ITEMID: 001-118584
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BERESNEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1979 and lived until his arrest in the village of Kosmedemyanskiy, Kaliningrad Region. On 20 December 1999 the Kaliningrad Regional Court (“the Regional Court”) convicted the applicant of aggravated disruption of order in a detention facility and sentenced him to fourteen years’ imprisonment. According to the last available information from the applicant he continued to serve his prison sentence in a correctional colony in the village of Slavyanovka, Kaliningrad Region.
6. From 23 December 1999 to 26 June 2000 the applicant was detained in Kaliningrad remand prison IZ-39/1 awaiting transportation to Moscow, where he was to attend the hearing of his criminal case in the court of appeal. According to the applicant, the conditions of detention there were appalling, as the cells were overcrowded and dirty and without a minimum of comfort. After 26 June 2000 the applicant was transported to an investigation facility in Smolensk, and thereafter to investigation facility IZ48/3 in Moscow. He alleges that the conditions of detention in both facilities were similar to those in remand prison IZ-39/1.
7. On 13 January 2003 the applicant lodged a tort action against the administration of remand prison IZ-39/1. The applicant claimed 80,000 Russian roubles (RUB) in compensation for non-pecuniary damage caused by the conditions of his detention in the facility from 23 December 1999 to 26 June 2000. At some point the applicant also asked the court to summon as witnesses the inmates who had been detained with him in the cell. He also sought leave to appear before the court in person.
8. According to the Government, on 10 March 2003 the Kaliningrad Tsentralniy District Court informed the applicant about his right to appoint a representative for the proceedings. The court explained that given the applicant’s status as a convict the court had no power to order his dispatch to the hearing. The applicant in reply notified the court that he could not afford to be represented.
9. On 27 March 2003 the Tsentralniy District Court held a hearing in the applicant’s absence. The case was adjourned; the applicant was informed again that it would not be possible for him to attend in person and that he could appoint a representative.
10. On 22 April 2003, the Tsentralniy District Court held a hearing in the applicant’s absence and dismissed his claim. The representatives of the defendants were present and heard. The witnesses were not summoned. The court found that the applicant had failed to provide evidence to prove that his rights had been violated in IZ-39/1 or that the authorities had been responsible for any “mental anguish or other damage” allegedly caused to him. The court held, inter alia, that it was not the fault of the authorities that the cells in the facility had been overcrowded.
11. On 22 May 2003 the applicant requested the Tsentralniy District Court to give him access to the case file. He did not receive a reply to his request.
12. On 30 July 2003 the Regional Court, acting on an appeal, upheld the judgment of 22 April 2003. The applicant was not present.
13. On 12 October 2000 the applicant was transferred to the penal establishment OM-216/13 (“the colony”) in the village of Slavyanovka, Bagrationovskiy District, Kaliningrad Region. Upon his arrival, the colony administration seized for inspection the applicant’s personal documents, letters and photographs. The applicant alleged that the administration had then lost them. Administrative complaints of negligence on the part of the administration were to no avail.
14. On 16 October 2001 (or, according to the Government, 23 October 2001) the applicant brought an action for damages against the colony administration and the Ministry of Finance in connection with the loss of his personal archive. The applicant claimed RUB 6,000 in compensation for pecuniary and non-pecuniary damage.
15. On 15 November 2001 the Bagrationovskiy District Court, Kaliningrad Region (“the District Court”) set a date for the hearing and ordered the defendants to produce written observations in reply to the applicant’s statement of claim, requested the applicant’s personal file from the colony, and summoned a witness, a colony officer.
16. By a letter of 21 November 2001 the court notified the applicant of the date of the forthcoming hearing and asked him whether he agreed that the case could be heard in his absence. The District Court explained to the applicant that there was no possibility in law for a detainee to be transported to court other than in exceptional circumstances. The applicant replied, insisting on attending the proceedings in person.
17. The first hearing was held in the applicant’s absence on 14 December 2001. A representative of the colony was present. The court ordered the hearing to be adjourned until 30 January 2002. On 14 January 2002 (according to the Government on 9 January 2002) the court sent a letter to the applicant explaining to him that the law, in particular Article 77 of the Code of Execution of Sentences, did not permit convicts to attend civil proceedings in person, and advising him to instruct a representative to attend the hearing on his behalf.
18. The applicant replied that he did not have a representative and that he insisted on attending in person.
19. The second hearing was held on 30 January 2002, again in the absence of the applicant and in the presence of the representatives of the defendants. After hearing the defendants’ representatives, examining documents and hearing oral testimony from the only witness present (a staff member of the colony) the District Court found against the applicant. The court concluded that the applicant had received his documents back and had burned them afterwards. The judgment also referred to a statement signed by the applicant that he had received his possessions.
20. On 13 February 2002 the applicant appealed against the judgment. He alleged that the court had wrongfully interpreted the facts of the case because of his absence from the hearings. He also requested leave to appear before the appeal court.
21. Following two hearings, on 29 May and 17 July 2002, held in the applicant’s absence, the Regional Court upheld the judgment of 30 January 2002. The court held that there was no possibility in law for the applicant to be transported to the hearing, and that the judgment at issue was lawful.
22. At the material time the applicant was serving a prison sentence in correctional colony OM-216/13. In October 2001 a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences (UIN) arrived at the colony for the purpose of performing “regime [enforcement] operations”. Searches of the living quarters of the colony conducted by the officers of the unit revealed the presence of “prohibited items” there.
23. On 23 October 2001 several UIN officers entered the cell where the applicant was detained and ordered him to leave the cell. He was told that he had to move to another building of the colony. The applicant and his inmates were taken to the entrance door, where they saw two rows of officers wearing balaclava masks. The applicant was told to run between the rows to a car. While the applicant was running, he received several blows with rubber truncheons. The officers also kicked him and set a dog on him.
24. The ride to the other building took several minutes. When getting out of the car the applicant fell to his knees. On his way back from the car to the colony the applicant and other inmates again passed through the rows of masked officers. The applicant was hit several times with rubber truncheons and kicked.
25. The applicant submitted that inmates Mr Artyomov, Mr Sk., Mr T., Mr G., Mr Ks., Mr Gr. and Mr M. had been subjected to the same treatment on the way to and from the car. A detailed description of the same events by Mr Artyomov can be found in the Court’s judgment in the case of Artyomov v. Russia (no. 14146/02, §§ 36 et seq., 27 May 2010).
26. The applicant, with several other inmates (Mr Artyomov, Mr T. and Mr M.), was chased to one of the colony courtyards. They were lined up with their hands against the wall and their legs apart. Then several guards in balaclava masks approached the inmates and started beating them. An officer kicked the applicant and hit his legs with rubber truncheons. The applicant was also hit several times on the backs of his knees. The officers said that if the inmates did not stop writing complaints and behaving badly, the next time they would be beaten more severely.
27. Thereafter the applicant and other inmates were ordered to run “through the corridor” to their cell. While the applicant was running, he was hit several times on the back and humiliated verbally. According to the applicant, in that incident he received no fewer than twenty blows.
28. During the next week the applicant repeatedly requested to see a doctor. On 2 November 2001 Mr G., the colony doctor, visited him. The applicant told him about the beatings on 23 October 2001. He also showed the doctor his right knee, which was swollen and bruised. The doctor wrote in the applicant’s medical record that the applicant had fallen out of a car.
29. The Government denied that physical force had been used on the applicant, with reference to the findings of the domestic inquiry (see below).
30. Shortly after the incident the applicant sent a number of complaints of ill-treatment to various State officials, including the Prosecutor’s Office of the Kaliningrad Region.
31. On 27 November 2001, 29 April and 10 June 2002 and 30 January 2003 the Prosecutor’s Office of the Kaliningrad Region rejected the applicant’s complaints about the events of 23 October 2001 as unsubstantiated.
32. On 5 June 2003 the applicant lodged a request with the Regional Prosecutor’s Office seeking for criminal proceedings to be instituted on account of the incident of 23 October 2001. According to the Government, on 4 August 2003 the applicant lodged a similar complaint with the office of the prosecutor in charge of the supervision of penal institutions.
33. On 6 August 2003 Mr K., the prosecutor, took a decision not to institute criminal proceedings. The applicant received a copy of that decision on 11 August 2003. The prosecutor concluded that the applicant had not been subjected to violence. That conclusion was based on written submissions from officials of the colony and officers of the UIN, who denied that there had been any beatings or that physical force or “special-purpose hardware” (a term designating items including rubber truncheons, handcuffs, and pepper gas) had been used, and a report by the colony doctor, who testified that the applicant had not requested medical aid on that day. It also referred to the preliminary inquiry carried out at the request of other inmates (Mr Artyomov and Mr Gr.).
34. The applicant lodged several more complaints with the Office of the Prosecutor, but to no avail.
35. On 14 August 2003 the applicant lodged a complaint challenging the decision of 6 August 2003 not to institute criminal proceedings. He submitted that the investigation had been incomplete and requested the court to ensure his presence at the hearings. He also asked for free legal assistance and for the opportunity to meet his lawyer before the hearing.
36. On 29 September 2003 the first-instance court rejected the applicant’s complaint as unfounded. The hearing was attended by the prosecutor, Mr K., and by counsel, Mr D., who was apparently acting on behalf of the applicant and had been appointed by the authorities. On 18 November 2003 the judgment was upheld on appeal. The applicant was notified of that decision in writing on 5 December 2003.
37. On 18 January 2002 approximately 260 inmates of the colony went on hunger strike. Approximately forty inmates performed acts of self-mutilation. Three days later a group of officers of a special-purpose unit of the Kaliningrad Regional Directorate for Execution of Sentences arrived at the colony to give assistance in “performing searches in the living quarters of the colony” as the hunger strike and self-mutilations continued. The applicant joined the collective hunger strike in protest against various alleged violations of his rights.
38. On 21 January 2002, at around 3 p.m., the applicant heard noises in the corridor as if the guards were opening the adjacent cells and sending the inmates out. He then heard blows and groans interspersed by the question: “Why do you refuse to eat?” This continued for the next two hours.
39. At 5 p.m. the guardians opened the applicant’s cell and ordered him and the other inmates to step out into the corridor. Then men in black balaclava masks immobilised the applicant, face to the wall, the hands against the wall and legs apart. Two or three of them then started beating him with their fists, feet and truncheons. Between the blows they asked the applicant why he was refusing to eat. When the applicant turned his head towards the person who had asked him questions, he received a blow and was ordered to look only at the wall. The beating continued until the applicant fell down. He was then forced to stand up and the blows went on until the applicant collapsed again. This was repeated several times.
40. One of the men then told the applicant that he and all the others who had gone on hunger strike had provoked the administration to undertake this operation and that the prison authority would “break the applicant down” and force him to eat just like it had done to others. The next time, the man continued, they would kill him and disguise his murder as suicide. Thereafter the applicant was told to go back to his cell and to accept food from then on.
41. When the applicant got up and went towards the cell, one of the prison officials approached him with the question: “Whom did you try to sue in court?” The applicant replied that he had sued the prison administration. The beating then resumed. The applicant fell down and one of the masked men started jumping on the applicant’s stomach. Some time later the applicant was thrown back into the cell.
42. The applicant submitted that all his cellmates, in particular Mr Artyomov, Mr Gr., Mr G., Mr Ks. and Mr T., had been subjected to the same treatment. Mr Artyomov’s description of the events of 21 January 2002, as well as the Government’s account thereof, can be found in the case of Artyomov, cited above, §§ 46 et seq.
43. The applicant also stated that he had scratches and bruises all over his body. He alleged that in that incident he had received no fewer than thirty blows.
44. Shortly after the incident the applicant received aid from a medical assistant. The latter however refused to document the bruises and other injuries on the applicant and his cellmates.
45. The Government denied that physical force had been used in respect of the applicant, with reference to the findings of the domestic inquiry (see below).
46. In the following months the applicant sent a number of complaints of ill-treatment to various State officials, including the Kaliningrad Regional Prosecutor’s Office.
47. In March 2002 the applicant was informed that one of his complaints had been forwarded to Mr K., the prosecutor.
48. On an unspecified date the applicant was notified that his complaint had been rejected. In the reply of 25 March 2002, simultaneously addressed to the applicant and to a number of other detainees who had made similar claims, Mr K. stated that an inquiry had been conducted with regard to their allegations and that these allegations had proved to be unsubstantiated. The letter admitted, however, that on 21 January 2002 a special forces unit of the Ministry of Justice had taken part in searches of the cells in the prison where the applicant was an inmate.
49. On 21 October 2002 the applicant lodged a request with the Regional Prosecutor’s Office seeking the institution of criminal proceedings in respect of the incident of 21 January 2002. The applicant contended in particular that the inquiry by the prosecutor Mr K. had been ineffective. He described the events of that day once again and referred to his cellmates as possible witnesses. On 15 November 2002 the applicant requested the investigating authorities to question additional witnesses.
50. In response the applicant was informed that on 6 and 25 November 2002 his requests had been forwarded to the prosecutor Mr K.
51. On 20 November 2002 Mr M., an investigator from the prosecutor’s office supervising the penal institutions of the Kaliningrad Region, decided not to institute criminal proceedings in respect of the applicant’s complaint. The applicant received a copy of that decision on 4 December 2002. The decision stated, inter alia:
“[A] preliminary examination of the case has nevertheless revealed that the convicts referred to by [the applicant] are giving completely contradictory evidence. Thus, the convict Mr A. asserted that at 4 p.m. on 21 January 2002 he had seen in the corridor ... an officer of the UIN [special forces of the Department of Execution of Penalties] who was giving [the applicant] a kick (Mr A. did not remember with which foot) on the right leg. [The applicant] then collapsed. The officer went on beating [the applicant], delivering at least three blows to his body. Then another agent of UIN came along and started bouncing on the prone body of [the applicant]. Then they lifted [the applicant] and dragged him into the cell.
The convict Mr. G. gave the evidence that on 21 January the events had taken place at around 10 a.m. He saw [the applicant] being continuously beaten by three agents of the UIN and other officers passing by. [The applicant] collapsed under the blows, stood up, and the kicking and beating with fists and rubber truncheons went on. They gave him at least ten blows with fists to the back, against the liver and the sides of the trunk, and ten blows with the rubber truncheons to the back and legs. The applicant] then collapsed and they started bouncing on him.
The convict Mr T. gave the evidence that the events had taken place on 21 January 2002 at noon. He saw different UIN officers (the convict was unable to specify how many there were) hitting and kicking [the applicant], delivering at least ten blows.
The convict Mr M. gave evidence that at 2 p.m. on 21 January 2002 he had been in his cell and had heard groans and the sound of blows coming from the corridor ... Mr M. stated that he had heard from his cell [the applicant] being badly beaten, and also stated that the guards had forced him to withdraw his complaints and other court actions against [the administration of the penal establishment IK-13]. The beating lasted for twenty minutes.”
The decision continued:
“... given the inconsistencies in the submissions of the convicts, the possibility that they have conspired to give evidence discrediting UIN officers cannot be ruled out. At the same time, the Prison Administration refers very negatively to [the applicant], as being persistently disruptive of prison regulations. He is also hostile towards other prisoners’ taking part in extracurricular activities, and sticks to criminals’ rules and traditions. Between 2 November 2000 and 15 October 2002 [the applicant] was subjected to various disciplinary penalties fifty-three times.”
The investigator concluded that there was no need to open a criminal investigation. The applicant’s request for criminal proceedings to be instituted was thus rejected.
52. On 18 December 2002 the applicant lodged a complaint with the Tsentralniy District Court challenging the decision of 20 November 2002. He submitted that the investigation had been incomplete and requested the court to appoint a lawyer to represent him and to secure the attendance of witnesses at the court hearings.
53. By a letter of 16 January 2003 the court informed the applicant that the hearing in his case would take place on 10 February 2003. The court refused to summon witnesses and or to allow the applicant to attend the hearing personally, but agreed to appoint a lawyer for the applicant.
54. On 23 January 2003 the applicant sent a letter to the court in which he insisted on attending in person.
55. By a letter of 4 February 2003 the court rejected the applicant’s request to attend in person and agreed to set up a meeting with a lawyer for the applicant.
56. On an unspecified date the court adjourned the hearing of 10 February 2003 until 17 March 2003. The applicant submits that he has never had a meeting with a lawyer.
57. On 17 March 2003 the first-instance court rejected the applicant’s complaint as unfounded. The hearing was attended by the prosecutor, Mr K., and an appointed counsel who was apparently acting on behalf of the applicant. On 22 April 2003 the decision of 17 March 2003 was upheld on appeal. The applicant was notified of this decision on 12 June 2003.
On 4 February 2002 the applicant brought an action for damages against colony OM-216/13. He complained about the beatings on 21 January 2002. In 2002-03 the applicant submitted several procedural requests. He sought to appear in person at court, for witnesses to be summoned on his behalf, and for certain documents to be obtained from the prosecutor’s office. The applicant also made an unsuccessful attempt to seek the withdrawal of the judge in his case.
58. On 26 April 2004 the Bagrationovskiy District Court, Kaliningrad Region, dismissed his tort claim. The court heard the applicant, his cellmates and prison guards, and based its judgment on the prosecutor’s decision of 20 November 2003 not to institute criminal proceedings and the courts’ judgments of 17 March and 22 April 2003 upholding that decision.
59. The applicant appealed and requested to attend the appeal hearings in person. On 13 October 2004 the Kaliningrad Regional Court, in the applicant’s absence, upheld the judgment of 26 April 2004.
60. By a letter of 4 January 2003 the applicant informed the Registry that on 3 December 2003 the administration of the colony had refused to send the applicant’s letter to the Court at the colony’s expense.
61. He also contended that some of his correspondence was not being sent out at all, whereas other letters had been sent out with substantial delays. The applicant did not refer to any particular letters.
62. For relevant domestic law and practice see Artyomov, cited above, §§ 83 et seq.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60696
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF TAYLOR-SABORI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. Between August 1995 and the applicant’s arrest on 21 January 1996, he was the target of surveillance by the police. Using a “clone” of the applicant’s pager, the police were able to intercept messages sent to him. The pager system used by the applicant and intercepted by the police operated as follows: The sender, whether in the United Kingdom or overseas, would telephone the pager bureau in the United Kingdom via the public telephone network. The pager operator would key the message into a computer and read it back to the sender to confirm its accuracy. The computer message was transmitted via the public telephone system to the pager terminal, from where it was relayed by radio to one of four regional base stations and thence, again by radio, simultaneously to the applicant’s and the police’s clone pagers, which displayed the message in text.
10. The applicant was arrested and charged with conspiracy to supply a controlled drug. The prosecution alleged that he had been one of the principal organisers of the importation to the United Kingdom from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried, along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997.
11. Part of the prosecution case against the applicant consisted of the contemporaneous written notes of the pager messages which had been transcribed by the police. The applicant’s counsel submitted that these notes should not be admitted in evidence because the police had not had a warrant under section 2 of the Interception of Communications Act 1985 (“the 1985 Act”) for the interception of the pager messages. However, the trial judge ruled that, since the messages had been transmitted via a private system, the 1985 Act did not apply and no warrant had been necessary.
12. The applicant pleaded not guilty. He was convicted and sentenced to ten years’ imprisonment.
13. The applicant appealed against conviction and sentence. One of the grounds was the admission in evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998, upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on the private radio system, so that the 1985 Act did not apply and the messages were admissible despite having been intercepted without a warrant.
14. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence, unless the interception is carried out pursuant to a warrant issued in compliance with the Act.
15. At the time of the applicant’s trial there was no provision in British law governing the interception of communications on a private system.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-77850
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF HOLOMIOV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1955 and lives in Chişinău.
7. The applicant was arrested on 24 January 2002 on suspicion of abetting bribery.
8. On 26 January 2002 the Centru District Court issued an order remanding the applicant in custody for a period of thirty days. The court’s reasoning was the following: “the suspect has reached the age at which he may be criminally prosecuted, he is suspected of having committed a serious offence and he is unemployed”.
9. On 4 February 2002 the applicant was indicted inter alia for the offence of aiding and abetting bribery, involving large sums of money, which was punishable by up to twenty years’ imprisonment.
10. On 14 February 2002, the Centru District Court examined a habeas corpus request lodged by the applicant and a request lodged by the prosecutor to prolong the detention. In his habeas corpus request the applicant argued that he was married, had three children and was employed. The court dismissed the applicant’s request but upheld the prosecutor’s request and prolonged the detention.
11. Similar prolongations were ordered up until 23 May 2002, when the investigation was completed and the criminal case file was sent by the prosecution to the Chişinău Regional Court. After that date, the applicant remained in detention without having his detention warrant prolonged. He submitted numerous habeas corpus requests relying inter alia on his medical condition (see paragraph 17 below) and on the impossibility of receiving appropriate medical care in prison due to a lack of specialised doctors and medication, but they were all rejected.
12. On 13 February 2003 the applicant complained inter alia that from 23 May 2002 he had been detained without any warrant. His request was dismissed.
13. On 19 December 2005 the applicant lodged a habeas corpus request with the Centru District Court arguing inter alia that his detention was incompatible with his medical condition due to the lack of appropriate medical care in prison. He asked to be released from detention.
14. On 28 December 2005 Judges Catană, Gordilă and Pitic from the Centru District Court found the applicant’s request well-founded and decided to replace the applicant’s remand in custody with house arrest.
15. It appears that at the time of adoption of the present judgment the applicant was still under house arrest.
16. From 26 January 2002 the applicant was detained in Remand Centre No. 3 of the Ministry of Justice (Izolatorul Anchetei Preliminare Nr. 3). On several occasions he was hospitalised in the Prison Hospital.
17. According to medical certificates submitted by the applicant, and not contested by the Government, he suffered from numerous diseases such as chronic hepatitis, second-degree hydronephrosis (accumulation of urine in the kidney because of an obstruction in the urethra), uric diathesis, increased ecogenicity of pancreatic parenchyma, chronic bilateral pyelonephritis (inflammation of the kidney and pelvis caused by bacterial infection) with functional impairment of the right kidney, hydronephrosis of the right kidney with functional impairment, stones in the urinary tract, somatoform disorder, chronic renal failure, head trauma and generalised anxiety disorder of hypertensive type.
18. On numerous occasions he was prescribed treatment in hospital and even surgery on his right kidney. On 21 October 2002 and 22 April 2003 the applicant was consulted by Dr Spânu, an urologist from the Central Republican Hospital, a hospital belonging to the Ministry of Health, who recommended urgent surgery on his right kidney in order to eliminate an obstruction of the urethra. The doctor advised that a delay might result in the degradation of the kidney and its extirpation. A similar recommendation was reiterated on 23 June 2003 by the Doctor in Chief of the Prison Hospital, Dr. Cuţitaru, who recommended that the operation be carried out in a specialised urological hospital of the Ministry of Health. It does not appear from the Government’s submissions that this recommendation was ever followed up.
19. The Government argued that the applicant was provided with sufficient medical care, but the applicant disputed this.
20. The Government submitted numerous reports drawn up by prison doctors stating that the applicant refused to submit to medical checks and treatment and requested to be transferred to a normal hospital. According to some such reports the applicant argued that the treatment in prison was ineffective and that he needed medication which was not available there.
21. According to a letter addressed to the Centru District Court and to the Prosecutor’s Office by the prison authorities on 15 November 2004, the applicant started a hunger strike to protest against his being treated in the prison.
22. On an unspecified date the applicant complained to the Ministry of Justice about the lack of adequate medical treatment. By a letter dated 23 September 2003 the applicant’s complaint was rejected and he was informed inter alia that he had had medical checks on 43 occasions by prison doctors and by doctors from outside the prison. He had been offered medical treatment in accordance with the “modest possibilities” of the prison medical service and with the medication brought by his relatives. He had been hospitalised in the medical section of the prison on four occasions, where he had received adequate medical treatment, and on two occasions in the Prison Hospital.
23. The applicant submitted a letter from the Doctor in Chief of the Prison Hospital addressed to his lawyer, dated 7 October 2003, in which it was stated that there were no urologists, cardiologists and neurosurgeons among the doctors of the Prison Hospital.
24. In another letter addressed to the applicant’s lawyer by the Chief of the Prison where the applicant was detained, dated 12 October 2005, the latter was informed that there were no such doctors at the prison either and that in the event of an emergency the applicant would be transferred to the Prison Hospital.
25. On 24 January 2002 the General Prosecutor’s Office initiated criminal proceedings against the applicant and another co-accused on charges of abetting bribery.
26. On 12 February 2002 the General Prosecutor’s Office initiated new criminal proceedings against the applicant on charges of fraudulently dispossessing a person of 1,200 United States dollars (USD).
27. On 25 February 2002 the General Prosecutor’s Office initiated new criminal proceedings against the applicant on charges of fraudulent dispossession of two persons of their apartments.
28. All of the above criminal proceedings were joined in one single case file and the criminal investigation lasted until 23 May 2002, when the General Prosecutor’s Office sent the criminal file to the Chişinău Regional Court.
29. On 30 May 2002 the Chişinău Regional Court received the criminal file and a judge was assigned to the case.
30. On 10 June 2002 the judge set 21 June 2002 as the date of the first hearing.
31. On 21 June 2002 the applicant was unable to come to the hearing due to high blood pressure. He was examined by a doctor who issued him a certificate confirming that the applicant had high blood pressure and was not able to attend the hearing. The hearing was adjourned until 1 July 2002.
32. On 1 July 2002 the hearing did not take place since the prosecutor and two of the alleged victims were absent. It was adjourned until 16 July 2002.
33. On 16 July 2002 the hearing was adjourned until 30 July 2002 due to the absence of three of the alleged victims and the applicant’s lawyers.
34. On 30 July 2002 the applicant informed the court that he was not feeling well and asked to be hospitalised. The court decided to send the applicant for a medical examination at the Central Republican Hospital, a hospital belonging to the Ministry of Health. The hearing appears to have been adjourned indefinitely.
35. On 20 August 2002 the applicant complained to the court that the authorities were refusing to send him for a medical examination, and that he had therefore commenced a hunger strike on 15 August 2002.
36. On 12 September 2002 the judge assigned to the case wrote to the prison authorities and asked them to comply with the decision of 30 July 2002.
37. On 26 September 2002 the applicant complained to the Ministry of Justice about the non-enforcement of the decision of 30 July 2002.
38. It appears that on an unspecified date the prison authorities had attempted to take the applicant to the Prison Hospital, but that he had refused on the ground that the decision of 30 July 2002 provided for his examination in the Central Republican Hospital. The prison authorities informed the judge assigned to the case about the applicant’s refusal.
39. On 10 October 2002 the applicant wrote again to the judge informing him that the prison authorities had refused to take him to the Central Republican Hospital as provided in the decision of 30 July 2002, and as a result his medical condition was becoming worse. He informed the judge that he had no other solution but to go on hunger strike again.
40. It appears that one week later the applicant was taken to the Central Republican Hospital for examination since the criminal file contains medical documents from the Central Republican Hospital dated 17 October 2002.
41. On 24 October 2002 the resumption of the hearings was scheduled. However, the proceedings were adjourned due to the applicant’s medical condition. The applicant was seen by a doctor, who concluded that he was suffering from the consequences of a brain disease (consecinţele afecţiunii organice a creierului cu sindrom cerebral astenic) and noted that he refused the treatment prescribed to him.
42. On 28 October 2002 the prosecutor and one of the applicant’s lawyers were absent. The applicant declared that he was not satisfied with his lawyers and that he wanted to instruct other lawyers. He requested an adjournment. The hearing was adjourned until 12 November 2002.
43. On 12 November 2002 the hearing was adjourned due to the fact that the applicant had not instructed a new lawyer.
44. On 19 November 2002 the hearing was adjourned until 22 November 2002 at the request of the applicant’s new lawyer, who intended to present evidence confirming the applicant’s serious medical condition.
45. On 22 November 2002 the applicant’s lawyer presented medical documents and requested that the applicant undertake a psychiatric examination in order to establish his competence to plead to the charges. The request was allowed and a psychiatric examination of the applicant was ordered.
46. On 11 December 2002 a commission of psychiatric doctors concluded that a psychiatric examination would only be possible after the applicant’s admission to the Psychiatric Hospital.
47. On 4 January 2003 Judge Buruiană ordered that the applicant be admitted to the Psychiatric Hospital in order to carry out the psychiatric examination ordered on 22 November 2002.
48. On 21 January 2003 the psychiatric examination was completed and the applicant was found competent to plead to the criminal charges. The medical report was sent to the court on 28 January 2003.
49. On 13 February 2003 the applicant asked the court inter alia about the state of the proceedings and was informed on 20 February by Judge Buruiană that the hearings would be resumed in March 2003 after the lawyer of the other co-accused had returned from a business trip to the Russian Federation.
50. On 11 March 2003 a hearing was adjourned until 8 April 2003 on the ground of the applicant’s request for a change of lawyer.
51. On 8 April 2003 the applicant challenged the judge assigned to his case on the ground inter alia that this judge would prolong the examination of the case, would not allow him to undergo surgery on his kidney as recommended by Dr Spânu, would be biased and would reject his habeas corpus requests. The challenge was dismissed and the hearing was adjourned in order to request information from the prison authorities about the applicant’s medical condition.
52. On 21 April 2003 the applicant requested an adjournment of the hearing on the ground that he was not feeling well and that he needed medical treatment. The hearing was adjourned until 25 April 2003.
53. On 22 April 2003 the applicant was examined by Dr Spânu, an urologist, who prescribed urgent surgery on his kidney (see paragraph 18 above).
54. On 25 April 2003 the hearing was resumed and the court examined and dismissed a habeas corpus request lodged by the applicant who relied mainly on his medical condition. The hearing was then adjourned.
55. On 13 May 2003 the applicant again challenged the judge on the ground that he refused to allow his release on medical grounds; the challenge was dismissed. He also asked that an ambulance be called; this request was also dismissed, the court observing that the applicant was attempting to prolong the criminal proceedings against him. The court also gave the applicant an official warning since he had raised his voice to the judge. The applicant finally dismissed his lawyer and he was given time to sign a contract with another lawyer.
56. On 21 May 2003 the applicant was absent from the hearing on grounds of health and the court adjourned it until 6 June 2003.
57. On 6 June 2003 the applicant was absent again and the court adjourned the hearing until 23 June 2003.
58. On 23 June 2003 the prosecutor informed the court that, according to the new Code of Criminal Procedure which entered into force on 12 June 2003, the Chişinău Regional Court no longer had jurisdiction to examine the criminal case against the applicant. He requested that the case be transmitted to the Centru District Court for examination. The court allowed the Prosecutor’s request and the criminal file was sent to the Centru District Court.
59. On 21 October 2003 the President of the Centru District Court wrote to the Supreme Court of Justice and asked it to order that the case be transferred to the Court of Appeal because, inter alia, following the judiciary reform of 2003 the Court of Appeal was the successor instance of the Chişinău Regional Court which had already started to examine the case.
60. On 31 October 2003 the Supreme Court of Justice rejected the request of the President of the Centru District Court and drew her attention to the need to ensure the examination of the case within a reasonable time.
61. On 18 November 2003 a hearing was held for the first time before the Centru District Court. The applicant challenged the newly appointed judge, Mr Alerguş, on the ground that he would dismiss all his requests. The challenge was dismissed the same day and the hearing was adjourned.
62. On 16 December 2003 the hearing was adjourned until 19 January 2004 due to the absence of the prosecutor and one of the alleged victims.
63. On 19 January and 11 February 2004 the hearings were adjourned because the judge was ill.
64. On 25 February 2004 the judge was involved in a conference and the hearing was adjourned until 25 March 2004.
65. On 25 March 2004 the judge was involved in a hearing in an unrelated case and the hearing was adjourned until 29 April 2004.
66. On 29 April 2004 the applicant was absent due to his hospitalisation in the Prison Hospital and the hearing was adjourned until 27 May 2004.
67. On 27 May 2004 the court started to examine the merits of the case by questioning one of the victims. Since other victims and witnesses were absent, the court adjourned the hearing until 28 June 2004.
68. On 28 June 2004 the lawyer of the applicant’s co-accused was absent and the co-accused requested an adjournment. The court decided to adjourn the hearing for 23 September 2004 in view of the impending judicial vacation.
69. On 23 September 2004 the hearing was adjourned until 18 October 2004 because Judge Alerguş had resigned from his functions.
70. On 1 October 2004 the applicant complained to the Superior Council of Magistrates about the excessive length of the criminal proceedings against him. He received an answer dated 1 November 2004 in which he was informed inter alia that the President of the Centru District Court had been requested to take all necessary measures to ensure the examination of the case within a reasonable time.
71. On 18 October 2004 the hearing was adjourned until 18 November 2004 because the same judge, Judge Alergus, was ill.
72. On 18 November 2004 the applicant dismissed his lawyer and a pro bono lawyer was appointed. The applicant requested to be examined by a medical commission, but his request was dismissed. He unsuccessfully challenged the judges who rejected his request.
73. On 19 November 2004 the applicant requested that his pro bono lawyer be dismissed on grounds of lack of experience and asked to be examined by a medical commission; however, his requests were dismissed. One of the alleged victims was heard and the hearing was adjourned until 24 November 2004.
74. On 24 November 2004 the court heard a witness and adjourned the hearing until 26 November 2004.
75. On 26 November 2004 the applicant concluded a representation contract with another lawyer and the hearing was adjourned until 21 December 2004.
76. On 21 December 2004 the applicant’s new lawyer was involved in another case and could not attend the hearing. The court adjourned the hearing until 23 February 2005.
77. On 23 February and 1 March 2005 the judge was ill and the hearing was adjourned until 1 April 2005.
78. On 1 April 2005 the applicant was hospitalised in the Prison Hospital and the prosecutor was absent. The hearing was adjourned until 5 May 2005.
79. On 5 May 2005 there was a change of prosecutors and the new prosecutor requested an adjournment in order to study the case file. The hearing was adjourned until 1 June 2005.
80. On 1 and 2 June 2005 the court heard the statements of the applicant and his co-accused in respect of the charges against them. The applicant also submitted that he was ill and was unable to participate in the court hearing. The court adjourned the hearing until 28 June 2005.
81. On 28 June 2005 the court read out the declarations of several witnesses made during the investigation stage of the proceedings. The applicant requested again to be examined by a medical commission, but his request was dismissed and he was warned not to attempt to prolong the examination of the case. The court adjourned the hearing until 15 September 2005.
82. On 15 September 2005 the hearing was adjourned until 7 October 2005 due to the illness of the judge.
83. It appears that between 15 September 2005 and 11 January 2006 (the date on which the Government submitted a copy of the criminal case file to the Court) no hearings took place.
84. At the date of the adoption of its judgment the Court had not been informed by the parties that the criminal proceedings before the Centru District Court had been concluded.
85. Article 25 of the Constitution of the Republic of Moldova, insofar as relevant, states as follows:
“(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum period of twelve months.”
86. The relevant parts of the old Code of Criminal Procedure, in force until 12 June 2003, read as follows:
“Section 79. The length of detention on remand and its prolongation
Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The period of detention on remand may be extended... to a maximum of six months, while in exceptional cases... to a maximum period of twelve months. The prolongation of the detention shall be ordered by a judge on the basis of a motivated request by the prosecutor.
After the criminal case file has been sent to a court, the accused may be detained until the final resolution of the case, which should take place within a reasonable time.”
87. The relevant provisions of the new Code of Criminal Procedure, in force since 12 June 2003, read as follows:
Section 176
“(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence.
(2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1).
(3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria:
1) the character and degree of harm caused by the offence,
2) the character of the ... accused,
3) his/her age and state of health,
4) his/her occupation,
5) his/her family status and existence of any dependants,
6) his/her economic status,
7) the existence of a permanent place of abode,
8) other essential circumstances.
...
Section 177
...
(2) Detention on remand ... can be applied only on the basis of a court decision...
Section 185. Detention on remand
(1) Detention on remand means the detention of the suspect, accused or indicted person in a state of arrest in places and in conditions provided for by law.
(2) Detention on remand may be applied to someone in the circumstances and in the conditions provided for in Article 176, as well as when:
1) the suspect, the accused or the indicted person does not have a permanent place of residence on the territory of the Republic of Moldova;
2) the suspect, the accused or the indicted person is unknown;
3) the suspect, the accused or the indicted person has breached the conditions imposed on him/her concerning other preventive measures.
...
(4) The decision by which detention on remand is ordered can be challenged by way of an appeal before the hierarchically superior court.
Section 186. The length of the remand and its prolongation
(1) The duration of a person’s remand starts to run from the moment of his or her arrest, or, if the person was not arrested, from the moment of enforcement of the court decision ordering the remand. ...
(2) Remand during the investigation stage of the proceedings, before the case file is sent to the competent court [by the prosecutor] shall not be longer than thirty days, except in cases provided for in the present code. The running of the duration of the remand during the investigation stage of the proceedings ceases on the date when the prosecutor sends the criminal case file to a court and when the detention on remand is revoked or is replaced by another preventive measure which does not involve a deprivation of liberty.
...
(5) Any prolongation of detention on remand may not be for a period longer than 30 days.
(6) If it is necessary to prolong the duration of detention on remand of an accused, the prosecutor shall, not later than 5 days before the expiry of the remand order, make a request in that respect to the investigating judge.
(7) When deciding on the prosecutor’s request for the prolongation of the remand, the investigating judge, or, as the case may be, the court, has the right to replace detention on remand by home detention, release under judicial control or bail.
(8) After the sending of the bill of indictment to a court all requests concerning detention on remand shall be examined by the court in charge of the criminal case.
(9) The prolongation of the duration of remand for up to 6 months shall be decided by the investigating judge on the basis of a request of the district prosecutor. In case of a necessity to prolong the duration of remand for over 6 months the request shall be lodged by the district prosecutor with the consent of the Prosecutor General or his deputies.
(10) The decision concerning the prolongation of the detention on remand may be challenged by way of an appeal to the hierarchically superior court.
Section 190
A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail.
Section 191. Provisional release under judicial control of a remanded person
(1) A provisional release under judicial control of a remanded person, or of a person in respect of whom a request for detention on remand has been made, may be granted by the investigating judge or by a court only in case of offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment.
(2) A provisional release under judicial control may not be granted to an accused who has outstanding criminal convictions for serious, very serious or exceptionally serious offences or if there exists information that he or she will commit another offence, will try to influence witnesses, will try to destroy evidence or will abscond.
(3) A provisional release under judicial control of a remanded person shall be accompanied by one or more of the following obligations:
1) not to leave the town of residence except in the conditions set by the investigating judge or by the court;
2) to inform the investigation organ or the court of any change of address;
3) not to go to certain places;
4) to appear before the investigation organ or the court when summonsed;
5) not to make contact with certain persons;
6) not to commit acts capable of hindering the discovery of the truth;
7) not to drive cars or exercise any profession of the kind used for committing of the offence.
...
Section 195
(1) A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed.
Section 329
(1) In examining a case the court, ex-officio or at the request of the parties and having heard their opinion, shall have the power to apply, revoke or discontinue the preventive measure applied to the accused. A new request for the application, replacement or revocation of a preventive measure may be submitted if there are grounds for such a request, but not earlier than one month from the date of entry into force of the last decision in this respect or if new circumstances have arisen.
Section 345
(1) Within ten days from the date on which the case was distributed for judgment, the judge or the bench, having examined the case-file, shall set a date for the preliminary hearing. The preliminary hearing in cases where the person is arrested shall be held urgently and given priority.
... (4) At the preliminary hearing the following issues shall be examined:
... 6) preventive and protective measures.
Section 351
... (7) In setting a date for the examination of the case, the court shall order the maintenance, revocation or discontinuation of preventive measures, in conformity with the present Code.”
88. In Drugalev v. the Ministry of Internal Affairs and the Ministry of Finance (final judgment of the Chişinău Court of Appeal of 26 October 2004), three years after being released from detention on remand, the applicant claimed and obtained compensation in the amount of approximately 950 euros (EUR) for having been held in inhuman and degrading conditions for approximately six months. The case was examined by only two instances, since the judgment of the Chisinau Court of Appeal was not challenged before the Supreme Court of Justice and the overall length of the proceedings was approximately 1 year and 5 months. The court based its award on Articles 2 and 3 of the Convention.
89. In Eleonora Bologan v. the Ministry of Internal Affairs and the Ministry of Finance (civil judgment of the Balti Court of Appeal of 21 March 2006), the applicant was awarded EUR 3,160 for being subjected to torture by three male policemen during the investigation stage of the criminal proceedings against her. The domestic courts based their judgment on a final criminal judgment against the policemen, by which they were found guilty and sentenced for committing acts of torture.
90. In the cases of Cotorobai and Castraveţ (judgments of 9 December 2004 and of 1 October 2005 of the Centru District Court and of the Botanica District Court respectively) the courts examining habeas corpus requests lodged by the applicants and ordered their release on the basis inter alia of their poor state of health. In particular in the case of Cotorobai the court stated that “according to medical certificates and to the applicant’s medical records, he suffers from an ophthalmologic disease which needs treatment”. In the case of Castraveţ the Botanica District Court stated that “the applicant’s lengthy detention contributed to the aggravation of some of his diseases”.
91. Article 53 of the Constitution reads as follows:
“(1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage.
(2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.”
92. The relevant provisions of the Civil Code read as follows:
“Section 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts
(1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-58240
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF STEEL AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Not necessary to examine Art. 5-3;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-b;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 11;Not necessary to examine Art. 13;No violation of Art. 5-1 (first applicant);No violation of Art. 5-1 (second applicant);Violation of Art. 5-1 (third, fourth and fifth applicant);No violation of Art. 5-1 (first and second applicant);No violation of Art. 5-5;No violation of Art. 6-3-a;No violation of Art. 10 (first applicant);No violation of Art. 10 (second applicant);Violation of Art. 10 (third, fourth and fifth applicants);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos;Simon Brown
TEXT: 6. The first applicant, Ms Helen Steel, was born in 1965 and lives in London.
7. On 22 August 1992, together with approximately sixty others, she took part in a protest against a grouse shoot on Wheeldale Moor, Yorkshire. During the morning, the protesters attempted to obstruct and distract those taking part in the shoot. At midday the shooting party broke for lunch and did not recommence until approximately 1.45 p.m., when the police arrived and an officer began warning the protesters, through a public address system, to stop their behaviour. The protesters ignored this request and the police made a total of thirteen arrests.
8. Ms Steel was arrested by a police officer at approximately 2 p.m. for “breach of the peace” (see paragraphs 25–29 below). According to the police she was intentionally impeding the progress of a member of the shoot by walking in front of him as he lifted his shotgun to take aim, thus preventing him from firing.
9. She was taken to a police vehicle where she was detained until about 3.15 p.m., when she was transferred to a prison van. At approximately 7.15 p.m. she was taken to Whitby police station. Upon review, her continued detention there was authorised at 11 p.m. “to prevent any further breach of the peace” and subsequently, at 6.25 a.m. on 23 August, “in order to place her before the court later [that] morning”. In total she was detained for approximately forty-four hours.
10. At 12.56 a.m. on 23 August 1992 she was cautioned and charged. The charge-sheet stated:
“That you did on Saturday 22 August 1992 at Wheeldale Beck in the Parish of Sefton behaved [sic] in a manner whereby a breach of the peace was occasioned. The complaint of PC 676 Dougall of North Yorkshire Police who applies for an order requiring that you enter into a recognizance with or without sureties to keep the peace. Pursuant to section 115 of the Magistrates’ Courts Act 1980 [“the 1980 Act” – see paragraphs 32–33 below].”
At 9.40 a.m. on 24 August 1992, she was further charged with using “threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress”, contrary to section 5 of the Public Order Act 1986 (“the 1986 Act” – see paragraph 30 below).
11. She attended court on the morning of 24 August 1992 and was released on conditional bail, the condition being that she was not to attend any game shoot in North Yorkshire during the period of remand.
12. Ms Steel’s trial took place before the Whitby Magistrates’ Court between 15 and 20 February 1993. She was acquitted on the section 5 charge relating to the morning of 22 August 1992, and convicted on the section 5 charge relating to the afternoon of the same day. The magistrates found the complaint regarding the alleged breach of the peace proved but did not specify what behaviour of the applicant justified this conclusion or whether the complaint related to the morning or the afternoon.
13. Ms Steel appealed. Her appeal was heard by way of rehearing on 1 December 1993 by the Teesside Crown Court, which upheld the magistrates’ findings, imposed a fine of 70 pounds sterling (GBP) for the section 5 offence, and, in respect of the breach of the peace, ordered the applicant to agree to be bound over for twelve months in the sum of GBP 100 (see paragraph 31 below).
Ms Steel refused to be bound over, and was committed to prison for twenty-eight days.
14. The second applicant, Ms Rebecca Lush, was born in 1973 and lives in Warsash, Hampshire.
15. On 15 September 1993, she took part in a protest against the building of an extension to the M11 motorway in Wanstead, London. During the course of that day a group of twenty to twenty-five protesters repeatedly broke into a construction site, where they climbed into trees which were to be felled and onto some of the stationary machinery. On each occasion they were removed by security guards. The protesters did not offer any resistance and there were no incidents of violence or damage to machinery.
16. Ms Lush was arrested at approximately 4.15 p.m. while standing under the “bucket” of a “JCB” digger, for conduct “likely to provoke a disturbance of the peace”. She was taken to Ilford police station where she was charged at 5.30 p.m. The charge-sheet states:
“Arrested as a person whose conduct on 15 September 1993 at Cambridge Park, Wanstead, was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace or Magistrate to be dealt with according to law.”
She was kept in custody until 9.40 a.m. the following day (approximately seventeen hours’ detention), on the grounds that if released she would cause a further breach of the peace.
17. She appeared before Redbridge Magistrates’ Court on the morning of 16 September 1993 to answer an allegation that she had engaged in conduct likely to provoke a disturbance of the peace. The proceedings were adjourned and she was released.
18. The proceedings resumed on 14 December 1993, when the allegation of conduct likely to cause a breach of the peace, brought under section 115 of the 1980 Act, was found to have been made out. Ms Lush was ordered to agree to be bound over for twelve months to keep the peace and be of good behaviour in the sum of GBP 100. She refused to be bound over and was committed to prison for seven days.
19. On 23 December 1993 Ms Lush requested the magistrates to state a case to the High Court (see paragraph 36 below). The magistrates replied on 24 December that under section 114 of the 1980 Act they would require a recognizance of GBP 500 that the applicant would prosecute the appeal without delay, submit to judgment and pay any costs ordered by the High Court. After correspondence between Ms Lush’s representatives and the clerk of the court concerning the applicant’s means, the magistrates agreed to reduce the recognizance to GBP 400. However, Ms Lush was unable to continue with the appeal since her application for legal aid was refused.
20. Ms Andrea Needham, born in 1965, Mr David Polden, born in 1940, and Mr Christopher Cole, born in 1963, all live in London.
21. On 20 January 1994, at approximately 8 a.m., they attended the Queen Elizabeth Conference Centre in Westminster, London, where the “Fighter Helicopter II” Conference was being held, in order to protest with three others against the sale of fighter helicopters. The protest took the form of handing out leaflets and holding up banners saying: “Work for Peace and not War.”
22. At approximately 8.25 a.m. the three applicants were arrested by police officers. Ms Needham was holding a banner and Mr Polden and Mr Cole were distributing leaflets. All three applicants were taken to Charing Cross police station where the custody record for each states the “circumstances” (the word “charges” having been deleted) as:
“Breach of the peace, common law.
On 20 January 1994 at Queen Elizabeth Conference Centre, Victoria Street, London SW1, constituted or was likely to provoke a disturbance of the peace to be brought before a Justice of the Peace to be dealt with according to law.
Contrary to common law.”
23. At approximately 10.40 a.m. the applicants were taken to Bow Street Magistrates’ Court where they were detained in a cell. They were brought before the magistrates at 3.45 p.m., having been detained for approximately seven hours. The magistrates adjourned the matters due to lack of time and the applicants were released.
24. On 25 February 1994, when the proceedings were resumed, the prosecution decided not to call any evidence and the magistrates dismissed the case against the applicants.
25. Breach of the peace – which does not constitute a criminal offence (R. v. County Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 260) – is a common-law concept dating back to the tenth century. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981:
“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated…” (p. 426)
He continued:
“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)
26. In October 1981, in a differently constituted Court of Appeal giving judgment in R. v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board ([1982] Queen’s Bench Reports 458), which concerned a protest against the construction of a nuclear power station, Lord Denning, Master of the Rolls, defined “breach of the peace” more broadly, as follows:
“There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker – by lying down or chaining himself to a rig or the like – he is guilty of a breach of the peace.” (p. 471)
27. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell, rather than ex parte Central Electricity Generating Board, in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:
“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)
28. In another case before the Divisional Court, Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] Justice of the Peace Reports 155), Lord Justice Simon Brown stated:
“… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163)
29. A person may be arrested without warrant by exercise of the common-law power of arrest, for causing a breach of the peace or where it is reasonably apprehended that he is likely to cause a breach of the peace (Albert v. Lavin [1982] Appeal Cases 546 at 565). This power was preserved by the Police and Criminal Evidence Act 1984 (sections 17(6) and 25(6)).
30. Section 5 of the Public Order Act 1986 (“the 1986 Act”) creates the offence of threatening, abusive, insulting or disorderly conduct likely to harass, alarm or distress others. It is triable before magistrates and punishable by fine. It is a defence to a charge under section 5 for the accused to show that the behaviour in question was reasonable in the circumstances.
31. Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”).
A binding over order requires the person bound over to enter into a “recognizance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognizance. A binding-over order is not a criminal conviction (R. v. London Quarter Sessions, ex parte Metropolitan Police Commissioner [1940] 1 King’s Bench Reports 670).
32. Section 115 of the 1980 Act provides:
“(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint.
(…)
(3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.”
33. The procedure under section 115 of the 1980 Act is begun by laying a formal complaint, usually by a police officer. Before the magistrates can make an order they must be satisfied, on the basis of admissible evidence, that (1) the defendant’s conduct caused a breach of the peace or was likely to cause one (R. v. Morpeth Ward Justices, ex parte Ward [1992] 95 Criminal Appeal Reports 215); and (2) unless the order is made, there is a real risk that the defendant will cause a further breach of the peace in the future.
34. Although a binding-over order is not a criminal conviction, these proceedings have been described as analogous to criminal proceedings. In the past it was unclear whether the court should apply the criminal or the civil standard of proof when deciding whether facts exist which warrant a binding-over order at the conclusion of the proceedings. However, in Nicol and Selvanayagam v. DPP (cited above), Lord Justice Simon Brown stated:
“It is common ground that, although no criminal conviction results from finding such a complaint proved, the criminal standard of proof applies to the procedure.”
35. In addition to the above statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings (for example, a witness, acquitted defendant or a defendant who has not yet been acquitted or convicted), if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores (“conduct which has the property of being wrong rather than right in the judgment of the vast majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130).
36. An order of the magistrates to require a person to enter into a recognizance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. Before stating a case, the magistrates may, under section 114 of the 1980 Act, require the appellant to enter into a recognizance to pursue the appeal and to pay costs. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law.
37. In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law-reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that:
“We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a binding-over order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222, § 6.27)
The Law Commission therefore recommended abolition of the power to bind over.
38. Under section 108 of the Courts and Legal Services Act 1990, a civil action, for example for false imprisonment, may lie against a magistrate in respect of any act or omission in the purported execution of his or her duty only if it can be proved that he or she acted both in bad faith and in excess of jurisdiction.
VIOLATED_ARTICLES: 10
5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 10
5
6
NON_VIOLATED_PARAGRAPHS: 5-1
5-5
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-a


ITEMID: 001-88158
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WOZNIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi
TEXT: The applicant, Mr Patryk Woźniak, is a Polish national who was born in 1977 and lives in Bielsko-Biała. He was represented before the Court by Mr S. Sikora, a lawyer practising in Bielsko-Biała. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 March 2002 the applicant was arrested on the charge of, inter alia, money laundering and attempted value added tax fraud.
On 14 March 2002 the decision on presenting charges against the applicant was served on him and he was heard as a suspect. An interrogation report was prepared. On 21 March 2002 the grounds for the decision were given. The prosecutor listed documents and other evidence, which supported the charges brought against the applicant. They were served on the applicant and his defence counsel on 27 and 26 March 2002 respectively.
On 15 March 2002 the Bielsko-Biała District Court held a hearing during which the applicant was questioned and a detention order was issued against him. In addition to such factors as the strong likelihood that the applicant had committed the offences he was charged with and the severity of the anticipated penalty, the court underlined that there were significant discrepancies in testimonies given by the applicant and two other suspects. These differences were found in particular in those on the manner in which the company’s transactions had been carried out. The court stressed that the detention of all co-accused was necessary to prevent them agreeing on one version of the events, which could have impeded the investigation.
On 19 March 2002 the applicant’s defence counsel appealed. He challenged conclusions reached by the court and prosecutor and submitted several documents supporting the applicant’s plea of innocence.
On several later dates the applicant was again summoned to testify, inter alia, on 4 April, 14 June, 9 and 25 July and 11 September 2002. He refused however to answer any of the prosecutor’s questions.
On 8 April 2002 the Bielsko-Biała Regional Court held a hearing concerning the applicant’s detention during judicial proceedings, at which his defence counsel was present. The court upheld the detention order of 15 March 2002.
The applicant’s detention was subsequently extended by orders of, inter alia, 11 June and 29 August 2002, each time after a hearing at which the applicant’s defence counsel was present. In the decisions’ reasoned grounds the courts referred to the strong probability that the applicant had committed the offences and to a risk of a severe sentence being imposed on him, in particular in view of the serious financial damage caused by the offences concerned. The courts further stressed contradictions in the testimonies of co-suspects.
The applicant’s lawyer tried to challenge the applicant’s detention by using different legal avenues. He lodged appeals against the detention orders on, inter alia, 4 July and 5 September 2002. In addition, on 8 May 2002 he lodged a request for release from detention. All his applications were unsuccessful. He also requested the application of another preventive measure in place of detention (on 18 April, 31 July, 12 August, and 17 September 2002). His requests were all refused.
On 17 April 2002, the applicant’s lawyer allegedly requested the Bielsko-Biała Prosecutor to give him access to the case file. He further requested a copy of the report of the applicant’s and two other suspects’ interrogations. The Government submitted that such requests had never been lodged with the prosecutor’s office. The applicant failed to submit any evidence thereof; neither had he submitted observations in this respect.
On 13 June 2002 the applicant’s defence counsel (by a letter dated 11 June 2002) lodged requests for access to the case file and the copy of the record of interviews with the applicant. He further alleged that his request of 17 April 2002 had never been examined and he had been denied contact with his client.
On 24 June 2002 the Bielsko-Biała Regional Prosecutor denied that the request for access to the case file of 17 April 2002 had ever been lodged and called the defence counsel to provide the relevant copy. Further, he failed to answer requests dated 11 June 2002, since the prosecutor examined only the defence counsel’s complaints that his previous request had not been replied to and that his contacts with his client had been impeded. Counsel was served with replies to his requests on 25 and 28 June 2002 respectively (see below).
On 25 June 2002 the Bielsko-Biała Prosecutor refused counsel’s request of 13 June 2002 for access to the case file, without referring to his other request for a copy of the interrogation report (the prosecutor replied to the latter on 28 June 2002 – see below). He justified his decision by reference to the “important interests of the investigation” and referred to the need to carry out certain actions at the current stage of the proceedings, which made it impossible to grant the request.
On 1 July 2002 the applicant’s lawyer lodged an appeal dated 27 June 2002 against the decision of 25 June 2002, arguing, inter alia, that the legal provision under which the authorities in charge of investigation authorised access to the case file, namely Article 156§5 of the Code of Criminal Proceedings, should not be interpreted in a way which allows for refusal of access to the case file, in particular with temporal restrictions.
On 23 July 2002 the appeal was dismissed by the Katowice Appellate Prosecutor. He emphasised the need to secure the important interests of the investigation, in view of its “character” and “the links between the suspects”.
On 28 June 2002 the counsel was informed by the BielskoBiała Regional Prosecutor, in reply to his request of 13 June 2002, that his request for a copy of the record of interview could not be satisfied as the case file had been transferred to the appellate court, together with the appeal. He was also informed that a requested copy would be sent to him as soon as the case file was returned by the court.
On 12 August 2002 the applicant’s defence counsel repeated his request for access to the case file and the copy of the applicant’s record of interview. He relied on Article 42 § 2 of the Constitution and Article 156 § 5 of the Code of Criminal Proceedings.
On 14 August 2002 the Bielsko-Biała Regional Prosecutor informed the defence counsel that his requests could not be examined as the case file had been transferred to the Katowice Appellate Prosecutor.
On 10 September 2002 the Katowice Regional Prosecutor having examined the counsel’s request for access to the case file, dismissed it, relying on Article 156 § 5 of the Code of Criminal Proceedings. The decision was justified by reference to the “important interests of the investigation”. It was further stressed that since evidence proceedings were still pending it was not possible to grant the request.
On 18 September 2002 the applicant’s defence counsel appealed, arguing that he had been requesting access to the case file for a long time and it was indispensible for the defence rights of the applicant.
On 11 October 2002 the Katowice Appellate Prosecutor dismissed the appeal on the ground that if the suspects were given access to the case file the proper conduct of the investigation could be influenced, especially since the collection of the evidence had not been completed.
On 14 October 2002 the Regional Prosecutor supplemented the charges against the applicant: he was also charged with acting in an organised criminal group.
On 31 October 2002 the applicant’s defence counsel was acquainted with the case file.
On 8 November 2002 certified copies of the applicant’s record of interview were sent to his defence counsel.
On 12 November 2002 the investigation was closed.
On 20 November 2002 the Regional Prosecutor lodged a bill of indictment numbering sixty-five pages with the Bielsko-Biała District Court. The applicant was charged on four counts, inter alia, money laundering, including participation in an organised criminal group. The bill listed thirty-seven witnesses to be summoned and 247 pieces of documentary evidence collected in the investigation.
On 27 November 2002 a hearing was held by the Bielsko-Biała District Court in respect of the prosecutor’s request for a further extension of the applicant’s detention. In response, the applicant’s defence counsel requested a decision on bail. He proposed to make a deposit of 100,000 Polish zlotys (PLN). The court decided that the applicant could be released if he put up bail of PLN 200,000 by 29 November 2002.
On 29 November 2002 the Bielsko-Biała District Court ordered the release of the applicant from detention and the application of another preventive measure in its place (bail). The court considered, inter alia, that there was no longer a risk that the applicant would tamper with evidence.
The proceedings are currently pending before the Żyrardów District Court.
Access to the file in the course of investigation is governed by Article 156 § 5 of the Code of Criminal Procedure of 1997, which provides, in so far as relevant, that leave to consult the file and to make copies of the documents in the file is granted only with the consent of the authority conducting the investigation.