approximately fifteen or twenty minutes later the policemen approached them, brandishing their truncheons, while at the same time another group of policemen began attacking them from the other side. The sixth applicant and the other people were first made to stand against the wall of a house and then tied to each other with plastic bands and handcuffed. No explanations were given as to the reasons for their arrest. Their personal details were recorded. Approximately two hours later a vehicle arrived and the applicant and the other people were taken to Rahumäe Detention Centre. According to the sixth applicant he was searched and placed in a cell which was designed for four people, together with seventeen others.
36. According to a report on the detention of the sixth applicant as a suspect, drawn up on 27 April 2007, he had been arrested at 1 a.m. His rights and obligations were explained to him, including the right to be assisted by counsel and the right to make complaints, which was confirmed by his signature. The report also stated that he was suspected of having committed a serious breach of public order. It was further noted that there were grounds to believe that he could continue to breach public order if released.
37. On 27 April 2007 from 8.15 p.m. to 8.50 p.m. the sixth applicant was interviewed by a prosecutor on suspicion of having committed a serious breach of public order. The report contains the sixth applicant’s signature to confirm that he was aware of his rights and did not need a lawyer. According to the sixth applicant, although he had been offered a State-assigned lawyer, his status was not explained to him and nor was the importance of having a lawyer. Moreover, the investigator persuaded him to refuse the lawyer’s assistance, saying that he would be acquitted in court. This is how he came to refuse the lawyer’s services.
38. The record of the interview states that the sixth applicant said that after his wife had gone home he had gone to see what was happening. He had been arrested at 1 a.m. on 27 April 2007, although he had committed no offences, but had merely been watching what was going on. He was then released. He left with a prohibition on leaving his place of residence.
39. On 1 October 2007, after interviewing the sixth applicant again, the police terminated the criminal investigation in his regard because it could not be established that an offence had been committed.
40. The seventh applicant was arrested on 28 April 2007 at 11 p.m. while he was walking to a bus stop. The applicant stated that a police officer approached him and asked to see his identity papers. When the seventh applicant produced them, the police officer asked for details of his citizenship. When the seventh applicant asked why this mattered, the policeman answered: “You will see now” and he tied the seventh applicant’s hands together with tape. He was taken in a police vehicle to a court building. There, he was made to stand against a wall and when he tried to move, police officers pushed him, causing him to hit his head on the floor and hurt it badly. He stated that the police officers hit him repeatedly on the head and one police officer kicked him in the genitals. The police officers also pulled his legs in different directions, sat on him and shouted at him. After half an hour he was taken to a cell, where he spent the night. His rights were not explained to him, nor was he allowed to make a phone call. He was released at 6 a.m. on 29 April 2007. When he asked why he had been detained the only answer he received was that he should not have left his house before 9 May (Soviet Victory Day in the Second World War).
41. A medical report issued at 6.45 p.m. on 29 April 2007 and submitted by the seventh applicant indicates that he had an abrasion on the right side of his face and a small abrasion on his forehead. He also complained of severe pain in his right thigh but there were no signs of any trauma. A medical report was also submitted to the domestic authorities to substantiate his criminal complaint (see paragraph 45 below).
42. The applicant also submitted to the Court a written statement from R., dated 29 May 2008, describing the circumstances of their arrest and detention. R. described his arrest together with the seventh applicant and their detention in a court building. He submitted that they were made to stand against a wall. When forty or fifty minutes had passed, the seventh applicant asked how long they had to stand like that. He was rudely reminded that he had been told to shut up and not to turn his head. Then he was grabbed by the legs so that he fell and hit his head. Two policemen pushed his legs apart and a third one kicked him between the legs. He cried out in pain. After some time he was taken to the basement between two policemen. He could not walk unaided because of a serious injury to his genitals.
43. According to a misdemeanour report drawn up by police officer J.R. on 29 April 2007, the seventh applicant had been shouting and using foul language in a public place (Tammsaare Park) and disturbing other people at 10.30 p.m. on 28 April 2007. Therefore, he had committed a breach of public order. The misdemeanour report refers to a separate report on the questioning of a witness, a police officer, and bears the seventh applicant’s signature next to his remark that he had seen the report but did not agree with the statements contained in it. The report also contains an excerpt from the statement of the rights of the person in respect of whom the proceedings are conducted, signed by the seventh applicant. The rights quoted include the right to counsel and the right to lodge complaints under the Code of Misdemeanour Procedure.
44. By a decision of 25 May 2007 the Põhja Police Prefecture, in misdemeanour proceedings, fined the seventh applicant EEK 420 (EUR 27) for a breach of public order. According to the decision it had been established that on 28 April 2007 at 10.30 p.m. the seventh applicant had shouted, used foul language and annoyed other people. He did not appeal against the decision.
45. Each of the applicants made an individual criminal complaint to the public prosecutor’s office or an application to the Chancellor of Justice (Õiguskantsler) after the events described above, complaining that violence had been used against them and alleging that they had been unlawfully deprived of their liberty. The Chancellor of Justice forwarded the applications submitted to him to the public prosecutor’s office.
46. The first, fourth, fifth, sixth and seventh applicants also submitted medical reports to substantiate their allegations. In the first applicant’s complaints it is mentioned that he was arrested together with Zh. The fifth applicant provided the names and personal details of Z. and K., who could give statements concerning the circumstances of his arrest. In his appeal, the seventh applicant referred to R. as a witness. In addition, the fourth applicant appended a video recording of the arrests to his subsequent appeal to the Tallinn Court of Appeal (see paragraph 51 below).
47. The applicants’ description of the events in their complaints made to the authorities broadly correspond to their factual submissions to the Court summarised above. As to any discrepancies, the first applicant did not mention in his domestic complaints that he personally was beaten with truncheons; his account of events corresponded to that given to the Court by Zh. (see paragraph 18 above). The first applicant also described in general the situation in D-terminal. He thought that there were almost two hundred detainees and about twenty-five police officers. He described a situation where a youngster had called on people to stand up to protest against what was going on. Most of the people who could, had stood up. Then the policemen had started to beat everyone and almost twenty more policemen had rushed in. The protesters were thrown down or forced to sit. By 1 a.m. there were nearly 350 people being held in D-terminal. The seventh applicant submitted in his criminal complaint that in the basement of the court-house there had been many people, some standing facing the wall, some on the floor. He had been placed against the wall. When he had tried to stretch his legs, he was pushed to the floor. He was particularly brutally beaten. He was hit on the head, his legs were pulled apart and an officer sat on his body. All this was accompanied by terrible shouting and noise. The seventh applicant did not mention being hit in the genitals.
48. In their complaints and subsequent appeals the applicants claimed to be victims of a number of offences described in the Penal Code (Karistusseadustik). They notably referred to physical abuse (Article 121), torture (Article 122), unlawful deprivation of liberty (Article 136), abuse of authority (Article 291) and unlawful treatment of prisoners or persons in detention or custody (Article 324). They further mentioned Articles 3 and 5 and in some cases Articles 6 and 11 of the Convention, and cited various provisions of other international instruments.
49. The Põhja district prosecutor’s office declined to initiate criminal proceedings, taking the view that the applicants’ arrest and the use of force and special equipment by the police had been lawful.
50. The applicants appealed to the State Prosecutor’s Office, which dismissed their appeals, emphasising that criminal proceedings were commenced only when there was sufficient information to indicate that an offence had been committed. It noted that during the riot stones and bottles had been thrown at police officers, and there had been violent looting and acts of destruction, during which participants had themselves been injured. Thus, the allegations by the applicants about the circumstances in which they had sustained their injuries were not in themselves sufficient to establish a causal link between the alleged acts and the consequences. Moreover, the police officers were authorised to apply coercive measures and to detain persons suspected of committing criminal offences, but the applicants had not complied with the orders of law-enforcement officers to leave the site of an unauthorised and violent mass meeting. The measures taken in respect of them had been appropriate and no elements of an offence could be identified on the basis of the applicants’ complaints.
51. The applicants lodged further complaints with the Tallinn Court of Appeal against the refusal to initiate criminal proceedings. The court dismissed them, upholding the finding of the prosecutor’s office that no unequivocal link between the actions of the police officers and the injuries sustained by the applicants could be established. The court held that the use of force by the police had been lawful and there was no evidence that an excessive force had been used. In respect of the allegedly unlawful deprivation of liberty, it noted that under Article 20 of the Constitution, a person could also be deprived of his or her liberty in order to prevent an offence or to prevent his or her escape. No appeal lay against the Court of Appeal’s decision.
52. Articles 217 and 218 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), as in force at the material time, set out the rules on detention of a suspect and read, in so far as relevant, as follows:
“(1) Detention of a suspect is a procedural act whereby a person is deprived of liberty for up to forty-eight hours. A report shall be prepared on a detention.
(2) A person shall be detained as a suspect if:
1. he or she is apprehended in the act of committing a criminal offence or immediately thereafter;
2. an eyewitness to a criminal offence or a victim indicates such person as the person who committed the criminal offence;
3. the evidentiary traces of a criminal offence indicate that he or she is the person who committed the criminal offence.
(3) A suspect may be detained on the basis of other information referring to a criminal offence if:
1. he or she attempts to escape;
2. he or she has not been identified;
3. he or she may continue to commit criminal offences;
4. he or she may abscond criminal proceedings or impede the criminal proceedings in any other manner ...
(7) An official of an investigative body shall explain the rights and obligations of a person detained as a suspect to the person and shall interrogate the suspect immediately pursuant to the procedure provided for in Article 75 of this Code.
(8) If a Prosecutor’s Office is convinced of the need to arrest a person, the Prosecutor’s Office shall prepare an application for an arrest warrant and, within forty-eight hours of the detention of the person as a suspect, organise the transport of the detained person to a preliminary investigation judge for the adjudication of the application.
(9) If the basis for the detention of a suspect ceases to exist in pre-trial proceedings, the suspect shall be released immediately.
(10) A person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. If the notification prejudices a criminal proceeding, the opportunity to notify may be refused with the permission of the Prosecutor’s Office.”
“(1) A report on the detention of a suspect shall set out:
1. the basis for the detention and a reference to Article 217 §§ 2 or 3 of this Code;
2. the date and time of the detention;
3. the facts relating to the criminal offence of which the person is suspected and the legal assessment of the criminal offence pursuant to the relevant section, subsection or clause of the Penal Code.
4. explanation of the rights and obligations provided for in Article 34 of this Code to the suspect;
5. the names and characteristics of the objects confiscated from the suspect upon detention;
6. a description of the clothing and bodily injuries of the detained person;
7. the petitions and requests of the detained person.
(2) A report on the detention of a suspect shall be sent to a Prosecutor’s Office immediately.”
53. Articles 228 to 230 of the Code of Criminal Procedure provide that a complaint concerning a procedural act or order of an investigative body may be lodged with the prosecutor’s office if the person concerned finds that his or her rights have been violated by a procedural act or order of the investigative body. Further appeals may be lodged with the State Prosecutor’s Office and then a county court.
54. Articles 44 to 46 of the Code of Misdemeanour Procedure (Väärteomenetluse seadustik), as in force at the material time, set out the rules on detention of a suspect and read, in so far as relevant, as follows:
“(1) A person with regard to whom there is justified reason to believe that he or she has committed a misdemeanour may be detained for up to forty-eight hours if he or she:
1. attempts to escape;
2. has not been identified;
3. is likely to continue commission of misdemeanours;
4. is likely to hinder or evade the misdemeanour proceedings.
(2) Upon detention of a person:
1. he or she is taken to a police authority or the official premises of a body conducting extra-judicial proceedings who is competent to detain persons according to Article 45 of this Code or to a police detention house;
2. a statement is immediately taken from the person with regard to the commission of the misdemeanour and a report on the detention of the person or a misdemeanour report is prepared;
3. the person taken into custody is immediately taken to a county court for the hearing of the matter if the person has committed a misdemeanour and the body conducting extra-judicial proceedings deems it necessary to impose detention, and the corresponding misdemeanour report and other procedural documents have been prepared concerning the misdemeanour matter. In such case, the person subject to proceedings may lodge an objection with the court.
(3) Detention commences with effect from the moment when the person is detained. The period of detention shall be included in the term of the punishment pursuant to the procedure provided for in Article 68 § 2 of the Penal Code.
(4) If it becomes evident that the detention of a person is not justified, he or she shall be released immediately.
(5) If a person is not detained on the bases provided for in paragraph 1 of this Article, the time of interrogation of the person or performance of any other procedural act with regard to him or her is not deemed to be detention of the person.”
“(1) A report shall be prepared on the detention of a person on the bases provided for in Article 44 § 1 of this Code. A report on the detention of the person shall not be prepared if a misdemeanour report is prepared upon detention of the person and the information prescribed in Article 69 § 4 of this Code is entered in the misdemeanour report.
(2) A report on the detention of a person shall set out:
1. the date and place of the procedural act;
2. the name of the body conducting extrajudicial proceedings and the official title, given name and surname of the official of the body who prepared the report;
3. the official title, given name and surname of the police officer who participated in the detention of the person;
4. the given name and surname of the person subject to proceedings;
5. the duration of and basis for the detention, together with a reference to Article 44 § 1 of this Code;
6. the place, date and time of the detention;
7. the legal assessment of the misdemeanour;
8. explanation of the rights and obligations of the person subject to proceedings pursuant to Article 19 of this Code;
9. a description of the clothes and footwear of the person detained and information concerning visible health damage;
10. a list of the objects seized from the person upon detention, and the characteristic features of the objects;
11. any applications and representations made by the person detained;
12. the provision of procedural law on the basis of which the procedural act was performed.
(3) A report shall be signed by the person who prepared the report and by the police arresting officer. The person subject to proceedings shall sign the report, certifying that he or she has examined the report and that the rights and obligations provided for in Article 19 of this Code have been explained to him or her. If the person subject to proceedings refuses to sign the report, an entry to that effect shall be made in it.
(4) At the request of a person subject to proceedings, at least one person of his or her choice shall be notified of his or her location. If the person detained is a minor, a parent or the guardian or curator of the minor and the social services department shall be immediately notified of the detention.”
55. Articles 76 to 78 of the Code of Misdemeanour Procedure set out the rules on complaints against the activities of a body conducting misdemeanour proceedings. Such complaints may be lodged with the head of the organisation in question and a further appeal may be lodged with a county court.
56. Article 6 § 3 (1) and (2) of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik), as in force at the material time, provided that a claim for establishment of the lawfulness or otherwise of an administrative act or measure, or for compensation for damage caused in public-law relationships, could be lodged with an administrative court. Article 9 §§ 4 and 5 set a three-year time-limit for lodging such claims.
57. The Police Act (Politseiseadus), as in force at the material time, provided in its relevant part:
“(1) The police have the power to:
1. demand that individuals and officials observe public order and terminate violations thereof, and also to apply coercive measures prescribed by law with regard to offenders;
2. check the identity documents of individuals suspected of committing an offence, and in order to ensure safety conduct on-the-spot checks of suspected persons and their belongings;
3. draw up reports of misdemeanours, impose punishments for misdemeanours, take individuals into custody, and apply other measures prescribed by law in the fight against misdemeanour offences;
4. summon members of the public and officials to the police in criminal or administrative offence matters in police proceedings, and take individuals involved in offences to the police for immediate establishment of the facts of the offence;
5. pursuant to the procedure provided by acts and other legislation, detain or hold in custody individuals suspected of having committed criminal offences ...
7. take individuals who, due to alcohol or narcotic intoxication, might present a danger to themselves or to others, and also anyone who has violated public order, to a medical establishment or to the police for identification and, where necessary, for a misdemeanour report to be drawn up; ...”
58. On 11 June 2008 the Riigikogu amended the Police Act, creating a clear distinction between administrative arrest and arrest in offence proceedings (that is, criminal or misdemeanour proceedings). A limited number of grounds for the use of administrative arrest were provided and it was stipulated that administrative arrest could be challenged before the head of the police authority concerned or by means of a complaint to an administrative court. The amendments further involved regulations on the identification of members of the public, and in certain cases allowed such individuals to be taken to police premises for that purpose. Lastly, the amendments concerned more detailed rules on the use of force, and provided for grounds and procedure to be used to prohibit a person from remaining in a given place. Some rules were also introduced specifically for use in the event of mass disorder.
59. On 1 January 2010 a new Police and Border Guard Act (Politsei ja piirivalve seadus) entered into force, replacing the previous Police Act. In so far as is relevant to the present case, it contains elements broadly similar to the 2008 amendments to the Police Act.
60. In its judgment of 3 April 2006 (case no. 3-1-1-2-06), the Criminal Chamber of the Supreme Court found that taking a person to police premises did not necessarily mean that he or she was being detained within the meaning of Article 44 § 1 of the Code of Misdemeanour Procedure. Thus, under section 13(1)(4) of the Police Act the police were entitled to take individuals involved in offences to the police for immediate establishment of the facts of the offence; and section 13(1)(7) allowed individuals to be taken to the police for a misdemeanour report to be drawn up. This was affirmed by Article 44 § 5 of the Code of Misdemeanour Procedure, under which a person could also be detained on other grounds than those set out in Article 44 § 1.
61. In its judgment of 10 January 2008 (case no. 3-3-1-65-07), the Administrative Law Chamber of the Supreme Court dealt with a complaint concerning the use of force by police officers and the use of special equipment in the context of traffic supervision. The Supreme Court considered that stopping a vehicle and checking documents were usually acts forming part of supervisory proceedings in the course of which a police officer collected additional necessary information about the elements of an offence in order to establish whether a basis for misdemeanour proceedings existed. The Supreme Court held that the use of force and special equipment within supervisory proceedings could be challenged before an administrative court, whereas in the event of complaints concerning measures applied in misdemeanour proceedings a county court had jurisdiction over the matter, pursuant to Articles 76 to 80 of the Code of Misdemeanour Procedure.
62. The Supreme Court further noted that detention of a person on the basis of Article 44 § 1 (2) of the Code of Misdemeanour Procedure for the purposes of his or her identification, which also involved taking the person to police premises, could not be considered a supervisory measure. Under the law in force it was only possible to detain a person if offence proceedings had been initiated. For the purposes of classifying detention as the first measure applied in misdemeanour proceedings it was irrelevant whether the measure had been taken in full compliance with the rules of misdemeanour proceedings.
63. In May 2007 the CPT made a visit to Estonia. On 19 April 2011 it published a report of its visit (CPT/Inf (2011) 15), which contains the following findings:
“13. Shortly before the visit (in the night of 26 to 27 April 2007), mass demonstrations had taken place in Tallinn, during which more than 1,000 persons had been apprehended by the police. The delegation paid particular attention to the manner in which these persons had been treated and the conditions under which they had been detained by the police. From the information gathered, it appears that, once apprehended, the persons concerned had been transported to various detention facilities (police stations, arrest houses, court holding cells). However, as the capacity of the existing detention facilities was insufficient, the majority of these persons had been taken to a customs warehouse situated at Terminal D in the port of Tallinn; following an identity check and questioning by the police, they had then either been released or transferred to a regular place of detention. ...
14. With the notable exception of the April 2007 events, hardly any allegations of physical ill-treatment by the police were received.
As regards the above-mentioned events, the delegation received numerous allegations of ill-treatment and/or excessive use of force by the police. These allegations mainly concerned punches, kicks and baton blows to the head, back and legs, when the persons concerned had been brought under control. Furthermore, a number of detained persons complained of ill-treatment (kicks or baton blows) on arrival at the place of detention and until they were placed in a cell. Some claimed that were obliged to remain immobile for long periods of time, standing facing the wall or kneeling, while waiting to be placed in a cell (for example, three hours standing facing a wall and ninety minutes kneeling); in some cases, movements or speaking were allegedly punished by a blow. Some allegations were also received of very tight handcuffing for lengthy periods (from the time of apprehension to that of being placed in the cell), rude behaviour and insults. Most of the above-mentioned allegations concerned members of the special forces, some of whom were masked during the intervention.
The CPT is aware of the difficulties with which any police service is confronted during such extraordinary events. However, the prohibition of torture and inhuman or degrading treatment or punishment is absolute, and no exceptional circumstances may justify a derogation from that principle.
The CPT recommends that all police officers, in particular members of special intervention groups, be reminded that all forms of ill-treatment of persons deprived of their liberty (including verbal abuse) are not acceptable in whatever circumstances and will be punished accordingly. Police officers should also be reminded that the force used when performing their duties should be no more than is strictly necessary and that, once persons have been brought under control, there can be no justification for striking them.
Further, police officers must be trained in preventing and minimising violence in the context of an apprehension. For cases in which the use of force nevertheless becomes necessary, they need to be able to apply professional techniques which minimise any risk of harm to the persons whom they are seeking to apprehend.
15. The CPT would also like to express its misgivings about the practice of law enforcement officials wearing masks when apprehending persons (as was apparently the case during the above-mentioned events) since this will hamper the identification of those responsible if and when instances of ill-treatment arise. The Committee considers that only exceptional circumstances can justify measures to conceal the identity of law enforcement officials carrying out their duties. Where such measures are applied, appropriate safeguards must be in place in order to ensure that the officials concerned are accountable for their actions (e.g. by means of a clearly visible number on the uniform).
16. In their letter of 12 September 2007, the Estonian authorities informed the CPT that eleven criminal investigations into alleged cases of police ill-treatment had been initiated in connection with the April 2007 events, most of them on the basis of Sections 121 (physical abuse) and 291 (abuse of authority) of the Penal Code. In four cases, these investigations had been discontinued, while, in all other cases, they were still pending ...
31. The information gathered during the visit demonstrated that many of the persons detained by the police in connection with the April 2007 events in Tallinn were not granted the fundamental safeguards set out in paragraph 18 from the outset of their deprivation of liberty.
Many of the persons concerned were apparently allowed to contact a family member or another person of their choice and to be assisted by a lawyer only when they were brought before a judge. Further, a number of detained persons claimed that their requests to see a doctor whilst in police custody had been denied, even when they displayed visible injuries.
The CPT would like to stress that, even in exceptional circumstances such as those of the April 2007 events, it is incumbent on the authorities to make every effort to guarantee that persons detained by the police enjoy the above-mentioned fundamental safeguards as from the very outset of their deprivation of liberty.
32. The examination of medical files at Tartu Prison revealed that injuries displayed by prisoners detained in connection with the April 2007 events had not always been recorded in detail upon admission to the prison. Further, the medical records often contained little or no information about the statements made by the prisoners concerned and never included the doctor’s conclusion as to the possible causes of the injuries observed ...”
64. In their responses to the CPT report, published on 19 April 2011 (CPT/Inf (2011) 16), the Estonian Government submitted the following, in so far as relevant:
“Eight criminal cases were launched against officers in connection with the April events. Of these, six were under § 291 of the Penal Code (abuse of authority), one under Penal Code § 201 (2) 3) (embezzlement by an official) and one under Penal Code § 121 (physical abuse). At present, the investigations of all eight cases have terminated. Six cases were terminated due to lack of evidence and two cases were terminated due to lack of necessary and objective elements of a criminal offence. No disciplinary investigations were launched in connection with the April civil unrest.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3