ITEMID: 001-67098
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: GARRIDO GUERRERO v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr José Antonio Garrido Guerrero] is a Spanish national who was born in 1941 and lives in San Fernando. He is a regular member of the armed forces (a ship's captain).
He was represented before the Court by Mr G. Muñiz Vega, of the Madrid Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
In an order (auto de procesamiento) of 17 November 1993 investigating judge no. 1 of the Madrid Central Military Court (juez togado militar central) charged the applicant and another member of the armed forces with an offence against the Treasury (misappropriation for private use of fuel belonging to the navy, in breach of Article 195 § 1 of the Military Criminal Code). The investigating judge found, in particular, that there was evidence to warrant prosecution for an offence against the Treasury.
The applicant appealed against the order to the Central Military Court which, in a decision (auto) of 21 March 1994, dismissed the appeal and upheld the impugned order. One of the judges on the bench that heard the appeal was D.R.G., a member of the armed forces' legal corps (vocal togado). In its decision the court pointed out the following:
“According to the case-law established by the Constitutional Court ..., an order by means of which a person is charged is a provisional judicial decision of a purely procedural nature by which an accusation is made, and which must subsequently be the subject of adversarial proceedings and a judgment. Such a decision does not mean that the person charged is guilty, nor is it binding on the courts, which may decide not to proceed with the charges if the evidence on which they were based has ceased to exist.”
Examining the facts of the case in which the applicant was involved, the court added:
“... and, finally, the loss to the armed forces' budget, rationally amount to evidence of wilful conduct on the part of the accused, who was involved in acts of that nature. That conduct may at this initial stage be regarded as constituting the offence set out in Article 195 of the Military Criminal Code, without prejudice to such legal classification and reasoning as may subsequently be adopted when the merits are examined and a final judgment is delivered on the issue of guilt or innocence, regard being had to the fact that an order by which a person is charged is merely a provisional judicial decision of a procedural nature.”
After the proceedings (juicio oral) began in the Central Military Court, P.G.B. was appointed as reporting judge and took various investigative measures.
On 26 and 27 November 1996 the trial was held in public at the Central Military Court. The bench consisted of five judges: the presiding judge, D.R.G. and P.G.B. as judges from the armed forces' legal corps (vocales togados generales auditores), and two other members (vocales militares). In a judgment delivered on 13 December 1996 the Central Military Court found the applicant guilty as charged, sentenced him to one year's imprisonment and ordered him to pay damages to the State authorities in respect of his civil liability for an offence against the Treasury.
The court held, inter alia, that the guilty verdict against the applicant had been based on a whole body of evidence that had been examined during the investigation and corroborated or adduced at the hearing – in particular, direct evidence such as expert reports, witness statements and documentary evidence.
The applicant appealed on points of law to the Supreme Court. He submitted that the bench that had tried him could not be regarded as an impartial tribunal, firstly because D.R.G. had previously been a member of the bench that had ruled on his appeal against the order of 17 November 1993 in which he had been charged, and secondly because P.G.B. had, as the reporting judge, taken various investigative measures once the case had been sent for trial. The applicant also complained that the evidence had been assessed arbitrarily and that some of the prosecution evidence gathered during the investigation had not been produced at the trial but had been taken into consideration by the court, in breach of the adversarial principle and the presumption of innocence.
In a judgment of 18 October 1997 the Supreme Court (Military Division) dismissed the appeal.
With regard to the allegation that the trial court had been biased because D.R.G. had been one of the judges, the Supreme Court noted in its judgment that, according to the provisions of domestic law concerning the grounds on which judges might withdraw or be challenged and the relevant case-law, the fact that a judge had taken part in the adoption of a decision dismissing an appeal against a decision to bring charges could not in any way be regarded as an investigative measure capable of impairing (contaminar) the objective impartiality of the court which had to determine whether the person charged was guilty. As to the allegation that the court had been biased because P.G.B., as the reporting judge for the trial court, had taken certain investigative measures at the request of the prosecution, the Supreme Court observed that the judge had discharged the duties entrusted to him by law as the court's representative with a view to ensuring that direct evidence was obtained and that the court had direct knowledge of the investigative measures that needed to be carried out before the hearing.
In respect of the complaint that there had been a breach of the adversarial principle and the presumption of innocence, the Supreme Court noted that at the hearing the applicant, who was assisted by his counsel, had examined the co-defendants, the witnesses and the experts and had put such questions as he had considered necessary for his defence. The Supreme Court found that his guilt had been established by the trial court on the basis of a whole body of evidence examined during the trial, in accordance with the principle that proceedings should be adversarial and public.
The applicant then lodged an amparo appeal with the Constitutional Court, relying on his right to a fair hearing by an independent and impartial tribunal and on the principle of presumption of innocence (Article 24 of the Constitution).
In a decision (auto) of 30 March 1998, served on the applicant on 6 April 1998, the Constitutional Court dismissed the appeal. As regards the complaint that the two judges in question had not been impartial, the court said that the applicant had been told the names of the judges on the trial bench (and thus those of the two judges in issue) and could have challenged them; having failed to do so, he had not exhausted domestic remedies. As to his other complaints, the Constitutional Court held that at the public hearing in the Central Military Court the defendants had appeared and given evidence, witnesses had been heard and various experts had given their opinions; the principle of presumption of innocence had been observed throughout.
Article 24 of the Constitution provides:
“1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights.
2. Similarly, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent. ...”
The relevant provisions of Institutional Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows:
“Judges, presiding judges and other members of military courts ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part, [they] may be challenged.”
“[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds:
...
5. if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness;
6. if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection;
...
11. if he has taken part in the same proceedings in another capacity.”
“...
If the court or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties' right of challenge.
No appeal shall lie against such an order.”
Section 56 provides that challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty-eight hours before the hearing unless the ground comes to light subsequently.
With respect to orders by means of which an accused is charged (auto de procesamiento) and to appeals against such orders, the Act provides:
“Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them ...
The charges shall be brought by an order [auto], in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused's release or detention pending trial ...”
“... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by means of which the accused is charged within five days of [its] being served ...”
“... if the appeal against the order by means of which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include in the case file or which were referred to in the initial pleading on appeal.”
In a judgment delivered on 14 November 1994 the Supreme Court gave a ruling on the circumstances in which a judge could be considered to have taken part in the same proceedings at an earlier stage for the purposes of a challenge under section 53(11) of the Military Court Proceedings Act. It held, inter alia:
“A challenge to a judge [vocal] of a military court on the eleventh ground enumerated in section 53 of the Military Court Proceedings Act is only valid if the judge has taken investigative measures in connection with the case ... The mere fact of having dismissed an appeal against an order by means of which an accused is charged – a decision from which the only inference to be drawn is that the court does not disagree with the investigating judge's assessment of whether there is reasonable evidence of the accused's guilt – may not in any circumstances be regarded as an investigative measure capable of impairing the court's objective impartiality ...”


ITEMID: 001-82021
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: EKHOLM v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Stefan Ekholm, is a Finnish national who was born in 1951 and lives in Espoo.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 15 May 1987 the applicant had been registered as an unemployed person. The Unemployment Fund of Commercial College Graduates (Merkonomien työttömyyskassa, Merkonomernas arbetslöshetskassa, “the Fund”) granted him an unemployment allowance by three decisions issued in 1987, 1991 and 1993.
On 12 October 1993, a representative of the Fund informed the police that it intended to report an offence by the applicant for allegedly having obtained unemployment allowances by fraud.
On 18 November 1993, the Fund filed a criminal complaint. The applicant was interrogated by the police for the first time on 21 May 1995.
On 18 January 1996, the Fund, using an extraordinary procedure, requested the Insurance Court (vakuutusoikeus, försäkringsdomstolen) to annul the Fund’s decisions in 1987, 1991 and 1993 to pay an unemployment allowance to the applicant. It referred to a statement of the Espoo Employment Office of 10 January 1996, according to which the applicant had been self-employed since May 1987.
On 25 June 1998, having received the applicant’s observations, the Insurance Court annulled the Fund’s decisions and sent the case back to it for fresh consideration. One of the judges deciding on the case was M.T. The Insurance Court’s legal officer (referendaire) noted in his/her memorandum that “Furthermore, the Fund reported an offence by [the applicant], which led to a police investigation. Apparently no charges have been lodged yet.”
On 21 and 22 September 1998, the Fund issued 13 decisions, by which it considered, inter alia, that it had paid the applicant unwarranted unemployment allowances and training allowances during various periods between years 1987 – 1994 and ordered him to repay them, in a total amount of 410,324 Finnish marks (FIM, about 69,011.90 euros (EUR)).
On 30 October 1998, the applicant appealed to the Unemployment Appeal Board (työttömyysturvalautakunta, arbetslöshetsnämnden). Having obtained observations from the parties, the Unemployment Appeal Board upheld the Fund’s decisions on 30 June 2000 as far as they concerned unemployment allowances paid between the years 1987 – 1991.
On 17 August 2000, the applicant appealed to the Insurance Court. He denied having had any business activity during the years he received unemployment allowances. He also requested an oral hearing. On 12 October 2001 the Insurance Court asked the applicant whether he wished to maintain his request for an oral hearing, and if so, to name his witnesses. It further informed the applicant that the provisions of the Act on Cost-free Trial (laki maksuttomasta oikeudenkäynnistä, lag om fri rättegång) would not apply to the proceedings. According to the applicant, he subsequently informed the court that he would not request an oral hearing as he could not afford the costs.
On 4 September 2002, the applicant requested the court to speed up the proceedings.
On 16 January 2003, the Insurance Court upheld the decision save for repayment of unemployment allowance which he had received before 1989 to which a common period of limitation of 10 years applied. Judge M.T. sat on the bench. The decision was final in that the applicant did not have a right to appeal against it under the domestic law.
Subsequently, on 20 February 2003, the applicant, using an extraordinary procedure, requested the Supreme Court (korkein oikeus, högsta domstolen) to annul the Insurance Court’s decision for procedural error, alleging that M.T. was biased as he had decided on the case both in 1998 and in 2003. He further alleged that he had been denied a right to an oral hearing as he could not obtain legal aid.
Having issued interim measures, the Supreme Court rejected most of the applicant’s requests on 15 April 2004. It however examined his application about the alleged bias of M.T., finding no grounds to believe that M.T. had been partial in deciding the applicant’s case twice. It reasoned, inter alia, that the legal nature of the two cases was different and found that M.T. did not have any preconceived ideas that would have cast doubt on his impartiality when the second decision was taken.


ITEMID: 001-87223
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MALININAS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 6. The applicant was born in 1980 and, at the time of lodging his application, he had been serving a custodial sentence at Pravieniškės prison.
7. On 19 February 2003 the Kaišiadorys District Court convicted the applicant - together with an accomplice - of attempted drug dealing in large quantities (Articles 16 § 2 and 232-1 § 5 of the Criminal Code as then in force). The court established that the offence had been disclosed using a “Criminal Conduct Simulation Model” (“the model”), which had been authorised by the Prosecutor General on 29 May 2002.
8. The court found that on 4 June 2002 V, a policeman acting as an undercover agent under the model, had met the applicant and, during their conversation on various topics, asked where he could get psychotropic drugs. The applicant had said that he could procure and sell samples to the policeman straight away, and more thereafter if the samples were good. The samples would cost between 15 to 21 LTL per gram, depending on the quantities required. He refused to lower the price for the first transaction, but suggested that it might be cheaper thereafter if V needed a regular supply. However, the officer replied that he could not wait and they agreed to telephone each other on the matter. V had to undergo a hospital intervention. Thereafter it was the applicant who contacted V, suggesting a meeting so that he could provide V with drug samples. On 21 June 2002, the applicant sold V some drugs.
9. On 23 June 2002 V had telephoned the applicant, requesting more drugs for a total sum of USD 3,000. On 25 June 2002 the applicant provided V with 250 grams of amphetamines. He said that he had around 5 kilos of drugs (amphetamines) and that the price would be lower next time. The applicant and his accomplice were arrested immediately. The applicant pleaded guilty to the attempted drug offence.
10. The court questioned V as an anonymous witness, outside the courtroom via an audio relay. His identity was not disclosed in order to protect him and the proper functioning of the police drug squad. At that stage the defence did not put any questions to V. After his testimony had been read out by the trial judge, the defence formulated some supplementary questions which were put to him by the judge and answered. The other evidence examined by the court included the transcripts of the conversations between V and the applicant, the testimony of another police officer who acted as V’s back up during the operation, their supervising officer, the testimony of the applicant and his co-accused and an expert’s conclusions.
11. The documents relating to the authorisation of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad. The Government contended that the applicant was not, however, denied access to information about the execution of the model. In their submissions to the Court, the Government provided further information about it. The police had information about the applicant’s continued large scale drug dealings in Lithuania and abroad under the nickname of “Malina”. Two police officers were authorised to contact the applicant and his associates and, should their suspicions prove to be founded, they were authorised to procure drugs from him. The steps to be taken and the equipment to be used to obtain proof were set out in the model, which was authorised for a year.
12. Defence counsel, in his final submissions to the trial court, contended that the applicant had been incited to commit the offence by the undercover police officer, who had acted unlawfully. Consequently, the latter’s evidence could not be relied on. Counsel requested that the applicant’s acts be qualified as an attempted offence, for which a milder sentence would be appropriate.
13. The trial court concluded that the use of the model in the case had been lawful. It observed inter alia as follows:
“[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that the defendant ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [the applicant], i.e., the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.”
14. The court acknowledged that the applicant’s conduct had been influenced by Officer V from the outset, and commented at the sentencing stage that it had not been established the applicant had sold or tried to sell drugs to anyone other than this officer. The applicant was convicted of the attempted offence and sentenced to three years and six months’ imprisonment, as well as to the confiscation of 3000 Lithuanian Litai (“LTL”; about 857 euros [“EUR”]).
15. The applicant appealed, complaining inter alia that V had overstepped the legitimate limits of investigation by influencing and inciting him to sell a large quantity of drugs. In his view, this warranted a lesser penalty. The Government contended that he did not dispute the finding of the first instance court that the authorisation of the model had been lawful and, consequently, that he had been involved in drug dealing previously. The parties did not request that the evidence be re-heard de novo.
16. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the applicant was guilty of a completed offence, not a mere attempt. The court thus re-classified the conviction under Article 260 § 2 of the new Criminal Code and increased the sentence to nine years’ imprisonment. With respect to the applicant’s entrapment allegations, the court noted:
“[I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and have discontinued their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers discontinued their criminal activities, but did not influence or incite them.”
17. The applicant lodged a cassation appeal. He alleged that the actions of V had been unlawful. He could have discontinued the crime on 21 June 2002, when the applicant had handed over the drug samples. However, V had offered to buy more drugs for a price significantly higher than their market value. The applicant alleged that V had thus provoked him into selling drugs in large quantities. According to the Government, the aim of this appeal was thus to receive a reduction in sentence.
18. The Supreme Court partially dismissed the applicant’s cassation appeal on 14 October 2003. It held, inter alia, as follows:
“In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about [the applicant] selling narcotic substances. Such data ... is a lawful ground for the use of the model.
By entering into contact with the applicant and offering to buy psychotropic substances from him..., V only joined in the criminal activity of [the applicant] and uncovered his accomplice. Such actions cannot be considered to be entrapment (nusikaltimo provokavimas): it appears from the case file that [the applicant] was not subject to any pressure ... [The applicant’s] allegation that the police undercover agent induced (paskatino) a person who had never offended before to commit a serious crime is unsubstantiated. On the contrary, the use of [the model] helped stop the criminal activity.”
19. The applicant’s conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), but the sentence of nine years’ imprisonment was retained.
20. The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and criminal conduct simulation models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79069
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JAGIELLO v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1936 and lives in Warsaw, Poland.
6. On 28 November 1995, the applicant, who is a taxi driver by profession, was involved in a traffic accident.
7. On 28 February 1996 the applicant was charged with causing the accident. On 2 September 1997 the applicant was served with a bill of indictment.
8. The hearing set for 16 March 1998 was adjourned due to the presiding judge’s illness. On 11 July 2001 the Warsaw District Court (Sąd Rejonowy) held the first hearing in the case. The hearing set for 20 September 2001 was adjourned due to the witnesses’ absence.
9. On 7 December 2001 the court ordered an expert opinion to be obtained. On 30 April 2002 the expert submitted his opinion to the court. The court ordered a supplementary opinion to be obtained.
10. The hearing set for 18 September 2002 was adjourned. At the hearing held on 7 November 2002 the Warsaw District Court gave judgment. The applicant appealed.
11. On 6 June 2003 the Warsaw Regional Court (Sąd Okręgowy) quashed the firstinstance judgment and remitted the case.
12. Following the remittal, on 23 September 2004 the Warsaw District Court gave judgment. The court sentenced the applicant to one year imprisonment stayed for two years. The applicant appealed.
13. The applicant filed a complaint with the Warsaw Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“2004 Act”). On 16 November 2004 the Warsaw Regional Court gave a decision and confirmed that the proceedings had indeed been lengthy. However, the court did not grant any compensation to the applicant.
14. On 29 April 2005 the Warsaw Regional Court held an appeal hearing and gave judgment. The judgment is final.
15. On 6 June 2005 the applicant again filed a complaint with the Supreme Court under the 2004 Act alleging that a copy of the final judgment had not yet been served on him. The Supreme Court rejected the complaint, on a later unknown date, as the applicant had never asked to be served with a copy of the final judgment.
16. On 21 February 2006 the applicant for the third time filed a complaint with the Warsaw Regional Court under the 2004 Act. On 29 September 2006 the court refused to deal with the merits of the complaint. The court held that the proceedings had already been terminated and therefore the complaint was groundless.
17. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58734
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF ILHAN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);No violation of Art. 2;Violation of Art. 3;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 10. The facts of the case, particularly concerning events on 26 and 27 December 1992 when Abdüllatif İlhan, the applicant's brother, was apprehended by gendarmes during an operation at the village of Aytepe and went to hospital for emergency medical treatment of a serious head injury, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.
The Commission delegates heard witnesses in Ankara from 29 to 30 September 1997 and on 4 May 1998. The witnesses included the applicant; his brother Abdüllatif İlhan; İbrahim Karahan, the villager who was apprehended during the same operation; Şeref Çakmak, the commander of the Mardin central gendarmerie, in charge of the operation at Aytepe; Ahmet Kurt, the commander of the local gendarmerie station at Konaklı; Selim Uz, a gendarme doing his military service at Konaklı; Dr Mehmet Aydoğan, the doctor who examined Abdüllatif İlhan at Mardin State Hospital; Dr Ömer Rahmanlı, who treated Abdüllatif İlhan at Diyarbakır State Hospital; Dr Selahattin Varol, from Diyarbakır State Hospital; Abdülkadir Güngören, the Mardin public prosecutor; and Nuri Ay, a soldier with paramedical training who had served at Mardin.
11. The Commission's findings of fact, which are accepted by the applicant, are set out in its report of 1 March 1999 and summarised below (Section A). The relevant domestic proceedings and the Government's submissions concerning the facts are also summarised below (Sections B and C).
12. Abdüllatif İlhan lived in the village of Aytepe, located in the south-east region of Turkey, about 60 to 70 km from the town of Mardin. It came under the jurisdiction of the gendarmerie command at Mardin. The nearest gendarmerie station was at Konaklı, several villages away. The central provincial gendarmerie commander, Şeref Çakmak, knew the village. He had been informed that the İlhan family cooperated with the PKK (Workers' Party of Kurdistan) who were very active in the region at this time. He also suspected the villager İbrahim Karahan of involvement with the PKK.
13. Aytepe village was located on high ground in a hilly area. There was a garden area below the village to the south, described as containing fruit trees and bushes. The descriptions of this area given by witnesses before the Commission's delegates varied. It was common ground that there were stone walls in the garden which were in places quite high. There were rivers or streams to the east and west of this area.
14. On 26 December 1992, shortly before dawn, the Mardin gendarmes, under Şeref Çakmak's command and assisted by men from Konaklı station, started an operation at Aytepe village. The report by Mardin central provincial gendarmerie command stated that a villager, Mehmet Koca, was wanted for harbouring two persons wanted for aiding and abetting the PKK. The weather was very cold, with snow on the ground.
15. Abdüllatif İlhan and İbrahim Karahan saw the soldiers approaching the village from the surrounding hills. From past experience, they feared that they might be beaten. They ran to hide in the gardens south of the village. They did not hear anyone shouting after them to stop. Ahmet Kurt, the Konaklı station commander, saw the two men running away through binoculars. He was ordered by the operation commander, Şeref Çakmak, to apprehend them. He took a team of seventeen men and went to the gardens.
16. The gendarmes found both men hiding under the bushes and trees in the garden area. İbrahim Karahan did not try to run away when he was found. He was beaten and kicked by the gendarmes. They found Abdüllatif İlhan hiding nearby and gathered round him. İbrahim Karahan saw the gendarmes kick him. He also saw them raise and lower their rifles as if striking Abdüllatif İlhan with the butts. He did not, however, see any rifle butt hitting him. Abdüllatif İlhan remembered that he was kicked many times and struck on the hip with the barrel of a G3 rifle which tore his skin all the way down. He was also struck on the right side of the head with a rifle butt. He lost consciousness and remembered little after that for about a week. The gendarmes doused him in the nearby river to revive him.
17. The Commission rejected as implausible and contradictory the testimony of the gendarmes concerning the apprehension of the two men. Neither Ahmet Kurt nor Şeref Çakmak witnessed the apprehension of İbrahim Karahan or Abdüllatif İlhan and their accounts lacked credibility. Selim Uz claimed that he had found Abdüllatif İlhan concealed in the bushes and that the latter had run away, falling twice near the river. The Commission, however, found that his testimony was inconsistent on a number of crucial points and that he gave his evidence in a clearly exculpatory manner. On being questioned in detail, he also admitted that he could not see exactly what had happened. The Commission therefore found that the Government had not produced a witness who could unequivocally state that he had witnessed Abdüllatif İlhan sustain injuries as a result of a fall. It accepted the testimony of Abdüllatif İlhan and İbrahim Karahan, which it found to be credible and convincing.
18. İbrahim Karahan and Abdüllatif İlhan were brought before the operation commander, Şeref Çakmak, who kept them outside the village until the end of the operation. A third man, Veysi Aksoy, was also apprehended for aiding and abetting the PKK. The Commission did not accept as credible testimony that a fire was lit to warm Abdüllatif İlhan. Nor were any dry clothes brought for him from the village. At this point, Abdüllatif İlhan had a visible injury to his head, with bruising around the left eye and a mark on the right-hand side of his head, which had bled. He was limping, showing an injury to the left leg. There were also noticeable irregularities in his manner of speaking when Şeref Çakmak questioned him at this time.
19. An incident report was drawn up by the gendarmes, dated 26 December 1992. It stated that İbrahim Karahan and Abdüllatif İlhan had failed to stop when ordered and that Abdüllatif İlhan had fallen down a slope, injuring his left eye and leg. The report was signed by Şeref Çakmak, Ahmet Kurt and Selim Uz. It also bore the apparent signatures of İbrahim Karahan and Abdüllatif İlhan. However, Abdüllatif İlhan was illiterate and unable to sign his name. He generally placed his thumbprint on documents. Although the report purported to have been drawn up and signed at the scene by the persons present, the Commission noted that Ahmet Kurt and Selim Uz recollected signing it later. It also found that it was an unreliable and misleading document, which did not correspond to the events as described orally by the gendarmes.
20. After completing the operation at the village, the gendarmes returned to the Konaklı station. Abdüllatif İlhan was unable to walk. İbrahim Karahan carried him to the next village, Ahmetlı, where a donkey was obtained. Abdüllatif İlhan rode on the donkey to Konaklı, with İbrahim Karahan helping to keep him in the saddle. They arrived at about 3.30 to 4 p.m.
21. At the station, Ahmet Kurt took the statements of both men. Abdüllatif İlhan was otherwise kept in the canteen while İbrahim Karahan was placed in the custody area. No custody record recording their detention was provided by the Government. At about 9 to 9.30 p.m., the Mardin gendarmes left in their vehicles to return to Mardin, taking İbrahim Karahan and Abdüllatif İlhan with them.
22. The gendarmes arrived in Mardin during the night, passing Mardin State Hospital on the way. Abdüllatif İlhan and İbrahim Karahan were put in the cafeteria of the Mardin central provincial gendarmerie station. İbrahim Karahan recalled that two men in civilian clothes had come to the cafeteria. One of them, who was apparently a doctor, had looked at Abdüllatif İlhan without examining him and said that he was faking his condition. Şeref Çakmak told the Commission delegates that he had called a doctor and a paramedic to examine Abdüllatif İlhan and that, after the examination, the doctor had stated that Abdüllatif İlhan was exaggerating his symptoms. The Commission asked for the doctor and the paramedic to be identified. The doctor identified by the Government failed to appear and give evidence. The paramedic appeared, but could not remember ever being called out to examine a detainee in the circumstances described. No infirmary or medical records were produced to substantiate that treatment was given. The Commission did not make any findings as to who had come to look at Abdüllatif İlhan. It did find that at most he had received only cursory first-aid treatment and that the purported doctor had discounted visible signs of distress, without taking any precautionary steps in respect of an evident trauma to the head.
23. Şeref Çakmak took further statements from the two men during the day of 27 December 1992, probably around 5 to 5.30 p.m. Abdüllatif İlhan's statement bore his thumbprint and the explanation that he did not have a signature. İbrahim Karahan described Abdüllatif İlhan's condition as worsening as the day progressed. He could not walk, needed to be supported and, before giving his statement, lost control of his bowels.
24. At 7.10 p.m. on 27 December 1992, some thirty-six hours after their apprehension, Abdüllatif İlhan and İbrahim Karahan were admitted for treatment at Mardin State Hospital. A document dated 27 December 1992 and signed by Şeref Çakmak requested that both be treated as they had fallen and hurt themselves. According to the hospital record, İbrahim Karahan was treated for trauma to the right ear. A report dated 27 December 1992 and signed by Dr Aydoğan stated that Abdüllatif İlhan's general condition was average, and that he was conscious and responsive. The report also stated that hemadermy was present in the left eye periorbital. It indicated that the life of the patient, who suffered from left hemiparesis, was threatened.
25. Abdüllatif İlhan was taken to Diyarbakır State Hospital, where his condition was found to be fair, though risk to life remained, with symptoms of concussion and left hemiplegia. The applicant arrived at the hospital to see his brother on 28 December 1992. He took Abdüllatif to a clinic, where he paid for scans to be taken. On the basis of these films, which disclosed, inter alia, cerebral oedema and left hemiparesis, Dr Rahmanlı decided that surgery was not necessary. Abdüllatif İlhan was treated with drugs and discharged from hospital on 11 January 1993.
26. Abdüllatif İlhan returned to the hospital for examination at about two-monthly intervals. On 11 June 1993 a report from Dr Rahmanlı and Dr Varol stated that he was suffering from a 60% loss of function on the left side. The applicant submitted to the Commission recent scans of his brain showing an area of brain atrophy. The Commission's delegates who saw Abdüllatif İlhan on 29 September 1997 noted that a loss of function on the left hand side was still visible. However, on the basis of the evidence of the doctors who testified before the delegates, the Commission found that the delay in treatment had not been shown to have appreciably worsened the long-term effects of the head injury.
27. The applicant and his brother did not lodge any complaint with the Mardin public prosecutor, Abdulkadir Güngören. The public prosecutor had been informed, however, that Abdüllatif İlhan had been injured at the time of his apprehension by Şeref Çakmak and he had received documents prepared by the gendarmes concerning the apprehension of Abdüllatif İlhan and İbrahim Karahan. In a written report dated 27 December 1992 to the public prosecutor, Şeref Çakmak had stated that both Abdüllatif İlhan and İbrahim Karahan had run away despite numerous warnings to stop. He described how both men had physically resisted the security forces and had fallen from the rocks while they were pushing the gendarmes. The public prosecutor had also spoken on the telephone with Şeref Çakmak and received oral explanations, inter alia, that İbrahim Karahan had in fact hidden without running away.
28. On 11 February 1993 the public prosecutor issued a decision not to prosecute which concluded that Abdüllatif İlhan's injury resulted from an accident for which no one was at fault, either intentionally or through negligence. He did not interview Abdüllatif İlhan or İbrahim Karahan or any gendarme who had witnessed the alleged accident before issuing his decision.
29. On the same day the public prosecutor drew up an indictment charging Abdüllatif İlhan with the offence of resistance to officers contrary to Article 260 of the Turkish Criminal Code (TCC). It stated that during an operation Abdüllatif İlhan had run away from the security forces, ignoring their orders to stop. He told the delegates that he did not charge İbrahim Karahan with any offence due to the oral explanations given by Şeref Çakmak.
30. On 30 March 1993 Abdüllatif İlhan appeared before the Mardin Justice of the Peace Court. The minutes recorded that he accepted that the charge was true. He was recorded as stating that, on the day of the incident, he did not understand the security forces' warning. Although he understood it afterwards, he ran away fearing that they would harm him. In its decision of that date, the court found that Abdüllatif İlhan had admitted that he had failed to comply with an order to stop and had thus resisted an officer contrary to Article 260 TCC. He was sentenced to a fine of 35,000 Turkish lira (TRL), which was suspended. The applicant stated to the Commission that he had not been allowed to accompany his brother into the courtroom and that his brother, who spoke Kurdish, was not provided with an interpreter. The court minutes made no reference to an interpreter being provided.
31. The Government relied on the incident report drawn up by the gendarmes and the statements taken from Abdüllatif İlhan and İbrahim Karahan by the gendarmes, as well as the oral testimony of the gendarmerie officers.
32. Abdüllatif İlhan was ordered to stop by the gendarmes conducting an operation at his village. He ran away and, due to the slippery terrain, fell and injured himself. İbrahim Karahan's evidence that Abdüllatif İlhan was beaten by the soldiers was unreliable and inconsistent, inter alia, as his son had joined the PKK. Both men had signed the incident report and statements drawn up by the gendarmes. The fact that Abdüllatif İlhan was illiterate did not mean that he was unable to sign documents if he wished.
33. After the accident, Abdüllatif İlhan was neither in danger of losing his life nor in a coma. He did not lose consciousness as alleged. He was able to make statements to the gendarmes and so did not appear to Şeref Çakmak to be seriously hurt. Dr Rahmanlı, who examined him at Mardin State Hospital, described him as responsive. In any event, Abdüllatif İlhan was not neglected but received medical treatment for his injuries in hospital. Such treatment was not available in the rural area where the accident occurred.
34. Abdüllatif İlhan had admitted before the Mardin Justice of the Peace Court that he had resisted the security forces and had had no difficulty in giving evidence.
35. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
36. Under the Turkish Criminal Code (TCC) all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a State employee to subject anyone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
37. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
38. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
39. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 38 above) also applies to members of the security forces who come under the governor's authority.
40. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 36 above) or with the offender's superior.
41. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
42. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
43. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 42), provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
44. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
45. Article 258 of the TCC provides in its first paragraph:
“Whoever, by force or threat, resists a public officer or his assistants during the performance of their official duties shall be punished by a term of imprisonment of not less than six months and not more than two years.”
46. Article 260 of the TCC provides:
“Whoever exerts influence or force to prevent the execution of any of the provisions of a statute or regulation shall be punished by a term of imprisonment of not more than one year.”
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 2


ITEMID: 001-86961
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SHCHEBET v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-f;Violation of Art. 5-4;Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1978. She lived in Vienna, Austria.
7. On 20 February 2007 the applicant was arrested upon arrival at Domodedovo airport in Moscow. She was told that on 24 September 2006 the Belarus authorities had placed her name on the list of fugitives from justice, suspecting her of involvement in human trafficking.
8. The applicant was taken to the Domodedovo transport police department. No arrest record was compiled.
9. On 21 February 2007 counsel for the applicant complained to the transport prosecutor's office about the absence of an arrest record and failure to provide the applicant with food, drink and access to a toilet. It is unclear whether any response was received.
10. On 27 February 2007 the first deputy head of the central police station of Minsk faxed a letter to the head of the Domodedovo transport police department, asking him to keep the applicant in custody. He enclosed a warrant for the applicant's arrest sanctioned by the Minsk town prosecutor on 30 August 2006.
11. On the same day the acting Moscow Regional Prosecutor sent the following letter to the head of the Domodedovo transport police department:
“Owing to the fact that the Moscow Police Department for Air and Water Transport has no temporary detention ward, I request you to hold [the applicant] in the Domodedovo transport police department until such time as a judicial decision on application of a custodial measure has been issued.”
12. Also on the same day, counsel for the applicant complained to a court that the applicant had already spent six days in detention without a judicial order and asked for her release.
13. On 2 March 2007 the Domodedovo Town Court of the Moscow Region refused to deal with the complaint on the ground that no criminal proceedings against the applicant were pending in Russia. On 3 April 2007 the Moscow Regional Court upheld that decision on appeal.
14. On 5 March 2007 the Golovinskiy District Court of Moscow dismissed the same complaint. It found that the letter from the Minsk police officer constituted a lawful basis for the applicant's detention within the meaning of the Minsk Convention until such time as the formal extradition request had been received by the Prosecutor General's Office. The District Court further determined that it was not competent to examine the application for release because it lacked territorial jurisdiction. On 28 March 2007 the Moscow Regional Court upheld that judgment on appeal.
15. On 7 March 2007 the Prosecutor General's Office received a request for the applicant's extradition from the Belarus authorities.
16. Counsel for the applicant complained to a court about unlawful actions of the Moscow transport prosecutor, who had permitted the applicant's detention in excess of forty-eight hours without a judicial decision, on the basis of a non-procedural communication from the Belarus authorities of 27 February 2007.
17. On 22 March 2007 the Golovinskiy District Court of Moscow dismissed the complaint against the transport prosecutor. It found that the Belarus authorities' letter of 27 February 2007 constituted a request for the applicant's arrest pending an official request for extradition within the meaning of the Minsk Convention. The decision on the applicant's extradition and the application of a custodial measure was to be taken by the Prosecutor General's Office rather than by the Moscow transport prosecutor. In these circumstances, the transport prosecutor had acted lawfully and within his competence. On 18 April 2007 the Moscow Regional Court upheld that judgment on appeal.
18. On 23 March 2007 the Prosecutor General's Office forwarded a copy of the extradition request to the Moscow prosecutor responsible for supervising compliance with laws in air and water transport. The prosecutor applied to a court for an arrest warrant in respect of the applicant.
19. On 26 March 2007 the Domodedovo Town Court granted the prosecutor's application and remanded the applicant in custody. The Town Court founded its decision on the facts that the applicant was charged with a criminal offence carrying a prison term of more than one year and that the extradition request was pending. Noting the applicant's “character” and state of health, the Town Court held that no grounds for applying a more lenient preventive measure had been shown to exist.
20. The applicant and her counsel lodged appeals. They pointed out that the applicant had a permanent place of residence and employment in Moscow and that her health had deteriorated as a consequence of being detained in the police cell.
21. On 19 April 2007 the Moscow Regional Court upheld the detention order on appeal. It rejected the applicant's arguments about her residence in Moscow on the basis of a certificate from the Federal Migration Service which showed that her residence in the Moscow Region had not been formally registered.
22. Replying to a complaint by the applicant's lawyer, on 11 April 2007 the senior assistant to the Moscow transport prosecutor admitted that no arrest record had been compiled in respect of the applicant at the Domodedovo transport police department because it had not been required by law in cases of extradition.
23. On 25 April 2007 the Constitutional Court confirmed to the applicant that it had been its constant case-law to require a judicial decision for any deprivation of liberty in excess of forty-eight hours and also to require effective judicial supervision of detention matters. These requirements were likewise applicable to foreign nationals whose extradition was sought.
24. On 25 April 2007 the Russian Ombudsman replied to the applicant that her complaint about unlawful detention had been forwarded for examination to the Prosecutor General's Office. On 28 May 2007 the Prosecutor General's Office wrote to the applicant's lawyer that her detention had been lawful and justified.
25. On 5 October 2007 the Tverskoy District Court of Moscow disallowed the applicant's complaint about the Prosecutor General's failure to put an end to her unlawful detention. The District Court held that the applicant was not a party to any criminal proceedings in Russia and that she could not therefore lodge a complaint under Article 125 of the Code of Criminal Procedure.
26. On 11 October 2007 a deputy Prosecutor General of the Russian Federation granted the request for the applicant's extradition to Belarus.
27. On 22 November 2007 the Moscow City Court upheld the extradition decision on appeal and maintained the custodial measure in respect of the applicant. On 25 January 2008 the Supreme Court of the Russian Federation dismissed the applicant's appeal against that decision.
28. Upon her arrest on 20 February 2007 the applicant was placed in the cell for detention of administrative offenders (“KAZ”, комната для административно-задержанных) on the premises of the duty station of the Domodedovo transport police department (дежурная часть ЛУВД аэропорта «Домодедово»).
29. On 9 March 2007 the applicant complained to the Prosecutor General, the Ombudsman, the Human Rights Commissioner and the President about unlawful detention in the Domodedovo transport police station in appalling conditions. She complained that she did not receive food or hygiene articles on a regular basis, that medical assistance was inadequate, and that she had had no access to fresh air for more than seventeen days. It is unclear whether she received any replies.
30. On 26 March 2007, following the Town Court's decision on the application of a custodial measure, the applicant was transferred to remand centre no. IZ-77/6 in Moscow.
31. The parties' description of the physical conditions of the applicant's detention at Domodedovo airport differ in certain aspects. Their submissions are summarised below.
32. The Government submitted multiple written depositions by police officers from the Domodedovo transport police department. According to them, the applicant received food from the canteen and from her relatives. At night-time she was given a mattress, blanket and bedding from the airport hotel. She could take walks under the escort of a police officer and occasionally have a shower. A nurse came to visit her and take her blood pressure.
33. The Government also submitted a certificate from the medical unit of the airport. It indicated that the applicant had been examined on ten occasions in connection with complaints about headaches, weakness or indisposition.
34. The Government produced a layout plan of the Domodedovo transport police department, showing that the applicant's cell measured four square metres. It had no windows. A bunk bed, 220 cm long and 65 cm wide, occupied the space along one wall.
35. The Government submitted a report on a conversation with the head cook of the airport canteen. The cook had stated orally – but refused to confirm the same in writing – that from 23 February to 26 March 2007 three meals a day had been sent to the applicant.
36. The applicant acknowledged that the cell measured approximately four square metres. However, it was not a normal room but rather a metal cage, its front panel being made of iron rods. The cell had been locked at all times. The only piece of furniture had been a metal bench fixed to the wall. There had been no chair, table, mattress or bedding. During the night she had not been able to undress because she had been in full view of male police officers. She had covered herself with a jacket.
37. On occasion the applicant had had to share the cell with other detainees, such as petty offenders or vagrants. Female detainees had been placed together with her. If a male detainee had been brought in, the police had taken her out of the cell – sometimes during her sleep – and made her sit on a chair in the nearby office. She had remained seated there for several hours.
38. The police officers had not brought her any food or drink. All the food had been provided by her boyfriend and sister. The applicant submitted written depositions from them attesting to this fact. She pointed out that no money had been allocated for purchasing food from the canteen.
39. The applicant had never been taken outside for a walk. The only time she had been outdoors was on 21 February 2007 when she had been taken to the prosecutor's office.
40. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
41. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the Minsk Convention”), to which both Russia and Belarus are parties, provides as follows:
“1. When executing a request for legal assistance, the requested authority applies the laws of its own State...”
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow...”
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest...”
42. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
43. Article 10 (“Personal inviolability”) provides that no one may be detained for more than forty-eight hours without a judicial decision.
44. Chapter 12 (“Arrest of a suspect”) regulates the procedure for arresting a suspect. Article 92 § 1 provides that an arrest record must be compiled within three hours following arrival at the police station or prosecutor's office.
45. Chapter 13 (“Measures of restraint”) governs application of measures of restraint, or preventive measures (меры пресечения), which include, in particular, placement in custody. A custodial measure may only be ordered by judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years' imprisonment (Article 108 “Placement in custody”). The time-limit for detention pending investigation is fixed at two months (Article 109 “Time-limits for detention”). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).
46. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Article 466 is the only provision in the chapter that governs application of measures of restraint with a view to extradition. Paragraph 1 deals with the situation where a request for extradition is not accompanied by an arrest warrant issued by a foreign court. In that case a prosecutor must decide whether it is necessary to impose a measure of restraint “in accordance with the procedure provided for in the present Code”. Paragraph 2 establishes that, if a foreign judicial decision on placement in custody is available, a prosecutor may place the person in detention or under house arrest. In that eventuality no confirmation of the foreign judicial decision by a Russian court is required.
47. Chapter 15 (“Petitions”) provides that suspects, defendants, victims, experts, civil claimants, civil defendants, and their representatives may petition officials for taking procedural decisions that would secure rights and protect legitimate interests of the petitioner (Article 119 § 1). Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of damaging the constitutional rights or freedoms of the parties to criminal proceedings (Article 125 § 1). The competent court is that which has jurisdiction for the place of the preliminary investigation (ibid.).
48. On 4 April 2006 the Constitutional Court examined an application by Mr Nasrulloyev, who had submitted that the lack of any limitation in time on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. The Constitutional Court reiterated its constant case-law that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
49. In the Constitutional Court's view, the absence of a specific regulation of detention matters in Article 466 § 1 of the Code of Criminal Procedure did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is, the procedure laid down in the Russian Code of Criminal Procedure. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for examination of extradition requests.
50. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the Code of Criminal Procedure did not allow the authorities to apply a custodial measure without respecting the procedure established in the Code of Criminal Procedure or in excess of time-limits fixed in the Code.
51. Mr Seidenfeld, a US citizen, was arrested in Russia on 9 December 2005 because his extradition was sought by Kazakhstan. Upon receipt of the formal extradition request, on 30 December 2005 a Russian court ordered his detention pending extradition sine die. Mr Seidenfeld complained to the Constitutional Court that the provisions of the Code of Criminal Procedure which permitted his detention without a judicial decision were incompatible with the Constitution.
52. The Constitutional Court reiterated its constant case-law that the scope of the constitutional right to liberty and personal inviolability was identical for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against an excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.
53. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition, without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.
54. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is in principle of relatively short duration ...However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).
55. The part of the Report to the Russian Government on the visit to the Russian Federation carried out by the CPT from 2 to 17 December 2001 (CPT/Inf (2003) 30) read, in so far as it concerned the conditions of detention in administrative-detention cells located within police stations, as follows:
“25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic.
The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service.
Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-67427
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ERNESTINA ZULLO v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1933 and lived in Paduli (Benevento). She died on 6 March 1999. In a letter of 25 March 1999 her heir, Mr Mario Casciano (M.C.), informed the Court that he intended to pursue the proceedings.
5. On 10 November 1994 the applicant brought proceedings in the Benevento Magistrate's Court, sitting as an employment tribunal, seeking acknowledgment of her right to an invalidity pension (pensione di inabilità) and an attendance allowance (indennità di accompagnamento).
6. On 21 November 1994 the magistrate's court fixed the first hearing for 19 February 1996. On that day the court appointed an expert and adjourned the proceedings to a hearing on 8 July 1997. The hearing was adjourned by the court of its own motion to 28 January 1999. On that day the court set the case down for hearing on 15 June 1999. In the meantime, following his mother's death, M.C. joined the proceedings.
7. The hearing was adjourned by the court of its own motion to 14 February 2000. However, it was not held on that date because the lawyers were on strike. The three hearings held between 28 March 2000 and 7 November 2000 were devoted to organising new expert evidence.
8. In a decision of 30 January 2001, the text of which was deposited with the registry on 6 February 2001, the Benevento Magistrate's Court, sitting as an employment tribunal, dismissed the applicant's claim.
9. On 15 February 2001 M.C. appealed to the Naples Court of Appeal. The proceedings were still pending on 13 February 2004.
10. In 2001 the applicant's son lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. The applicant's son requested the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained and to pay the legal costs plus those incurred before the Court. M.C. claimed, inter alia, 20,000,000 Italian lire (10,329.14 euros (EUR)) in non-pecuniary damages.
11. In a decision of 5 April 2002, the text of which was deposited with the registry on 6 June 2002, the Court of Appeal found that a reasonable time had been exceeded. It awarded EUR 1,200 in compensation for non-pecuniary damage, EUR 500 for costs and expenses incurred in the proceedings before the Court and EUR 500 – of which EUR 300 were fees – for the Pinto proceedings. The decision was served on the authorities on 13 November 2002 and became binding on 13 January 2003. The authorities were given notice to comply on 20 March 2003 and M.C. lodged an application for seizure with the Rome judge responsible for enforcement proceedings in April 2003. Those proceedings were still pending on 7 February 2004.
12. In a letter of 29 November 2002 M.C. informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application.
13. In the same letter the applicant's son also informed the Court that he did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102804
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HOFFER AND ANNEN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Bertram Schmitt;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1945 and 1951 respectively and live in Heilbronn and Weinheim.
7. On 8 October 1997 the applicants distributed four-page folded pamphlets to passers-by in front of a Nuremberg medical centre. The front page contained the following text:
“'Killing specialist' for unborn children Dr. F. [is] on the premises of the Northern medical centre, Nuremberg”.
8. The middle pages contained information on the development of the human foetus and about abortion techniques. It further contained the appeals:
“Please support our struggle against the unpunished killing of unborn children”
and
“Therefore: No to abortion”
The verso read as follows:
“Support our protest and our work. Help to ensure that the Fifth Commandment “Thou shall not kill” and the Basic Law of the Federal Republic of Germany are in future respected by all doctors in Nuremberg!
Stop the murder of children in their mother's womb on the premises of the Northern medical centre.
then: Holocaust
today: Babycaust
(damals: Holocaust heute: Babycaust)
Whoever remains silent becomes guilty too!”
9. The pamphlet bore the name and address of the second applicant as the person legally responsible for its content.
10. On behalf of the medical centre and Dr F., the City of Nuremberg brought criminal charges against the applicants for defamation.
11. On 16 July 1998 the Nuremberg District Court (Amtsgericht) acquitted the applicants on the grounds that their action was justified under section 193 of the Criminal Code (Strafgesetzbuch, see Relevant domestic law below). According to the District Court, the dissemination of the pamphlets was covered by the right to freedom of expression as guaranteed by Article 5 of the German Basic Law, since the pamphlet, taken as a whole, was not intended to debase Dr F. or the medical centre, but to express the applicants' general rejection of the performance of abortions. The District Court noted that the applicants considered the number of abortions performed in Germany to be crimes which were as abhorrent as the Holocaust. It was not up to the court to evaluate this statement, which was covered by the right to freedom of expression.
12. Following an examination of the statements contained in the pamphlet, the District Court considered that the applicant's right to freedom of expression had to prevail over the doctor's interest in the protection of his personal honour.
13. On 26 May 1999 the Nuremberg-Fürth Regional Court (Landgericht) quashed the District Court's judgment and convicted the applicants of defamation to the detriment of the medical centre and of Dr F. The Regional Court considered that the statement “then: Holocaust / today: Babycaust”, seen in the context of the other statements made in the pamphlet, had to be interpreted as putting the lawful activity performed by Dr F. on a level with the Holocaust, a synonym for the most abhorrent and unjustifiable crimes against humanity. According to the Regional Court, this statement was not covered by the applicants' right to freedom of expression, as it debased the doctor in a way which had not been necessary in order to express the applicants' opinion. While expressions of opinion which related to questions of public interest enjoyed a higher degree of protection than those relating to purely private interests, it had to be taken into account if and to which extent the person addressed had participated in the public debate. Furthermore, it had to be considered if the person expressing his thoughts could be at least expected to replace his statement by a statement which was less detrimental to the other person's honour. Applying these principles, the Regional Court considered that the applicants had failed sufficiently to take into account the doctor's interests. It had to be conceded that the applicants, as anti-abortion activists, had a political aim which they were allowed to pursue even by use of exaggerated and polemic criticism. However, by putting the doctor's legal actions on one level with the arbitrary killings of human beings performed by a regime of injustice, the applicants literally qualified him as a mass murderer. According to the Regional Court, this statement amounted to unjustifiable abusive insult (Schmähkritik).
14. The Regional Court further considered that the other statements contained in the pamphlet were covered by the applicants' right to freedom of expression and had to be accepted. Having regard to all the factors of the case, the Regional Court considered it appropriate to impose twenty daily fines of 20 German marks (DEM) each on the first applicant and thirty daily fines of 60 DEM each on the second applicant, as the person having assumed legal responsibility for the pamphlet's content.
15. On 8 December 1999 the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) rejected the applicants' appeal on points of law.
16. On 7 January 2000 the applicants lodged complaints with the Federal Constitutional Court.
17. On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, quashed the Regional Court's judgment insofar as the applicants had been convicted of defamation to the detriment of the medical centre and dismissed the remainder of the applicants' complaints.
18. The Federal Constitutional Court considered, at the outset, that the criminal courts, when interpreting and applying the criminal law, had to respect the limits imposed by the right to freedom of expression as guaranteed by Article 5 of the Basic Law. The court further considered that the Regional Court had respected these principles.
19. According to the Federal Constitutional Court, the applicants had not confined themselves generally to criticising the performance of abortions – which they remained free to do – but had directed their statements directly against Dr F. It was clear from the overall context that the incriminated statement referred to Dr F., who was expressly mentioned on the front page. The Federal Constitutional Court further noted that the lower courts had assumed that the impugned statement put the doctor's professional activities on the same level as the Holocaust. It further observed that the Federal Court of Justice, in separate proceedings referring to the same pamphlet, assumed that the statement was meant to express the opinion that the abortions performed by the doctor amounted to mass homicide. However, this interpretation of the statement, which also contained the Holocaust reference, also contained a serious interference with the doctor's personality rights.
20. The Federal Constitutional Court further considered that the statement seriously infringed the doctor's personality rights. While the applicants' statement did not qualify as abusive insult, the Regional Court's decision was not objectionable as that court had duly weighed the conflicting interests – that is, the applicants' right to freedom of expression and the doctor's personality rights. In particular, the Regional Court had taken into account that the doctor had practised within the framework of the law and had not actively participated in the public debate on abortion. Furthermore, the applicants could have been reasonably expected to express their general criticism without the serious violation of the doctor's personality rights. This decision was served on the applicants' counsel on 22 June 2006.
21. On 9 November 2006 the Nuremberg Regional Court, following remittal, re-assessed the fines imposed as a penalty for defamation to the doctor's detriment. On 26 June 2007 the Nuremberg Court of Appeal quashed this judgment and remitted the case to the Nuremberg Regional Court.
22. On 25 September 2008 the Nuremberg Regional Court re-assessed the sentences and imposed fifteen daily fines of 10 EUR each on the first applicant and ten daily fines of 10 EUR each on the second applicant, thereby taking into account the second applicant's previous convictions.
23. On 2 April 2009 the Nuremberg Court of Appeal dismissed the applicants' appeal on points of law.
24. Article 5 of the German Basic Law provides:
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”
25. The relevant provisions of the German criminal code read:
Section 185
Defamation
“Defamation shall be punished with imprisonment of not more than one year or a fine and, if the defamation is committed by means of an assault, with imprisonment of not more than two years or a fine.”
Section 193
Safeguarding legitimate interests
“...utterances made in order to exercise or protect rights or to safeguard legitimate interests...shall only entail liability to the extent that the existence of defamation results from the form of the utterance or the circumstances under which it was made.”
26. On 30 May 2000 the Federal Court of Justice, in separate proceedings, rejected the Nuremberg clinic's civil action for an injunction against the applicants to desist from further distributing the pamphlet which forms the subject matter of the proceedings before the Court. The Federal Court of Justice interpreted the statement “then: Holocaust / today: Babycaust” as expressing the opinion that the performance of abortions constituted a reprehensible mass killing of human life. The Federal Court of Justice further considered that, in the context of the public debate on the fundamental question of the protection of unborn life, the clinic had to accept the applicants' expression of opinion.
27. On 25 October 2005 the Federal Constitutional Court, in different proceedings (no. 115/2005), confirmed its previous case-law that, in examining criminal or civil law sanctions for expressions of opinion which were made in the past, the right to freedom of expression was violated if, in case of an ambiguous statement, the courts based their considerations on the meaning leading to a conviction, without having previously ruled out other possible meanings which could not justify the sanction. However, these standards did not apply to the same degree to rights to desist from making future statements.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1