ITEMID: 001-111400
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ISTVAN AND ISTVANOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 4. The applicants were born in 1931 and 1933 respectively. They were a married couple and lived in Košice.
5. On 26 September 2002 the applicants lodged an action with the Košice I District Court (Okresný súd) against their daughter’s husband seeking restitution of his share in the ownership of a flat, which the applicants had donated to the defendant and their daughter, his wife. They argued that the defendant had been severely abusing their daughter, both psychologically and physically, thus behaving wrongly towards her and, thereby, also themselves.
6. On 16 January 2003 the applicants requested that a hearing be scheduled. The District Court did so for 30 October 2003, 13 February, 26 August and 31 October 2004. It appears that the first of these hearings did not take place since it had proven impossible to have the summons served on the defendant. The later hearing was cancelled at the applicants’ request because there was an application pending before the Land Registry for correction of the records concerning title to the property to be restored.
7. Meanwhile, the applicants had been ordered to submit evidence (14 May 2004), which they did (28 May 2004). They also submitted further evidence (9 July and 21 December 2004).
8. On 24 March 2005 a hearing was held, following which – on 8 April 2005 – the District Court suspended the proceedings pending the outcome of criminal proceedings, which had been instituted against the defendant in the meantime.
9. On 31 May 2005 the Košice Regional Court (Krajský súd) quashed the decision of 8 April 2005 following an appeal by the applicants.
10. On 2 October 2006 the applicants filed a complaint to the president of the District Court submitting that since 31 May 2005 the District Court had been completely inactive which, in their view, constituted delays.
11. The president of the District Court replied by a letter dated 23 October 2006 referring to the applicants’ complaint as a “repeated” complaint and finding it justified. He acknowledged that since 25 July 2005 the judge in charge of the case had not taken any step with a view to resolving it, and advised the applicants that the judge had been reminded in writing to proceed with the case without delay.
12. The letter of the president of the District Court of 23 October 2006 was served on the applicants’ representative on 27 October 2006. On the latter date, the applicants challenged the length of the proceedings by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended – Ústava Slovenskej republiky) to the Constitutional Court (Ústavný súd). The details are set out in paragraphs 16 to 22 below.
13. On 1 December 2006 the District Court held a hearing, following which the applicants were ordered to produce further evidence. They did so on 18 December 2006.
14. Further hearings were held on 21 December 2006 and 12 February 2007 and the District Court allowed the action on the latter date.
15. The defendant’s appeal of 11 May 2007 was dismissed by the Regional Court on 26 February 2009, following a hearing held on the latter date. It became final and binding on 22 May 2009.
16. The applicants’ complaint to the Constitutional Court (see paragraph 12 above) was received by the Constitutional Court on 6 November 2006.
17. In their complaint, the applicants submitted that not a single judgment had been given on their action despite its having been pending for more than four years and one month. They claimed a violation of their rights to a hearing without unjustified delay under Article 48 of the Constitution and Article 6 § 1 of the Convention and the equivalent of some 2,200 euros (EUR) each in compensation for non-pecuniary damage.
18. On 22 November 2006 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to satisfy the requirement of exhaustion of remedies under section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended – Zákon o organizácii Ústavného súdu Slovenskej republiky, o konaní pred ním a o postavení jeho sudcov).
19. Referring to its decisions in cases nos. IV. ÚS 74/05, IV. ÚS 48/06, and II. ÚS 101/06, the Constitutional Court reiterated that a complaint under section 62(1) of the Courts Act (Law no. 757/2004 Coll., as amended – Zákon o súdoch) to the president of the court concerned was considered to be a remedy to be used prior to the lodging of a constitutional complaint about the length of the proceedings before that court.
20. The Constitutional Court further reiterated that the remedy in question could only be considered as having been duly used if the complainant had afforded the court in question adequate opportunity to take measures with a view to remedying and correcting the unlawful situation caused by its inaction or ineffective action.
21. Observing that the applicants’ constitutional complaint had been received by the Constitutional Court on 6 November 2006, it found that their complaint to the president of the District Court had only been a formal step without any effect that it otherwise could have had, had the president of the District Court been allowed adequate opportunity to take measures against unjustified delays in the impugned proceedings.
22. The Constitutional Court’s decision was served on the applicants’ lawyer on 10 January 2007.
23. The relevant part of Article 48 § 2 provides:
“Everyone shall have the right to have his matter ... heard without undue delay...”
24. Article 127 reads as follows:
“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.”
25. The relevant part of section 53:
“1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute.
2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under sub-section 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition owing to reasons worthy of particular consideration.”
26. The Act governs the system and powers of courts and courts’ administration. Its chapter (Hlava) 1 in part (Časť) 3 lays down the general rules on administration and management of courts. Its relevant part provides:
“Section 32
...
2. The administration and management of courts may not interfere with their decision making activities.
Section 33
1. The administration and management of courts shall be carried out by bodies of administration and management to the extent and by means laid down by statute.
2. Bodies of administration and management of courts include the president and the vice-president of a court. ...
...
Section 34
1. The ministry [of justice] is in charge of the management of courts as the central body of State administration for the judiciary”
27. Chapter 2 in Part 4 deals with the powers of a president of a court. The relevant part of section 53 provides:
“1. The president of a court oversees the judges’ compliance with ethical standards and the principles that judicial proceedings should be smooth and dignified and, for that purpose
...
(f) monitors the decision-making activities of judges from the point of view of the smooth conduct of judicial proceedings,
(g) examines complaints.
...
3. Should the president of a court establish a violation of the principle ... of the smooth conduct of judicial proceedings, the president is duty-bound to debate the shortcomings found with the judge concerned ... and, if necessary, to order measures ... to be taken with a view to eliminating the shortcomings found as well as their cause...
...”
28. Chapter 4 in part 4 deals with complaints about a court’s conduct. Its relevant part provides as follows:
“Section 62
1. A complaint may be brought by a participant or a party to proceedings. A complaint about a court’s conduct may be brought following a breach of the right to a public hearing without unjustified delay or [...]
[...]
Section 63 – Examination of complaints
1. A complaint shall be dealt with by the president of the court concerned, unless [the Criminal Procedure Code] provides otherwise.
2. Complaints against the president of the court shall be dealt with by the president of a higher court.
Section 64
1. The purpose of dealing with a complaint is to establish whether there has been a delay in proceedings ... and to rectify any shortcomings found.
2. In order to establish the status of the matter, the body dealing with a complaint is duty-bound to examine all circumstances. Should the proper dealing with a complaint so require, the complainant shall be heard, as shall the persons against whom the complaint is directed and any other persons who may facilitate the examination of the complaint.
3. Should the body entrusted with dealing with the complaint establish that it is justified, [it] shall take and ensure the taking of measures with a view to rectifying shortcomings and, if necessary, call those responsible for the shortcomings to account.
Section 65
1. A complaint shall be dealt with within thirty days of the date on which it is received by the body liable to deal with it.
[...]
Section 66
The complainant must be informed in writing of the way in which a complaint has been dealt with and of the measures taken with a view to rectifying the shortcomings established. [...]
Section 67 – Review of examination of complaints
1. Should the complainant be of the view that a complaint which he filed to the competent body of a court has not been dealt with properly, [the complainant] may, within 30 days of the service [on the complainant] of the reply [to the complaint], demand that:
(a) the president of a Regional Court review the examination of the complaint by the president of a District Court,
(b) the ministry [of justice] review the examination of the complaint by the president of a Regional Court or the Specialised Criminal Court.
[...]
Section 70 – Common provisions
A complaint submitted to a court under section 62 or [...], shall be considered on its merits.”
29. The Act entered into force on 1 April 2005 (Article XV). It replaced (section 102), inter alia, the State Administration of Courts Act (Law no. 80/1992 Coll., as amended – Zákon o sídlach a obvodoch súdov Slovenskej republiky, štátnej správe súdov, vybavovaní sťažností a o voľbách prísediacich (zákon o štátnej správe súdov)), which had regulated the issue until then, according to a similar pattern (see, for example, Polka v. Slovakia (dec.), no. 72241/01, 13 November 2007; Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004; Molnárová and Kochanová v. Slovakia (dec.), no. 44965/98, 9 July 2002; and I.S. v. Slovakia, no. 25006/94, § 24, 4 April 2000).
30. The State Liability Act 2003 (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci) was enacted on 28 October 2003. It became operative on 1 July 2004 and replaced, as from that date, the State Liability Act of 1969 (Law no. 58/1969 Coll. – Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom).
31. The State Liability Act 1969 had no specific provisions for compensation for damage of a non-pecuniary nature (see, mutatis mutandis, Karlin v. Slovakia, no. 41238/05, § 65, 28 June 2011 with further references).
32. The explanatory report on the State Liability Act 2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights.
33. Section 9 provides:
“1. The State is liable for damage caused by wrongful official conduct. Wrongful official conduct includes a public authority’s failure to take action or issue a decision within the statutory time-limit, general inactivity in the exercise of public authority, unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities.
2. The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage.”
34. Section 17 defines the manner and extent of compensation for damage. Its relevant part provides:
“1. Damage and lost profit shall be compensated for, unless special legislation provides otherwise.
2. In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct, monetary compensation shall also be awarded for non-pecuniary damage, if it is not possible to compensate for it otherwise.”
35. Part 5 of the Act contains common and transitional provisions. Section 27 reads as follows:
“1. Liability under this Act applies to damage caused by decisions [issued] and wrongful official conduct [taking place] after the day of its entry into force.
2. Liability for damage caused by decisions issued and wrongful official conduct [having taken place] before the entry into force of this Act shall be governed by the hitherto applicable statute.”
36. In connection with the present application, as well as two other individual applications under the Convention of a similar kind, the Constitutional Court produced a report.
The report is dated 7 June 2010 and concerns, specifically, the application of the rule of exhaustion of remedies under section 53(1) and (2) of the Constitutional Court Act, with reference to a complaint under the Courts Act, in the context of a complaint under Article 127 of the Constitution about the length of proceedings.
The report can be summarised as follows.
37. In applying section 53(1) of the Constitutional Court Act, the Constitutional Court relies on the principles of an “available” and “effective” remedy. By this is understood that the remedy is directly accessible to the complainant and that using it has direct procedural consequences capable of achieving redress in the form of restitution, compensation or at least prevention. As to a complaint under the Courts Act in respect of the length of proceedings, its preventive (accelerating) effect for the future is central.
38. In the exercise of their duties, should the presidents of courts establish unjustified delays in proceedings, they are duty-bound to debate them with the judge concerned and, if necessary, to prescribe measures to be taken with a view to rectifying the shortcomings found, as well as their cause. Moreover, they have the power to impose disciplinary sanctions.
39. The effectiveness of a complaint under the Courts Act and the requirement for it to be used are examined on the specific facts of every individual case, taking into account:
(i) the outcome of the complaint (in particular whether it was found justified or not and whether the complainant has been informed of any measures taken);
(ii) the conduct of the court subsequent to the introduction of the complaint (whether the court has started examining the matter and begun taking specific procedural steps);
(iii) the overall length and the subject matter of the proceedings (whether any accelerating effect of the complaint is of importance and relevance from the point of view of the object and purpose of the right to a hearing without unjustified delay, in view of the past length of the proceedings and their subject matter); and
(vi) the conduct of the complainants from the point of view of actively asserting their right to a hearing without unjustified delay.
40. Application of the general criteria mentioned in the preceding paragraph results in two contrasting situations, depicted in the following two paragraphs.
41. First, the Constitutional Court has not required complainants to use the remedy in question in cases where the length of proceedings has been “extreme” or “manifestly disproportionate”, provided that, in the course of those proceedings, the complainants had been actively seeking their acceleration, even if not by way of a formal complaint under the Courts Act.
42. Second, the Constitutional Court has declared inadmissible complaints under Article 127 of the Constitution on account of the complainants’ failure to comply with the requirement under section 53(1) of the Constitutional Court Act to exhaust remedies – the complaint under the Courts Act – if the complainants lodged their complaints under the Courts Act only formally, that is to say:
(i) after they had brought their complaints to the Constitutional Court,
(ii) at the same time as they brought their complaints to the Constitutional Court, or
(iii) if they lodged their constitutional complaints so soon after their complaints under the Courts Act that it was not objectively possible for the ordinary court to provide redress and for the Constitutional Court to assess the effect of the complaint under the Courts Act.
43. A review by the president of the higher court of the examination of a complaint under the Courts Act by the president of a lower court has never been required by the Constitutional Court for the purposes of the exhaustion rule under section 53(1) of the Constitutional Court Act.
44. A complaint under the Courts Act, combined with an action for damages under the State Liability Act, and a complaint under Article 127 of the Constitution constitute a set of remedies to be considered compatible with the standards set out in the Court’s judgment in the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), including those under Article 13 of the Convention.
45. The report cites, inter alia, the following cases, which the Constitutional Court declared inadmissible because a complaint under the Courts Act (or its equivalent under the State Administration of Courts Act):
(i) had not been lodged (case no. II. ÚS 93/04, decision of 8 April 2004; case no. III. ÚS 132/05, decision of 5 May 2005; and case no. III. ÚS 401/08, decision of 3 December 2008);
(ii) had not been lodged in the appropriate (written) form and, in any event, the alleged telephone complaint had been made just four days before the introduction of the constitutional complaint (case no. IV. ÚS 265/05, decision of 7 November 2005); and
(iii) could not be considered as having been properly used, as it had been lodged only eight days (case no. IV. ÚS 306/04, decision of 13 October 2004), one month and twenty-five days (case no. III. ÚS 85/06, decision of 8 March 2006), and not earlier than one month and eighteen days (case no. III. ÚS 13/06, decision of 4 January 2006) before the introduction of the respective constitutional complaint.
46. As to the Constitutional Court’s decisions, relied on by the applicants (see paragraph 47 below), without further elaboration, the report suggests that they were not comparable and thus relevant to the applicants’ case because:
- the proceedings had commenced on 14 June 2000, the complaint under the Courts Act had been lodged on 6 October 2004, the president had replied on 25 October 2004 and the constitutional complaint had not been lodged until 30 December 2004 (case no. IV. ÚS 15/05);
- a complaint under the Courts Act could no longer have had any accelerating effect since, prior to it, the proceedings had been transferred to a different court for reasons of jurisdiction (case no. III. ÚS 67/05);
- the proceedings had commenced in 1992, an application aimed at eliminating unjustified delays had been lodged on 30 June 2002 and the constitutional complaint had been lodged on 15 November 2005 (case no. I. ÚS 23/06);
- although the president of the court concerned had accepted that there had been unjustified delays in the proceedings, these were due to “objective grounds”, the proceedings having been conducted in a continuous manner, and no corrective measures were envisaged (case no. I. ÚS 33/06);
- the action had been lodged on 16 October 2001, a complaint under the Courts Act had been lodged on 28 September 2005, the response of the president of the court concerned had been served on the complainant on 4 November 2005 and the constitutional complaint had not been introduced until more than four months later (on 21 March 2006) (case no. I ÚS 182/06);
- in the course of the proceedings the complainants had several times demanded that hearings be scheduled and that the proceedings be conducted in a continuous manner, the proceedings at the relevant time having lasted for some six years and seven months (case no. I. ÚS 30/07); and
- although the complainant had not formally lodged a complaint under the Courts Act, he had actively sought to have hearings scheduled and the proceedings conducted in a continuous fashion on numerous occasions (case no. III. ÚS 154/06).
47. The applicants argued that, in unrelated cases, which had however been represented by the same lawyer as in the present case, the Constitutional Court had declared admissible the following constitutional complaints:
(i) which had been lodged two months and five days (case no. IV. ÚS 15/05, decision of 18 January 2005), two months and two days (case no. III. ÚS 67/05, decision of 2 March 2005), one month and seventeen days (case no. I. ÚS 33/06, decision of 9 February 2006), one month and seven days (case no. III. ÚS 214/06, decision of 27 June 2006), sixteen days (case I. ÚS 258/06, decision of 23 August 2006), twenty-one days (case no. II. ÚS 283/06, decision of 13 September 2006), twelve days (case no. I. ÚS 30/07, decision of 21 March 2007), thirty-one days (case no. IV. ÚS 279/09, decision of 7 August 2009), one month and eleven days (case no. II. ÚS 414/09, decision of 10 December 2009), and seventeen days (case no. II. ÚS 256/2010, decision of 15 March 2010) after the reply of the president of the court concerned who had accepted that there had been unjustified delays in the proceedings concerning actions of 14 June 2000, 20 June 2000, 11 January 1995, 13 September 1999, 13 June 1996, 9 April 2002, 28 March 2000, 13 November 2001, 2 December 1997 and 27 September 2007 respectively; and
(ii) without examining whether or not prior to the constitutional complaint the complainant had asserted his rights by way of a complaint under the Courts Act in an action of 13 April 1992 (case no. I. ÚS 23/06 (decision of 18 January 2006)), in an action of 16 October 2001 (case no. I. ÚS 182/06 (decision of 8 June 2006)) and in an action of 6 December 1994 (case no. II 243/08 (decision of 11 June 2009)).
48. In an unrelated case no. II. ÚS 26/95, with reference to a complaint under the State Administration of Courts Act, which was in the relevant aspects comparable to a complaint under the Courts Act (see paragraph 29 above), the Constitutional Court held that the use of such a complaint was not required prior to a claim before the Constitutional Court that the length of the judicial proceedings in question was excessive (judgment (nález) of 25 October 1995).
49. In cases nos. III. ÚS 220/09 and I. ÚS 267/09 the Constitutional Court dealt with repeated complaints under Article 127 of the Constitution of continuing delays in judicial proceedings following and despite previous judgments of the Constitutional Court finding a violation of the complainants’ right to a hearing within a reasonable time and ordering the courts in question to proceed with the respective cases without delay.
Case no. III. ÚS 220/09 (decision of 28 July 2009) was declared admissible without a specific examination of whether a complaint had been lodged under the Courts Act.
Case no. I. ÚS 267/09 (decision of 29 September 2009) was declared inadmissible on account of the complainant’s failure duly to use that remedy, his previous requests for the proceedings to be accelerated not having been taken into account.
50. In cases nos. I. ÚS 272/08 and II. ÚS 435/08 the Constitutional Court dealt with complaints by two individuals about the length of the proceedings in their joint action for damages. The complainants were represented by the same lawyer and had both lodged complaints under the Courts Act (30 May and 8 July 2008 respectively) prior to introducing their constitutional complaints (21 July and 29 September 2008 respectively).
Case no. I. ÚS 272/08 (decision of 18 September 2008) was declared inadmissible because it had been lodged too soon after the reply of the president of the respective court (18 June 2008).
Case no. II. ÚS 435/08 (decision of 27 November 2008) was declared admissible.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114602
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: PUSTELNIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Wiesław Pustelnik, is a Polish national, who was born in 1968 and lives in Czechowice-Dziedzice. His application was lodged on 26 June 2009. He was represented before the Court by Mr J. Gałkowski, a lawyer practising in Bielsko-Biała.
2. From 20 September 2006 until 17 October 2007 and from 24 October until 28 November 2007 the applicant was in pretrial detention in Mysłowice Remand Centre.
3. The applicant’s subsequent detention in several other prisons and remand centres is not the subject of the instant application. On an unspecified date, presumably in June 2011, the applicant was released and he is currently at liberty.
4. The applicant’s description of the conditions of his detention, as reproduced from the materials of his civil action, may be summarised as follows.
5. All the cells to which the applicant was assigned in Mysłowice Remand Centre at the material time, with the exception of cell no. 114, were overcrowded to the point that the applicant had less than the statutory minimum standard of 3 square metres (m²) of personal space.
6. The applicant had a one-hour period of outdoor exercise every day. He spent the remaining twentythree hours inside his cell.
7. The toilet annex in each of the applicant’s cells was one metre away from the dining table and was separated from the rest of the cell by a cloth.
8. The cells were infested with cockroaches and other bugs.
9. There was only cold running water in the tap and the applicant had to use it for his every-day toiletry needs and for washing dishes. The applicant had one hot shower per week.
10. The applicant was detained under an ordinary security regime. He was not classified as a “dangerous detainee”. He claimed that during his detention he had frequently and routinely been subjected to a personal check (kontrola osobista) by the guards of Mysłowice Remand Centre. In his submission, he had to strip naked in front of a guard and bend over to show his anus. In the applicant’s view the “visual penetration” by the guard could be compared to sexual harassment and he felt humiliated each time he had undergone a personal check.
11. As submitted by the penitentiary authorities in the course of the civil proceedings, the applicant, just like any other detainee in Mysłowice Remand Centre, had been subjected to a body search each time he left or returned to the remand centre’s main wing (pawilon główny). That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees. It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons.
12. The applicant did not give any further details about the practice of body checks. He did not indicate the dates of the impugned incidents or their total number. He did not submit how often he had left the remand centre’s main wing and whether he had been subjected to a personal check when going to his outdoor exercise, a visit or on other occasions.
13. During his detention, the applicant did not file any formal complaints with the penitentiary authorities about the impugned practice of subjecting him to body checks.
14. On 18 November 2007 the applicant lodged a civil action in tort, seeking 500,000 Polish zlotys (PLN) (approximately 120,000 euros (EUR)) in compensation for the suffering which he claimed to have experienced in Mysłowice Remand Centre due to the inadequate living conditions and body searches.
15. The applicant’s submissions to the domestic court about the conditions of his detention and the manner of performing personal checks by the guards were similar to the above description (see paragraphs 513 above). The applicant claimed that, when he had been detained in Mysłowice Remand Centre, he had felt “traumatised” and had difficulties sleeping.
16. On 14 January 2008 the respondent party, namely the State Treasury and Mysłowice Remand Centre, asked that the case be dismissed.
17. They submitted that the maximum allowed capacity had, at the relevant time, been exceeded in Mysłowice Remand Centre. As a consequence, the remand centre’s governor, acting under the 2006 Ordinance, decided to reduce the statutory minimum standard of 3 m². He informed a competent penitentiary judge of that decision. The governor acted, therefore, within the law.
18. Furthermore, the authorities confirmed, to a large extent, the applicant’s submissions as to the overall living and sanitary conditions in the remand centre. They stressed, however, that the cells had always been sufficiently ventilated and that the furniture, such as tables, could be freely moved around the cell so that detainees could have their meals in a more comfortable atmosphere, further away from the toilet annex. It was also submitted that the remand centre was disinfected twice a month by a specialised independent company. Sanitary inspections carried out on a regular basis did not reveal any irregularities.
19. As to the applicant’s body searches, the authorities invoked Article 116 § 2 (3) of the Code of Execution of Criminal Sentences and section 72 of the 2003 Ordinance, which laid down the rules concerning body searches of detainees and convicted persons. It was further noted that the applicant, just like any other detainee in Mysłowice Remand Centre, had been subjected to a body search each time he left or returned to the remand centre’s main wing. That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees. It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons.
20. Lastly, the remand centre’s authorities argued that the applicant had not experienced mental suffering due to the conditions of his detention. He had been under the constant supervision of a psychiatrist and neurologist because he had in the past been diagnosed with personality disorders and alcoholism. During his medical consultations the applicant did not complain about any negative effects of his detention.
21. On 23 October 2008 the Katowice Regional Court (Sąd Okręgowy) gave judgment partly in the applicant’s favour and awarded him compensation in the amount of PLN 3,000 (approximately EUR 716).
22. The domestic court established that, at the relevant time, Mysłowice Remand Centre, which had a maximum allowed capacity of 399 places, had been severely overcrowded. For example, as of 22 November 2006, 571 detainees and as of 14 November 2007, 478 detainees were held there. Throughout his detention in the remand centre, the applicant was assigned subsequently to fifteen different cells. In each of those cells, with the single exception of cell no. 114, the available space per person was below the statutory minimum standard of 3 m². Between September 2006 and December 2007 the remand centre’s governor sent monthly reports to the penitentiary authorities informing them about the rates of overcrowding at any given time.
23. The domestic court further established that, as a result of the overcrowding, not all detainees could fit around the dining table inside the cell. Many had to have their meals sitting on the bed. The table in the applicant’s cell was situated one metre away from the toilet annex. The particular position and certain technical problems with the windows limited air circulation and access to natural light. As a result the applicant’s cells were insufficiently ventilated and lit.
24. It was also confirmed that the toilet annexes in Mysłowice Remand Centre were either not separated from the rest of the cell or separated by a cloth hung over a metal rod which was permanently attached to the walls. In the applicant’s cells the toilet annexes were separated with a bed sheet. In the court’s opinion, such separation did not provide sufficient privacy because the toilet was very near the beds and dining tables.
25. The domestic court also established that, despite the efforts of the remand centre’s administration, the applicant’s cells had been infested with cockroaches.
26. As to the practice of body searches, the domestic court found the explanations provided by the remand centre to be true. In consequence, the applicant’s claim for compensation on this account was considered unjustified.
27. Having analysed the applicant’s medical history, the domestic court agreed that the living conditions in the remand centre had not been the cause of the applicant’s anxiety and sleeping difficulties.
28. In its reasoning on the merits, the Katowice Regional Court relied on the judgments of the Supreme Court of 28 February 2007 and of the Constitutional Court of 26 May 2008, as well as the jurisprudence of the European Court of Human Rights.
29. It concluded that the applicant’s detention in overcrowded cells (during 348 out of a total of 458 days), in inadequate sanitary conditions (cockroaches and the lack of sufficient separation of the toilet annex), with insufficient ventilation and lighting, had given rise to suffering and humiliation which had exceeded the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. That, in turn, constituted an infringement of the plaintiff’s personal rights protected by Article 24 of the Civil Code (Kodeks Cywilny). Moreover, the domestic court held that the requirement of Article 24 of the Civil Code, namely that the act or omission leading to the infringement of a personal right had to be unlawful, was satisfied in the light of the finding of the Constitutional Court that Article 248 of the Code of Execution of Criminal Sentences was unconstitutional.
30. In its analysis concerning compensation, the domestic court reiterated that according to Article 448 of the Civil Code and the established domestic practice, compensation for a breach of a personal right should be “just” and, therefore, it should be of an economically significant value and not merely symbolic.
3,000 (approximately EUR 715).
31. The domestic court decided not to order the applicant to bear any of the costs of the proceedings (koszty procesu) and waived his court fee (koszty sądowe).
32. The applicant did not appeal against that judgment.
33. On 13 February 2009 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the appeal brought by the respondent party. The appellate court upheld the first-instance judgment.
34. A cassation appeal to the Supreme Court (Sąd Najwyższy) was not available due to the low amount of the claim.
35. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 7585 and §§ 4588 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
36. The socalled personal check (kontrola osobista) of convicted persons is authorised and defined by Article 116 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy), which in its relevant part reads as follows:
“§ 1 A convicted person must obey the regulations concerning ... prison order and execute the orders of supervisors and other authorised persons, in particular:
...
§ 2 In cases justified by internal order and security a convicted person will be subjected to a personal check.
§ 3 A personal check means an inspection of the body and checking of clothes, underwear and footwear as well as [other] objects in a [prisoner’s] possession. The inspection of the body, checking of clothes and footwear shall be carried out in a room, in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex.”
37. Moreover, section 72 (1) of the Ordinance of the Minister of Justice of 31 October 2003 on the security of the establishments of the Prison Service (Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów ochrony jednostek organizacyjnych Służby Więziennej), authorises a personal or cursory (kontrola pobieżna) check of a convicted person in a detention facility in order to find dangerous or illicit objects or to foil an escape, or in any other justified cases.


ITEMID: 001-98357
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ÖZCAN AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2 (substantive aspect);Violation of Art. 3 (substantive aspect);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. On 26 October 1999 the Koyulhisar Magistrates' Court found Yılmaz Özcan guilty of violating the Forest Law because the trunks of unlawfully cut down trees were found in his garden. He was sentenced to six months' imprisonment. On 13 July 2000 the Koyulhisar prosecutor issued a warrant for his arrest. What followed, particularly the events which took place on 24 September 2000, is disputed by the parties.
6. The facts as presented by the applicants are set out in Section B below (see paragraph 7). The Government's submissions concerning the facts are summarised in Section C below (paragraphs 8-10). The documentary evidence submitted by the applicant and the Government is summarised in Section D (see paragraphs 11-45).
7. Early in the morning of 24 September 2000 the commander of the Koyulhisar Gendarme Squadron, first lieutenant Muhammet Sevinç, noncommissioned officer Resul Askerden, Koyulca prosecutor Mehmet Çömük and a number of gendarme soldiers arrived at the applicants' house to arrest Yılmaz Özcan. Yılmaz Özcan was then handcuffed and taken out of the house and into the garden. Other occupants of the house, who were not allowed to leave the house, then heard four or five rounds of gunfire. When they looked out of the window, they saw the first lieutenant hitting Yılmaz Özcan on the head with the butt of his rifle. When Yılmaz Özcan asked the first lieutenant to stop, four or five soldiers began kicking him and hitting him with the butts of their rifles. The first lieutenant then shouted “kill him”. When one of the soldiers asked them to stop because “otherwise they would kill” Yılmaz Özcan, the first lieutenant told the soldier to shut up, before shooting Yılmaz Özcan in the back of the neck at close range. The soldiers then threw Yılmaz Özcan's body over the fence surrounding the garden and dragged it down the slope. After the incident the soldiers cleaned up the blood in the garden and took the spent bullet cases with them.
8. On 23 September 2000 first lieutenant Muhammet Sevinç put together a plan to arrest Yılmaz Özcan. The following day the first lieutenant, accompanied by his soldiers and the Koyulca prosecutor Mehmet Çömük, left for the applicants' village. Approximately one kilometre from the village one of the tyres of the vehicle carrying the prosecutor blew out. As a result, the prosecutor and his driver remained there. The rest of the group continued on their way.
9. The soldiers took positions in the form of two circles around Yılmaz Özcan's house before the first lieutenant knocked on the door. Yılmaz Özcan opened the door, ran back inside the house and jumped from the window into the garden at the rear of the house. There he was met by expert sergeant Ömer Davut Akyol, who was one of the soldiers forming the first circle around the house. When Yılmaz Özcan managed to evade him, the expert sergeant gave chase but was unable to catch up. The expert sergeant then fired into the air at least twice.
10. Yılmaz Özcan ran down the slope surrounding the garden for approximately seventy-six metres but was caught by private Fatih Yılmaz, who was in the second circle and who had by then heard the gunfire and cocked his rifle. A scuffle then ensued between private Yılmaz and Yılmaz Özcan and they rolled down the slope, which was very steep. At some point, private Yılmaz was lying on his back when Yılmaz Özcan made an attempt to escape. Private Yılmaz then fired his rifle at least twice. One of the bullets entered the back of Yılmaz Özcan's neck and exited his face, killing him instantly. According to the Government, medical reports revealed that, during their scuffle with Yılmaz Özcan, expert sergeant Ömer Davut Akyol suffered injuries which prevented him from working for a period of three days, and private Fatih Yılmaz suffered injuries which prevented him from working for five days afterwards.
11. The following information appears from the documents submitted by the parties.
12. According to two incident reports prepared by the gendarme soldiers, the soldiers arrived at the village at around 5.30 a.m. on 24 September 2000. Yılmaz Özcan jumped out of the window of his house, evaded the expert sergeant Ömer Davut Akyol who had been waiting in the garden, and started running downhill until he was stopped by private Fatih Yılmaz. A scuffle then ensued between Yılmaz Özcan and private Yılmaz. During the scuffle Yılmaz Özcan attempted to take private Yılmaz's rifle but the rifle went off. As a result, Yılmaz Özcan was shot in the neck and died on the spot.
13. At 7.00 a.m. the same day Mr Fuzuli Aydoğdu, who was also a prosecutor in the town of Koyulhisar, arrived at the scene. The relatives of the deceased complained to Mr Aydoğdu that Yılmaz Özcan had been shot and killed in the vicinity of the house and his body had then been dragged down the hill by the soldiers. When the applicants made that complaint to the prosecutor, the soldiers who had taken part in the operation examined the area between the house and the location of the body, and told the prosecutor that there were no bloodstains or other marks to indicate that the body had been dragged along the ground. While examining the area the soldiers found two spent bullet cases discharged from a Kalashnikov type automatic rifle. It later turned out that the bullets had been fired from the expert sergeant Ömer Davut Akyol's rifle.
14. The prosecutor, with the assistance of a doctor, examined the body and observed a large number of injuries on the body as well as a single bullet entry hole on the back of the neck. The body was then taken to Sivas hospital for a full post-mortem examination.
15. On the same day the prosecutor Aydoğdu began questioning the soldiers who had taken part in the operation.
16. In his statement of 24 September 2000 private Fatih Yılmaz confirmed the version of events set out in the above-mentioned on-site reports, and added that he did not know how the rifle had come to be fired. Private Yılmaz was then released by a judge who considered that the “nature of the offence” and the fact that private Yılmaz was “performing his military service” did not require him to be remanded in custody.
17. Expert sergeant Ömer Davut Akyol told the prosecutor the same day that when Yılmaz Özcan had evaded him and started running down the hill, he had fired two rounds into the air. He had then given chase and heard one or two rounds of gunfire emanating from the bottom of the hill. When he arrived at the scene Yılmaz Özcan was already dead.
18. The non-commissioned officer Resul Askerden told the prosecutor the same day that he had heard the expert sergeant fire two or three rounds into the air. He had then started running downhill after Yılmaz Özcan and had heard three or four rounds of gunfire coming from the bottom of the hill. On his arrival at the scene Yılmaz Özcan had already been killed.
19. On the same day private Fatih Yılmaz and expert sergeant Ömer Davut Akyol were examined at Koyulhisar State Hospital, where the doctors observed a number of bruises on their bodies (see paragraph 10 in fine above).
20. The prosecutor questioned first lieutenant Muhamet Sevinç on 27 September 2000. The first lieutenant told the prosecutor that on their arrival at his house Yılmaz Özcan had been outside the house and had lied, saying he was not Yılmaz Özcan and that Yılmaz Özcan was his father. He had then gone inside to call his father. The first lieutenant had then heard noises at the back of the house, then the gunfire, but he had not witnessed the incident himself.
21. Four gendarme soldiers questioned by the prosecutor on 27 September 2000 stated that on their arrival Yılmaz Özcan had been outside the house. One of the soldiers said that he had heard a single gunshot from the bottom of the hill, while another one told the prosecutor that he had heard three gunshots from the same direction. The remaining two soldiers were not sure how many gunshots they had heard.
22. On 3 and 4 October 2000 the prosecutor questioned two of the applicants, who are daughters of the deceased Yılmaz Özcan. They stated that a number of soldiers had arrived at their house and had taken their father into the garden. They had then heard their father begging the soldiers to release him but that the soldiers had shot and killed him.
23. In the meantime, on 25 September 2000 a post-mortem examination was carried out on Yılmaz Özcan's body at the Sivas hospital. It was established that the large number of injuries on Mr Özcan's body had been caused before his death.
24. On 13 October 2000 the Şebinkarahisar prosecutor filed an indictment with the Şebinkarahisar Assize Court and charged private Fatih Yılmaz with manslaughter.
25. On 22 November 2000 members of the Şebinkarahisar Assize Court and an expert visited the area where the incident had taken place. Private Şenel Selcan, who claimed to have been standing next to private Fatih Yılmaz at the time of the killing of Yılmaz Özcan, told the expert that at the time of the shooting Yılmaz Özcan's back had been turned to private Fatih Yılmaz, who was kneeling down at the time. Private Fatih Yılmaz told the expert, however, that at the time of the shooting he had been lying on his back and trying to push Yılmaz Özcan away. Private Yılmaz also added that during the scuffle he and Yılmaz Özcan had rolled approximately forty-five metres down the hill.
26. The expert noted in his report that the wife, mother and four daughters of the deceased had been consistent when they showed him the location in their garden as the place where they claimed Yılmaz Özcan was shot and killed. Having regard to the conflicting information with which he had been provided by privates Şenel Sercan and Fatih Yılmaz, the expert recommended that the Forensic Medicine Institute's opinion should be sought, to establish whether the trajectory travelled by the bullet in Yılmaz Özcan's head had been compatible with private Fatih Yılmaz's version of events.
27. On 6 February 2001 prosecutor Aydoğdu decided not to prosecute the gendarmerie personnel – with the exception of private Fatih Yılmaz – or the prosecutor Çömük because, “other than the family's abstract allegations”, there was no evidence implicating them in the killing.
28. On 2 March 2001 the Şebinkarahisar prosecutor filed another indictment with the Şebinkarahisar Assize Court and charged the remaining gendarmerie personnel, with the exception of first-lieutenant Muhamet Şevinç, with manslaughter.
29. It appears from a report drawn up on 2 March 2001 pursuant to the Ministry of Justice's instructions, that the applicants had lodged a number of official complaints with that Ministry. The author of the report, Mr İzzet Sandal, who was an inspector with the Ministry of Justice, stated in this report that on 11 July 2000 the Koyulhisar prosecutor Mehmet Çömük (see paragraph 8 above) had drawn up a letter addressed to Yılmaz Özcan inviting him to give himself up to serve his prison sentence. Nevertheless, even before that letter was posted, the same prosecutor had issued an arrest warrant on 13 July 2000 (see paragraph 5 above) and had then himself taken part in the operation to apprehend Yılmaz Özcan. According to the information provided to the inspector by the applicants, the prosecutor Mehmet Çömük himself had been present when Yılmaz Özcan was allegedly shot and killed in his garden by the first lieutenant. According to the inspector's report, the prosecutor Mehmet Çömük defended himself by telling the inspector that the reason why he wanted to take part in the operation was because he wanted to visit the village, as he had never had the opportunity previously. He did not however go to Yılmaz Özcan's house, and remained with the vehicle.
30. The inspector concluded that prosecutor Çömük, contrary to his denials, had been present during the operation and had neglected his duties by failing to prevent the incident and he had thus contributed to the death of Yılmaz Özcan.
31. The inspector also noted that the other prosecutor in Koyulhisar, Mr Fuzuli Aydoğdu (see paragraph 13 above), had given a decision not to prosecute first lieutenant Muhammet Sevinç or prosecutor Çömük without first examining the evidence and eyewitness statements which, in the opinion of the inspector, were credible and deserved further investigation.
32. It also appears from this report that when members of the Şebinkarahisar Assize Court visited the village on 22 November 2000 (see paragraph 25 above), they were assisted by the soldiers who had taken part in the operation during which Yılmaz Özcan was killed. When the deceased Yılmaz Özcan's father, wife and three of his children – that is the applicants Hacı İbrahim Özcan, Kadriye Özcan, Zeynep Özcan, Ziynet Özcan and Ömer Özcan – told the prosecutor Fuzuli Aydoğdu that they did not want the soldiers who had been involved in the killing of Yılmaz Özcan to take part in the investigation, criminal proceedings were initiated against them for obstructing the officials in the execution of their duties. When one month later these applicants went to make statements in relation to the charges against them, a judge ordered their detention on remand in a prison. They were subsequently released on bail.
33. The inspector also heard a number of eyewitnesses to the events who had not previously been questioned by the prosecutors. These eyewitnesses confirmed that they had seen bloodstains in the garden where the family claimed Yılmaz Özcan was killed. They also stated that they had seen a trail of blood all the way to the bottom of the hill where the soldiers claimed Yılmaz Özcan had been killed by mistake. The inspector also noted that first lieutenant Sevinç, non-commissioned officer Askerden and expert sergeant Akyol had given a number of contradictory statements about their movements during the operation.
34. The inspector recommended that prosecutors Çömük and Aydoğdu be removed from their duties in the town of Koyulhisar. He also recommended that criminal prosecutions be brought against first lieutenant Sevinç and prosecutor Çömük in relation to the killing of Yılmaz Özcan.
35. On 30 May 2001 seven forensic experts working for the Forensic Medicine Institute, acting on a request from the Şebinkarahisar Assize Court, concluded that the large number of injuries on Yılmaz Özcan's head, chest, back, arms and legs could not have been caused by jumping from a window or by falling down while running. According to these experts, the injuries had been caused close to the time of death or shortly before it, by hard objects such as stones, sticks, rifle butts or boots worn by military personnel, whereas the lesions on the back of the body had been caused by dragging the body on the floor. It was also established that Yılmaz Özcan had been shot at a range of between two and fifteen centimetres.
36. On 4 July 2001 the Şebinkarahisar prosecutor filed another indictment with the Şebinkarahisar Assize Court and charged a number of soldiers who had taken part in the operation with making false statements and destroying crucial evidence. On the same day the Şebinkarahisar Assize Court joined all three cases (see paragraphs 24 and 28 above).
37. On 17 July 2001 the Giresun prosecutor filed an indictment with the Giresun Assize Court and charged first lieutenant Muhammet Sevinç and Koyulhisar prosecutor Mehmet Çömük with manslaughter. On 2 November 2001 the Giresun Assize Court decided that, on account of prosecutor Çömük's seniority, the Court of Cassation's Criminal Division had the power to try him. All cases mentioned above were then joined and sent to the Court of Cassation's Criminal Division acting as a first instance court. Subsequently, all officers were acquitted, apart from private Fatih Yılmaz (see paragraph 42 below).
38. On 12 June 2003 the First Section of the Court of Cassation's Criminal Division, sitting as a first-instance court (“the trial court”), adopted its judgment in relation to all defendants. According to the judgment, a fourth indictment had apparently also been filed against the defendants, charging them with ill-treatment.
39. It appears from the judgment that, immediately after the killing, a number of villagers had seen bloodstains in the garden where the applicants claimed Yılmaz Özcan was shot and killed. They had informed the prosecutor about this but the prosecutor had made no mention of it in his report. The judgment discloses that the applicants had told the investigating authorities that after the shooting the soldiers had collected bloodstained soil from their garden and put it in a box. One villager told the investigating authorities that he had found the box with the bloodstained soil in it. This box was subsequently examined for fingerprints but no matching prints were found.
40. The trial court noted that the first time the applicants had given evidence to the investigating authorities was some ten days after the killing (see paragraph 22 above). In the opinion of the trial court, the applicants' failure to make statements in the immediate aftermath of the events showed that the applicants had not witnessed the killing, but had made the allegations in order to blame the State for it. Thus, not only the statements made by the applicants but also the statements made by their witnesses were not to be relied on in evidence. On the other hand, there were no legal reasons to disregard the conclusions of the investigations carried out by the soldiers who had themselves had taken part in the investigation. It was “impossible” that the soldiers would collude in order to protect the first lieutenant by blaming private Fatih Yılmaz. The fact that the search carried out by those soldiers revealed no traces of bloodstains in the garden was sufficient to conclude that Yılmaz Özcan had not been killed as alleged by the applicants. According to the trial court, a lack of spent bullet cases discharged from private Fatih Yılmaz's rifle did not necessarily show that the real perpetrator was somebody else.
41. The trial court also considered that the Forensic Medicine Institute's above-mentioned conclusion (see paragraph 35) discredited the applicants' allegation that Yılmaz Özcan had been killed in the garden by the first lieutenant and that his body had then been dragged by the soldiers. According to the “experience of the judiciary”, the injuries could have been caused by Yılmaz Özcan falling down the hill while he was trying to escape and by soldiers who were trying to apprehend him. The fact that Yılmaz Özcan had been involved in a scuffle with the soldiers who tried to apprehend him was borne out by medical reports showing that the two soldiers had suffered injuries (see paragraph 10 above).
42. With the exception of private Fatih Yılmaz who had been charged with manslaughter, the trial court acquitted all the defendants – that is prosecutor Mehmet Çömük, first lieutenant Muhammet Sevinç, non-commissioned officer Resul Askerden, expert sergeant Ömer Davut Akyol and the privates who took part in the operation. The trial court considered that private Yılmaz had not acted with an intention to kill; he had pulled the trigger with the aim of catching Yılmaz Özcan and had considered that it would only injure him and not kill him. The trial court sentenced private Fatih Yılmaz to ten years' imprisonment but reduced it to two years and one month because it considered that private Yılmaz had killed Yılmaz Özcan in the execution of his duties as a soldier and had later regretted his actions. The trial court also concluded that there was no evidence to show that Yılmaz Özcan had been ill-treated, and acquitted all the defendants charged with that offence.
43. On 20 April 2004 the Joint Penal Chambers of the Court of Cassation (“the appeal court”) rejected the appeal lodged by the applicants. Like the trial court, the appeal court also considered that the Forensic Medicine Institute's conclusions discredited the applicants' allegations.
44. According to a document submitted to the Court by the applicants, the appeal court's decision was served on the first applicant Mr Hacı İbrahim Özcan on 11 November 2004 “in accordance with the letter of the Court of Cassation's Criminal Division's President”.
45. In 2001 the applicants brought proceedings against the Ministry of the Interior and claimed compensation for the killing of Yılmaz Özcan. On 12 December 2003 the Sivas Administrative Court observed that Mr Özcan had been killed by a soldier and there had thus been a connection between the killing and the compensation claim. It awarded the applicants the sum of approximately 48,500 euros (EUR) in compensation for their pecuniary and non-pecuniary damage. This decision became final following the dismissal by the Supreme Administrative Court on 29 September 2004 of the appeals lodged by the applicants as well as by the Ministry of the Interior.
VIOLATED_ARTICLES: 2
3


ITEMID: 001-90767
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PAKOS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1962 and lives in Łódź. He is currently detained in the Katowice Remand Centre.
6. On 15 February 2002 the applicant was arrested on suspicion of having been involved in drug trafficking as a member of an organised criminal group.
7. On 17 February 2002 the Katowice District Court (Sąd Rejonowy) ordered that the applicant be detained on remand until 15 May 2002 in view of the reasonable suspicion that he had committed the offences in question. The court considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings given the risk that he might obstruct them. This suspicion was, in the court’s view, justified by the fact that the applicant had been acting in an organised criminal group, “the members of which had not been identified”. The court also stressed the severity of the likely sentence.
8. The applicant’s detention was repeatedly extended by several decisions of the Szczecin Regional Court (Sąd Okręgowy) and the Katowice Court of Appeal (Sąd Apelacyjny). In their decisions, the courts repeatedly relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the serious nature of the offences and the risk that the applicant, as a member of an organised criminal group, would obstruct the investigation.
9. On 14 December 2004 the prosecutor lodged a bill of indictment with the Katowice Regional Court against the applicant and 32 other co-accused. The prosecutor requested 22 witnesses to be heard.
10. On 7 December 2005 the Katowice Court of Appeal, extending the applicant’s detention for a further three months, noted that the length of the investigation had already been excessive and ordered that, by the end of the extended detention (that is, by 15 March 2006), the Regional Court commence the trial and hear all the defendants in the proceedings.
11. On an unspecified date the applicant appealed.
12. On 28 December 2005 the Katowice Court of Appeal confirmed its decision.
13. It appears that the Katowice Court of Appeal’s instructions were not followed by the Regional Court. After 15 March 2006 the applicant’s detention was extended three more times and the measure has still not been lifted.
14. On an unspecified date in January 2007 the applicant’s lawyer, relying on the applicant’s state of health and his family situation, requested the court to vary the preventive measure.
15. On 15 January 2007 the Katowice Regional Court refused the request, again invoking the serious nature of the offences with which the applicant had been charged and the risk that he would obstruct the proceedings. As regards the applicant’s health and his family situation the court found that:
“It emerges from the information received from the Katowice Remand Centre’s doctor that the applicant can be treated in detention.... The applicant’s family situation is not so different from the situation of most families where a husband and father is imprisoned. However, the applicant’s wife runs her own business, which secures her and her children a basic income. It is true that the applicant’s apartment has been sold at auction but, in the court’s view, any possible eviction is still a long way off and even then the applicant and his family can obtain alternative accommodation. Lifting the applicant’s detention order would not change the living conditions of his family much.”
16. The applicant’s detention was further extended by the Katowice Court of Appeal on 4 April, 27 June, 24 October and 28 December 2007 and on 6 February 2008. The applicant appealed against all those decisions, apart from the one given on 24 October 2007, but they were confirmed by the Court of Appeal. In all those decisions the Katowice Court of Appeal relied basically on the same grounds, repeating the arguments relating to the suspicion against the applicant, the serious nature of the offences with which he had been charged, the severity of the penalty to which he was liable and the risk that he might obstruct the proceedings. The suspicion was justified, in the court’s view, by the charge of acting in an organised criminal group.
17. The applicant is still detained and the proceedings before the first-instance court have not yet been terminated.
18. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5