ITEMID: 001-61058
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF McGLINCHEY AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award
JUDGES: Jean-Paul Costa;Nicolas Bratza
TEXT: 8. The applicants Andrew George McGlinchey and Natalie Jane Best, born in 1985 and 1990 respectively, are the children of Judith McGlinchey (born in 1968). The applicant Hilary Davenport, born in 1945, is the mother of Judith McGlinchey.
9. On 3 January 1999, Judith McGlinchey died in Pinderfields Hospital, Wakefield, West Yorkshire, whilst in the care of the Home Office of the United Kingdom government as a convicted prisoner.
10. Judith McGlinchey had a long history of intravenous heroin addiction and was asthmatic, for which she had been admitted to hospital on six occasions during the previous year.
It is purported that Judith McGlinchey had, prior to being imprisoned, told her mother, who now cares for her children Andrew and Natalie, that she wanted rehabilitation assistance to rid herself of the heroin addiction. She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays.
11. After having been convicted of theft, Judith McGlinchey was sentenced at Leeds Magistrates’ Court, on 7 December 1998, to four months’ imprisonment, despite an alternative proposal for a probation order with a condition that she be treated for her addiction. Thereafter, she was detained at New Hall Prison, Wakefield. She stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin.
12. At the health screening on her arrival at the prison on 7 December 1998, Judith McGlinchey was noted as not seeming excessively withdrawn, depressed or anxious. She weighed 50 kg. She complained of swelling to her left arm, withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing, and was kept in the health-care centre pending an examination by a doctor. That evening, Judith McGlinchey telephoned her mother complaining of her infected arm and asthma. During the night, when she was observed to be wheezing, she was given an inhaler. She was also given paracetamol.
13. The prison medical records showed thereafter that she was complaining of withdrawal symptoms and that she was vomiting frequently. The records consisted of the continuous medical record, prescription and administration charts and the nursing assessment notes. Her blood pressure, temperature and pulse were checked daily.
14. On 8 December 1998 Judith McGlinchey was examined by Dr K., the prison senior medical officer, who prescribed antibiotics for her arm, inhalers for her asthma and medication, Lofexidine, to appease the symptoms of heroin withdrawal. The nursing notes stated that she threw a cup of tea across the cell, was “locked in for education” and that during the night she was very loud and demanding. Lofexidine was not administered at 12 noon. The applicants alleged that this was a punishment, while the Government submitted that it was on the instructions of the doctor due to a drop in Judith McGlinchey’s blood pressure. The entries in the nursing notes show that Judith McGlinchey was seen by a medical officer that morning and the drugs record sheet, signed by Dr K., indicates that after a blood pressure reading of 80/60 the next dose of Lofexidine was omitted at 12 noon.
15. On 9 December 1998 the record noted that she remained demanding. She had been told to clean her cell prior to education, which was a reference to the routine tidying-up of the cell and in accordance with normal practice. It was noted that she refused to comply. She was locked in during the education period and declined every meal. In the evening her weight was recorded as 43 kg. It was noted that she had vomited during the evening and had complained of vomiting during the night. She was encouraged to take fluids and given two doses of a mild anti-nausea drug (magnesium trisilicate) by the nursing staff.
16. Her situation was reviewed by Dr K. on 10 December 1998. As stated later in a statement to the coroner dated 4 January 1999, her medical readings (temperature, pulse and blood pressure) remained satisfactory. She did not appear dehydrated – it was noted that her tongue was moist and clean – but as she was still complaining of vomiting she was given an injection of anti-emetic medication. She complained of diarrhoea and stomach cramps to the nurse on duty during the night. A dose of magnesium trisilicate was given for nausea but it was recorded that this had little effect.
17. On 10 December 1998 Judith McGlinchey called her mother in tears, complaining that despite having been given an injection, she could not stop vomiting and was getting no other medical support to assist her to come off drugs. She said that she was having to clean up her own vomit and thought she was going to die. The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area. The only member of staff involved in the care of Judith McGlinchey who remains with the Prison Service and who is head of nursing care at the prison has informed the Government that a prisoner would not have been asked to clean up her own vomit and she has no recollection of Judith McGlinchey being asked to do so.
18. On 11 December 1998 she was recorded as keeping down a cup of tea and a glass of juice but was vomiting again during the afternoon and evening. At 6.10 a.m. she was found smoking in bed and when asked what the matter was, she replied “nothing”. The next day, she was found to be “opiate positive”.
19. The doctor examined her on 11 December 1998. She was given a further injection of medication to help with her symptoms. He found her general condition to be stable. In his statement of 4 January 1999 he noted that, following the injection, she was able to keep down oral fluids during the day, although she vomited again in the evening. The Government stated that the doctor checked her for signs of dehydration but did not find any. This was confirmed by Dr K.’s evidence to the coroner. The notes stated that her tongue was moist and clean. In the case of a person who was severely dehydrated, he would have expected the person to be physically very weak and possibly bedridden, to have a fast pulse rate and low blood pressure and, on examination, the eyes would appear sunken, the tongue dry and cracked, the lips drawn and the skin drawn and thin.
20. On 12 December 1998 she continued to vomit and suffered from diarrhoea and abdominal discomfort. Her weight was recorded as 40 kg. She ate nothing. The nursing notes recorded that she had had a better night. There was a reference: “Continues to vomit on occasions? hand down throat.” The medical record stated that she had been observed with fingers down throat and vomit on her hand.
21. On 13 December 1998 according to the nursing entries, there was no vomiting complained of or witnessed apart from twice at the beginning of the night. It was also recorded that she ate a small dinner and slept for long periods that night. There were no entries in the medical record on this day. The doctor stated in his statement of 4 January 1999 that on 12 and 13 December 1998 her temperature, pulse and blood pressure all remained within normal limits. Oral doses of anti-emetic drugs (metoclopromide) were prescribed to follow the injections, and administered on four occasions between 10 and 12 December 1998. In her evidence to the coroner, the head of nursing care stated that the drugs were not given on 13 December as Judith McGlinchey had stopped vomiting.
22. However, at 8.30 a.m. on 14 December 1998, the following was noted in the continuous medical record:
“... went to see inmate in cell, as she got out of bed she collapsed against me vomiting (coffee ground). Laid on floor in recovery position and summoned help. Patient appeared unresponsive and appeared to be having a fit. Ambulance called (999). Regained consciousness, still vomiting, 2 nurses helped her onto bed. Oxygen in situ. ECG taken. Unable to obtain pulse or BP. Unable to gain IV access due to abscesses on arms and previous drug use. Next of kin rung at 0915 hours at Judith’s request, unavailable, son to pass on message within half an hour. Taken to hospital by ambulance. Ambulance arrived at 0845 hours and left at 0853 hours for Pinderfields General Hospital, Wakefield.”
23. Lots of “coffee-ground” vomit (altered blood in the stomach) was recorded as being found on her bed. Pinderfields Hospital medical records showed that she was admitted at 9.18 a.m. Her mother was informed around that time that Judith McGlinchey was in hospital and that she was ill but had stabilised. She was recorded as being
“... drowsy but movable and responsive. Staff nurse informed me that the white cell count was raised, with abnormal kidney and liver function ... possible diagnosis of ... drug abuse”.
24. Her mother later learned from the nursing staff that on admission Judith McGlinchey’s hair was matted with vomit.
25. On 15 December 1998 at 8 a.m., the following entry was recorded:
“Transferred to Ward 7; Ward 7 contacted in the middle of an emergency with her, arrested, but has been resuscitated (sic) and now is having a blood transfusion and an airway [made] ...”
At 10.30 a.m.:
“... Ward 7 contacted to ask if relatives have been informed of deterioration, they are with her now, they are going to reassess her in half an hour and if no improvement turn off the ventilator.”
26. The hospital informed the family that Judith McGlinchey was in a critical condition and might have suffered brain damage due to the cardiac arrest. Her liver and kidneys were failing and they could not stabilise her. She was ventilated by hand as there were no beds in the Intensive Care Unit (ICU). The doctors said that they would stop the medication to see if she came round and breathed on her own and, if not, they would leave her. A Roman Catholic priest was called. The family was advised to say goodbye to Judith McGlinchey and did. She then recovered a little and at 7.15 p.m. she was moved to Bradford Royal Infirmary where there was an ICU bed available. She was stable on the ICU ward although she was kept on life support and was heavily sedated.
27. On 16 December 1998 at 6.45 a.m., Judith McGlinchey’s condition was recorded as stable but critical. At 1 p.m. she was given a very poor prognosis. By 2 p.m. on 18 December 1998, her condition had improved a little. She remained on a ventilator, although sedation had then been stopped. She made jerking movements at times and appeared to be waking up slowly. On the night of 23 December 1998, she opened her eyes and responded to light, although the brain scan did not reveal any activity.
28. On 27 December 1998 Judith McGlinchey was transferred to Pinderfields General Hospital to the High Dependency Unit and from there to Ward 7. It was recorded on 31 December that although her eyes were open, she remained unresponsive and in a critical condition. On 2 January 1999 her mother visited with the children. Her eyes were open but she appeared dark yellow in colour and making jerky movements associated with brain damage.
29. On 3 January 1999 the hospital advised the family to go to the hospital immediately. The prison medical record stated that Judith McGlinchey died at 1.30 p.m.
30. The autopsy report, following the post-mortem examination of 4 January 1999, noted that Judith McGlinchey weighed 41 kg. It stated that although one symptom of heroin withdrawal can be vomiting, the cause of the applicant’s vomiting was never fully established. Episodes of severe vomiting could have caused a tear in the upper gastro-intestinal tract (“a Mallory Weiss tear”) though this would most likely have healed by the time she died. This was the most likely cause of haemorrhaging in the stomach which could result in coffee-ground vomiting. If she had lost a substantial amount of blood, rendering her anaemic, this could have triggered the cardiac arrest. The cardiac arrest precipitated hypoxic brain damage and multi-organ failure with an inevitably fatal outcome.
31. In a letter dated 18 January 1999, the coroner informed the family that an inquest would be held before a jury. At the inquest, which took place on 6 December, evidence was given by Dr K., the prison doctor, Sister N., the head of nursing care at the prison, the forensic pathologist who carried out the post mortem, three consultants from the Pinderfields and Bradford Hospitals who had been involved in treating Judith McGlinchey and the third applicant, Judith McGlinchey’s mother. The latter was represented during the proceedings by a solicitor who put questions to the witnesses on her behalf.
32. During the evidence it emerged that the scales used to weigh Judith McGlinchey in prison were inaccurate and incompatible, those used on reception being two to three pounds out compared with those used subsequently in the health-care centre. Due to this discrepancy, Dr K. explained that he placed greater importance on his clinical impressions of Judith McGlinchey regarding any effect of possible weight loss, but was aware of the potential problem and had given instructions for her weight to be monitored. Notwithstanding that antibiotics had been prescribed for her septic arm, it was also indicated that these had not been given to her over a number of days – out of twenty doses that she should have received over five days, she received sixteen. The head of nursing care, Sister N., was unable to explain the omissions although she suggested that the nurse could have forgotten to sign the medicine card.
33. Both Sister N. and Dr K. gave evidence that Judith McGlinchey did not give a clinical impression of being very ill during this period, stating that she was up and about and associating with others. Dr K. stated that her symptoms had been diminishing and that given her blood pressure, temperature, pulse and her general condition, he had no concern that she was gravely ill or that there was any need to admit her to an outside hospital. It was revealed that Dr K. did not work in the prison on weekends and was not present therefore on 12 and 13 December 1998 before Judith McGlinchey’s collapse. A part-time doctor attended on Saturday mornings and the prison depended on calling a doctor on agency if required. This explained the lack of any record in the notes for 13 December 1998. Sister N. explained that the entry in the nursing notes on 8 December which stated that Judith McGlinchey had been “locked in for education” referred to the routine procedure whereby those prisoners not participating in the education class were detained in their cells during that period.
34. Evidence was also given by the three consultants who treated Judith McGlinchey in hospital, concerning her state on arrival and her subsequent deterioration. They were unable to say with any certainty what had caused her collapse or the bleeding in her stomach. Dr Tobin considered that she was dehydrated on arrival at hospital but, due to her disturbed state, he was unable to put in a central line which would have allowed an accurate analysis to be made. Under questioning, he stated that the signs consistent with dehydration could also have been caused by fresh bleeding but not by one episode of coffee-ground vomiting.
35. In his summing-up to the jury, the coroner summarised the evidence as follows:
“... for the first day Judith was admitted in the Health Care Centre ... she was then seen by the doctor, [Dr K.], on the second day, on 8 December. He examined her and made a note. She was still retained in the Health Care Centre but as the week proceeded, Judith started to become unwell. You have heard evidence of the fact that she was a heroin abuser and it was known that if she was to withdraw from heroin she might develop some unpleasant symptoms ... those symptoms might manifest themselves for example with diarrhoea and vomiting, possible stomach cramps, depleted sleep patterns and the like and in fact the information that Judith gave to her mother when she first rang rather gave you the impression that she knew that possibly she was to have a rough road ahead but she was prepared to put up with that.
Certainly throughout that week ... it is well-documented that Judith was vomiting profusely. Although she was given medication for that on occasions it only worked for a very short time and it is fair to say that from about midweek onwards she was vomiting at some stage every day. There was also reference to the fact that she had diarrhoea and she was generally unwell.
Her nutritional state may well have been not all that it should have been and although drinks were available for her there was no means of monitoring how much liquid she was taking in. It was not possible to monitor whether she was actually drinking and vomiting it back or not drinking at all. There was no attempt at measuring fluid during the course of that week and her vomiting actually progressed and on some occasions it was described as a lot of vomiting. It was referred to in the notes “vomiting +++” which means rather a lot and although she was seen by nursing staff every day and by the doctor on other occasions the medical staff at New Hall Prison were under the impression all along that Judith was showing no signs of being dehydrated. In other words, she was not being depleted of fluids and [Dr K.] explained in his evidence his findings and the fact that he could see no real evidence that she was dehydrated at the time and felt that even with hindsight there was no necessity for her to be admitted into hospital.
Almost a week after her admission to [prison] on a particular morning when she woke up ... she virtually collapsed in the presence of nursing staff and she vomited a large amount of ... coffee ground vomit ...
There was some discussion during the evidence ... as to whether Judith had actually had a cardiac arrest at that time. In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case, although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that. There was no evidence at that particular time that she had experienced a cardiac arrest.
She was taken by ambulance to Pinderfields Hospital ... where she was immediately placed under the care of Dr Tobin ... His working diagnosis at the time was that Judith may well have some degree of liver failure and that there could also be some ... bleeding from the upper gastro-intestinal tract, the oesophagus ... because of the fact that she had vomited the coffee ground vomit.
The evidence of Dr Naomi Carter, the Pathologist ... found some residual material in Judith’s stomach which could well have resembled blood or changed blood but ... was at pains to explain that she could find no source of any bleeding within Judith’s internal organs ... one possible likely cause of the bleed that had produced itself in the coffee ground vomiting was that the retching which she had sustained... might have caused a small tear either in her oesophagus at the point where it reaches the stomach or alternatively in the lining of the stomach itself ... that is a medical condition known as a Mallory Weiss tear but she could not find evidence of that. Her view was that possibly that small tear might well have healed by the time that she saw Judith’s body which was obviously by then some days later. That is the only explanation as to why there was any bleeding ... The significance of that bleed is appropriate because it is highly likely that as a consequence ... Judith will have lost some volume of blood which will have meant that her heart might have had to work harder in order to overcome that and certainly when she was at Pinderfields Hospital she was extremely unwell.
Dr Tobin was of the view that he felt that Judith was in fact dehydrated but he could not prove that specifically because you will recall from Dr Tobin’s evidence that it was not possible for him to insert a central line. Had he been able to do that then it might have been that could have been used as a diagnostic tool ... certainly Dr Tobin was of the opinion that there would seem to be some suggestion that Judith was dehydrated, notwithstanding, according to the medical staff at New Hall, they felt that that was not the case as the week had gone on.
On the morning of 15 December ... unfortunately Judith experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage.
... The post-mortem evidence ... explained the cause of death and Dr Carter was able to confirm that the cause of death was hypoxic brain damage, deprivation of oxygen to the brain, caused by a cardiac arrest which Dr Carter felt was as a consequence of an upper gastro-intestinal haemorrhage of an undetermined cause ...”
36. The coroner invited the jury to return a verdict of death through natural causes or an open verdict. The jury unanimously returned an open verdict.
37. Legal aid was granted to the three applicants to pursue domestic remedies for compensation. Their solicitors sent a notice of issue, under cover of a letter dated 12 February 1999, to the Treasury Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of Judith McGlinchey.
38. In a report dated 13 September 2000, the doctor consulted by the applicants stated, inter alia, as follows:
“It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme, I would, however, be very unhappy about managing anyone who was vomiting repeatedly, without the use of intravenous fluids, the intravenous administration of anti-emetic drugs and the facility to monitor blood chemistry frequently.
... Judith was severely under weight.
Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting, from whatever cause, was likely to cause a serious imbalance of her blood chemistry very quickly. Apart from electrolyte disturbance and dehydration, she would be very likely to have had difficulty maintaining an adequate blood sugar level, as she would have had no reserves in the form of stored carbohydrate substances within the body, that could have been utilised, when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting.
In such circumstances a vicious circle can occur. A low blood sugar level itself can cause more nausea and vomiting. Multiple metabolic pathways can be interfered with. The subject can become irritable. The level of consciousness may be severely reduced and coma can even occur.
Intravenous access is often very difficult in intravenous drug abusers, even for clinicians such as anaesthetists who routinely insert needles. Central lines are likely to be needed. These are special long catheters, often with more than one lumen, that are inserted into major blood vessels close to the heart. I would not expect the average prison medical officer to be proficient in inserting such a line.
It is preferable for these lines to be inserted in hospital, by personnel with the necessary skills. After insertion, the correct positioning ... needs to be checked by Xray before it is used to administer drugs and fluids. Once inserted their maintenance requires skilled, aseptic nursing care ...
I would be inclined to attribute the agitation and apparent lack of cooperation displayed by Judith after her admission ... and before her second collapse to cerebral irritation. Cerebral irritation is often seen following a period of cerebral hypoxia. Certainly, a degree of cerebral hypoxia probably occurred at the time of her collapse [in prison] and continued up to the time that resuscitation was underway at Pinderfields ...
The bleeding that occurred, following a period of persistent and violent vomiting, could certainly have been caused by a Mallory Weiss tear as suggested ... in the autopsy report.
If Judith had been admitted to hospital earlier, it might still have proved difficult to control the vomiting and, in view of her poor general and nutritional state, if the cause of her bleeding was a Mallory Weiss tear, this might still have occurred, but she would not have had such a degree of dehydration and/or biochemical disturbance, and the consequences of such an occurrence would probably have been less serious.
Alternatively, if her vomiting had been brought under control at an earlier stage, the subsequent sad sequence of events might have been prevented.”
39. In his opinion of 30 October 2000, counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between Judith McGlinchey’s death and the allegedly negligent care afforded to her in custody. They did not pursue their claims in negligence.
40. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation, do not entitle a plaintiff to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death.
41. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency. The scheme of the 1976 Act is compensatory and save for the sum of 7,500 pounds sterling for bereavement to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-78783
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BIZIUK AND BIZIUK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Janusz Biziuk and Ms Irena Biziuk, are Polish nationals who were born in 1931 and 1934, respectively, and live in Sokółka.
On 26 May 2000 the first applicant lodged with the Sokółka District Court a claim for compensation for allegedly unjustified detention during criminal proceedings against him. His case was registered by the court’s registry on 25 January 2001 and later transferred to the Białystok Regional Court. A hearing was subsequently listed for 28 November 2001. On an unspecified date the applicant was granted legal aid.
On 19 November 2001 the second applicant submitted a claim for compensation for her allegedly unfair criminal conviction and requested that her case be examined jointly with the first applicant’s claim. At a hearing held on 26 November 2001 the court decided that her claim should be examined separately.
On 28 November 2001 the Białystok Regional Court dismissed the first applicant’s claim. It found that he had been detained for forty three days in a psychiatric hospital, because he had previously repeatedly failed to comply with summonses to undergo a psychiatric examination ordered to establish whether he could be held criminally liable. He had also absconded for some periods of time. The court had regard to the fact that the applicant had been duly informed about the dates of the planned psychiatric examination. It further observed that the applicant had once been arrested and brought to the hospital for the same purpose, but had left without permission after several days. Hence, given the applicant’s manifest unwillingness to co-operate in establishing the circumstances relevant to the assessment of his criminal liability, the decision to remand him in custody had been fully justified.
The first applicant’s legal-aid lawyer appealed, arguing that the court had wrongly assessed the evidence and wrongly applied the applicable legal provisions.
In addition, the applicant lodged his own appeal with the appellate court. In this appeal he raised in essence the same complaints. He further submitted that his defence rights had been breached in the criminal proceedings. He also complained that his legal-aid lawyer had only been informed about the hearing held on 26 November 2001 on the same day, which negatively affected the fairness of the proceedings.
On 29 August 2002 the Bialystok Court of Appeal dismissed the appeal brought by the applicant’s lawyer, fully sharing the conclusions of the first-instance court. The court did not examine separately the appeal lodged by the applicant himself.
In proceedings concerning claims for compensation for unjustified detention or conviction, the Code of Criminal Procedure applies.
According to Article 444 of the Code of Criminal Procedure, a party can lodge an appeal against a decision of a first-instance court with the appellate court. Pursuant to Article 446 § 1 of the Code, legal representation is mandatory where a first-instance judgment has been given by a regional court.
In a decision of 23 February 2005, the Kraków Court of Appeal held that where legal representation in criminal proceedings was mandatory, arguments contained in an appeal drawn up by a represented person him – or herself could be regarded by the court as additional arguments supporting the reasoning underlying the remedy filed by a lawyer (Kraków Court of Appeal, II Aka 52/05, KZS 2005/2/41).
Article 79 § 1 of the 1997 Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Pursuant to Article 46 § 1 of the Constitutional Court’s Act, a constitutional complaint has to be lodged within two months from the date on which the individual decision was served on the complainant.


ITEMID: 001-78279
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BORAK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1978 and was serving his prison sentence in the Sakarya Prison at the time of his application to the Court.
5. On 17 July 1997 the applicant was arrested and taken into police custody by the Anti-terror branch of the Izmir Security Directorate on suspicion of his involvement in an illegal organisation, namely the DHP (Revolutionary Peoples’ Party).
6. According to the search protocol drafted on 18 July 1997 by police officers and signed by the applicant’s father, the police, after obtaining his consent, searched the applicant’s parents’ flat and did not find any incriminating evidence.
7. According to the search and seizure protocol drafted on the same day by the police officers and signed by the applicant, the police searched the applicant’s flat and had found inside a book a paper with coded inscriptions and numbers on it. Following the search the applicant was taken back to the police station. However, three police officers remained in the applicant’s flat, until 6.30 p.m., in case other members of the illegal organisation appeared.
8. On 18 July 1997 the applicant’s representative requested the public prosecutor at the Izmir State Security Court to give her permission to see the applicant in police custody. On the same day the public prosecutor refused.
9. Also the same day, the applicant was examined by a doctor at the Izmir Forensic Medicine Institute. The applicant complained that he had been beaten. However, the doctor found no physical evidence of illtreatment.
10. On 21 July 1997 the applicant was brought before the public prosecutor at the Izmir State Security Court. Before the public prosecutor the applicant gave information as to his relations with various people but denied that he had been involved in an illegal organisation and that he had taken part in military training in Greece. He claimed that he did not know anything about the code found during the search. He acknowledged that he knew Mr A.T and Mr U.M who had identified him in the police station. He submitted further that he knew Mr A.E.K., Mr M.K, and Mr G.C. because they were in the same prison as his sister. He admitted that Mr A.T and Mr U.M knew him as Kemal Borak but stated that this was not a code name.
11. On the same day the applicant was brought, together with two other suspects, before the Izmir State Security Court. He refuted the statements he had given to the police and reiterated his statements made to the public prosecutor. The other suspects claimed that they knew the applicant as “Kemal” and acknowledged their statements given to the police and to the public prosecutor. The court ordered the applicant’s remand in custody.
12. On 25 July 1997 the public prosecutor at the Izmir State Security Court filed a bill of indictment with that court, accusing the applicant of membership of an illegal organisation, namely the DHP. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 and Article 5 of Law no. 3713.
13. On an unspecified date the Izmir State Security Court commenced the trial against the applicant and two other co-accused.
14. At a hearing held on 7 October 1997 the applicant stated that he was not a member of the DHP and that he did not accept the content of the statements he had given to the police since they had been extracted under duress and torture. The statements which the applicant had made to the public prosecutor were read out to him. He rectified certain details. He further submitted that he had asked his brother for money but since he did not have an identity document and a bank account, his brother had sent the money to the bank account of Mr R.A. He was asked about Ms S.D, who had sent the money to R.A. He stated that he did not know Ms S.D. personally but that she was a friend of his brother. He maintained that he did not have a code name and that people knew him as “Kemal” because that was his middle name. As to the coded inscriptions, he claimed that the police made him write them in the police station. The search and seizure protocol was read out to him. He denied that the coded inscriptions had been found in his house.
15. At a hearing held on 6 November 1997 the applicant requested that witnesses on his behalf be heard by the court. The court, taking into account the evidence contained in the case file and the fact that the witness Ms S.D. was living in Germany, decided not to hear the latter witness. On the other hand, the court decided to hear the other witnesses. On 27 November 1997 the court heard the applicant’s witnesses.
16. On 23 December 1997 the applicant submitted his final written defence submissions to the court. He claimed that there was no evidence in the case file to support the accusations against him apart from his statements given under duress in police custody. In particular, he alleged that the police had made him write the coded inscriptions while he was in custody.
17. On 23 December 1997 the Izmir State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment. The court held, inter alia, that as the applicant’s statements in police custody were consistent with the statements made by Mr I.A., Mr R.K, Mr A.T and Mr U.M., it did not find the applicant’s statements made during the trial convincing. As to the defence witnesses’ statements, the court ruled that, as the witnesses were the applicant’s relatives, their submissions could not be considered reliable. The court further held that since the profile of the applicant did not match that given by two convicted persons who had given evidence it did not take into account the latter’s statements in its assessment.
18. On 23 September 1998 the applicant appealed against the judgment of the Izmir State Security Court. In his appeal petition, the applicant reiterated his previous submissions. He further argued that the court had relied on unlawfully obtained evidence and that there was no evidence to support the allegation that he was a member of an illegal organisation. The applicant also attached the written witness statement of Ms S.D to his petition. According to the written statement of Ms S.D., she was a friend of the applicant’s brother and since he had been busy she had made all the necessary transactions and sent the money to the bank account given to her.
19. On 28 September 1998 the Court of Cassation held a hearing and upheld the judgment of the İzmir State Security Court. The court pronounced its decision on 30 September 1998 in the absence of the applicant and his representative. The applicant’s representative claims that she learned of the decision of the Court of Cassation on 12 October 1998 when she went to that court on other business.
20. On 26 October 1998 the decision of the Court of Cassation was deposited with the registry of the first-instance court.
21. The applicant’s representative informed the Court that the applicant had been released from prison after having served his sentence.
22. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Gençel v. Turkey (no. 53431/99, §§ 11-12, 23 October 2003).
23. By Law no. 5190 of 16 June 2004, published in the Official Journal on 30 June 2004, the State Security Courts were abolished.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104981
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF NAKA v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Anatoly Kovler;George Nicolaou;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1938 and lives in Athens.
5. She is employed as a cleaning lady at the General Hospital of Athens “Laiko”.
6. On 17 June 1996 she lodged a civil action with the Athens First Instance Civil Court asking for a sum of 29,151,114 drachmas (GRD) (i.e. 85,739 euros) in respect of unpaid salaries.
7. On 2 October 1997 her action was accepted. This decision was certified (θεώρηση) on 8 July 1998 (judgment no. 2927/1997).
8. On 29 March 1999 the hospital lodged an appeal.
9. On 21 September 1999 the Athens Civil Court of Appeal accepted the appeal and rejected the applicant’s action as unfounded (judgment no. 7938/1999).
10. On 31 October 2000 the applicant lodged an appeal on points of law with the Court of Cassation.
11. On 4 December 2001 the Court of Cassation accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1684/2001).
12. On 20 December 2001 the applicant filed an application before the Court of Appeal asking for a hearing date to be set. The hearing was held on 5 March 2002.
13. By judgment dated 28 November 2002 the Court of Appeal quashed judgment no. 2927/1997 of the Athens First Instance Civil Court and partially allowed the applicant’s appeal (judgment no. 9275/2002).
14. On 13 July 2004 the applicant lodged an appeal on points of law.
15. On 24 June 2008 the Court of Cassation partially accepted the appeal and remitted the case to a different division of the Court of Appeal (judgment no. 1394/2008). This judgment was finalised on 5 November 2008. It does not transpire from the case file that these proceedings have been concluded.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4636
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: T.T. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Turkish citizen, born in 1945 in Istanbul. At the time of the facts, the applicant was an officer with the rank of captain.
The facts of the present case, as submitted by the applicant, may be summarised as follows.
In late 1979 investigations were initiated against a number of persons including the applicant, who was the District Gendarmerie Commander of Çorlu, concerning various smuggling incidents in this region.
In an indictment dated 22 December 1980, the Kırklareli Public Prosecutor's Office charged only the applicant, under Article 240 of the Turkish Criminal Code, with abuse of office by assisting and protecting smugglers.
On 23 February 1982 the Tekirdağ Assize Court convicted the applicant for abuse of office and sentenced him to one year and eight months' imprisonment and to a heavy fine.
The applicant appealed. On 30 June 1982 the Court of Cassation quashed the judgement delivered by the Tekirdağ Assize Court, indicating that the classification of the offence was incorrect and that the investigation was incomplete. According to the Court of Cassation, the applicant ought to have been tried for collective smuggling.
The Tekirdağ Assize Court joined the applicant’s case with another case of collective smuggling initiated against 13 co-accused. The Court, inter alia, took oral evidence from various witnesses, consulted experts and examined extracts from customs registries and customs service reports.
On 12 December 1990 the Tekirdağ Assize Court convicted the applicant and the other co-accused for collective smuggling and sentenced the applicant to one year and eight months' imprisonment. The Court found that the applicant and the other accused had arranged the entry into Turkey of a truck loaded with smuggled goods.
On 15 April 1992 the Court of Cassation upheld the decision of the Tekirdağ Assize Court. It noted that the Assize Court had examined the charges as well as the defence, evaluated all the evidence submitted to it and delivered an impartial judgment.
On 23 September 1992 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s judgment dated 15 April 1992.
On 5 November 1992 the Tekirdağ Assize Court admitted the applicant's request for the reopening of the trial. Accordingly, the court initiated new proceedings. On 16 September 1993 the Tekirdağ Assize Court convicted the applicant confirming its former decision dated 12 December 1990. The Assize Court considered that the new elements submitted by the applicant could not have any effect on the reasoning of the judgment of 12 December 1990. The applicant appealed. On 5 October 1994 the Court of Cassation upheld the decision of the Tekirdağ Assize Court dated 16 September 1993.
On 7 December 1994 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s decision.
On 15 February 1995 the Tekirdağ Assize Court rejected the applicant's second petition for the reopening of his trial.


ITEMID: 001-82973
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LEBEDEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 5-1;Violation of Art. 5-3;Violations of Art. 5-4;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1956 and is currently serving a prison sentence in the penitentiary institution FGU IK-3, situated in the Kharp township of the Yamalo-Nenetskiy Region.
7. At the time of the events described below the applicant was one of the leading executives of Yukos, a large oil company. On 20 June 2003 a public prosecutor opened an investigation on suspicion of fraud committed in the course of the privatisation of a State-owned company in 1994 by a group of top managers of Yukos and affiliated companies. In the following months some of them were arrested and charged, including Mr Khodorkovskiy, the former head of Yukos; others, in fear of prosecution, left Russia.
8. On 2 July 2003 the applicant was admitted to a hospital in connection with his chronic diseases. On the same day, while in the hospital, the applicant was arrested by the prosecuting authorities as a suspect in the above criminal case. He was taken from there to a pre-trial detention centre.
9. On 3 July 2003 the prosecution charged the applicant and two other persons with fraud and non-compliance with a court order. The prosecution asserted that in 1994 the applicant had deceived the State: he had bought a stake in a large mining company at a privatisation tender, but had not made a return investment in the company even though that was an obligation for the winning bidder. Furthermore, the applicant had later disobeyed a judgment ordering him to return the stake in the company to the State.
10. The applicant’s lawyers objected to the arrest and maintained that the applicant’s detention was incompatible with his state of health. On the same day, 3 July 2003, the prosecution requested the Basmanniy District Court of Moscow to remand the applicant in custody.
11. The detention hearing was supposed to start on 3 July 2003 at 4.30 p.m. The applicant asked the court to adjourn the hearing in order to allow his lawyers to participate in it. The court dismissed this request on the ground that the lawyers had been properly informed about the detention hearing two hours before but had failed to appear. The court decided to hear the detention request in private.
12. According to the applicant’s lawyers, they learned about the time of the detention hearing one hour and forty minutes before it began. When they arrived at the courthouse they could not participate in the hearing because the judge had locked the room and refused to open it.
13. Having heard the applicant and the prosecution, the court decided to detain the applicant. The court decision did not specify the period of detention. With regard to the absence of the lawyers from the hearing, the court noted as follows:
“The court finds unfounded and cannot accept [the applicant’s] motion to adjourn [the decision] until [his lawyers] may take part in the proceedings. The documents submitted by the investigating authorities prove that [the lawyers] were informed about the time and place of the hearing in advance, namely at 2.52 p.m. on 3 July 2003 [they] were informed that at 4.30 p.m. on 3 July 2003 [the Basmanniy District Court] would examine [the investigating officer’s request for a detention order]. In reality, the hearing ... began at 5.50 p.m. on 3 July 2003, but [the lawyers] have still not arrived, nor have they presented valid reasons for their absence...”
14. The defence appealed against the detention order, but on 23 July 2003 the Moscow City Court upheld it. The applicant’s lawyers were present at the appeal court hearing; the applicant was absent. In the hearing the prosecution submitted additional evidence in favour of the applicant’s detention. The appeal court gave the following reasons for its decision:
“[The prosecution has submitted] evidence that [the applicant] has three travel passports, that most of [his] money has been [converted into] foreign currency and is deposited in foreign ... bank accounts, that he has real estate abroad, and that his main business is located outside Russia. In the hearing [the applicant’s] lawyers did not contest this evidence. [This evidence], together with the fact that [the applicant] heads several commercial banks and maintains international links, supports the [first-instance] court’s conclusion that [the applicant], if he remains at large, may abscond from the investigation and trial, influence ... witnesses, destroy evidence, and otherwise obstruct the proceedings....”
Furthermore, the court of appeal found that the applicant’s lawyers had been properly informed about the time of the hearing in the District Court but failed to appear in time. The court noted that the applicant’s lawyers had been notified about the hearing in the General Prosecutor’s office situated a short distance away from the building of the Basmanniy District Court. The defence lawyers had had three hours to get there, but had failed to appear in time. Consequently, the judge had had every reason not to let them in “because when they arrived at the court the hearing had already started and it was closed to those who were not participating in it”.
15. On 20 August 2003 the investigation ended. On 22 August 2003 the applicant and his lawyers began to study the prosecution files.
16. The prosecution requested the Basmanniy District Court to extend the applicant’s detention three times to let him study the prosecution files. On 28 August 2003 the court extended the detention until 30 October 2003. The defence lodged an appeal against this decision which was dismissed on 15 October 2003 by the Moscow City Court.
17. On 28 October 2003 the court extended the detention until 30 December 2003. An appeal by the defence against this detention order was dismissed on 23 December 2003 by the Moscow City Court.
18. On 26 December 2003 the court extended the detention until 30 March 2004. The court repeated the reasons for detention, formulated in the detention order of 3 July 2003. The hearing of 26 December 2003 was held in private.
19. On 30 December 2003 the applicant’s lawyer, and on 9 January 2004 the applicant himself, lodged summary appeals against the decision of 26 December 2003. According to the Government the record of the hearing of 26 December 2003 was signed on 5 January 2004. However, it was not until 14 January 2004 that the applicant’s lawyers obtained it from the registry. The applicant asserted that the record was deposited with the registry of the Basmanniy District Court only three weeks after the hearing. According to the Government, on 22 January 2004 the court received comments on the record of the hearing from the applicant’s lawyer; on the same day it dismissed those comments, confirming the accuracy of the hearing record. On 23 January 2004 the applicant’s lawyer, and on 5 February 2004 the applicant himself, lodged reasoned appeals against the decision of 26 December 2003. The reasoned appeals reached the court on 6 February 2004. On 9 February 2004 the Moscow City Court upheld the decision of 26 December 2003.
20. After the applicant had finished studying the prosecution files, on 26 March 2004 the prosecution submitted the case to the Meschanskiy District Court of Moscow for trial.
21. On 6 April 2004 the Meschanskiy District Court set a preliminary hearing for 15 April 2004 and decided that meanwhile the applicant should stay in detention. No reasons were given for that decision. It appears that the applicant was absent from this hearing; however, his lawyer was present.
22. On 12 April 2004 the applicant’s lawyer lodged, by post, an appeal against this decision arguing that the court had failed to hear the applicant and to cite any reasons for the detention.
23. On 15 April 2004 the applicant’s lawyer asked the court to release the applicant because no court decision had authorised his detention from 30 March 2004, when the detention had expired, to 6 April 2004, when the court had accepted the case for trial. On the same day, 15 April 2004, the court rejected this request because the prosecution had submitted the case for trial in time, and because from that moment the court had jurisdiction over the applicant (перечисление за судом). The court also decided that the applicant should remain in detention during the trial. In support of that decision the court relied on the reasons stated in the detention orders of 2003. Both the applicant and his lawyers were present at the hearing of 15 April 2004.
24. On 22 April 2004 the Moscow City Court received the applicant’s lawyer’s appeal against the decision of 6 April 2004, sent by post (see paragraph 22 above). On 26 April 2004 the court sent it to the prosecution for comment. On 14 May 2004 the court received the memoranda from the prosecution and the civil plaintiffs. On 20 May 2004 the memoranda were received by the defence. On an unspecified date the court set a hearing for 27 May 2004. On 26 May 2004 the applicant’s lawyer lodged an additional appeal. The court sent the additional appeal to the prosecution for comment. Having received the comments, the court set a hearing for 9 June 2004.
25. On 8 June 2004 the Meschanskiy District Court conducted a preliminary hearing into the criminal case of Mr Khodorkovskiy and Mr Kraynov, the applicant’s co-defendants. In the course of that hearing the court decided to join the applicant’s case to his co-defendants’ cases, assigned the case for trial and confirmed that the applicant should remain in detention. The court also decided that the trial would be public. The applicant and his lawyers were absent from that hearing, whereas the prosecution was there.
26. On 9 June 2004 the Moscow City Court rejected the appeals against the Meschanskiy District Court’s decisions of 6 and 15 April 2004. The City Court confirmed the lawfulness of the applicant’s detention between 30 March and 6 April 2004; it also decided that the decisions of 6 and 15 April 2004 had been lawful.
27. On 29 July 2004 the Moscow City Court rejected the appeal against the decision of 8 June 2004. The applicant’s lawyers participated in the appeal hearing, but the applicant was not there. The City Court held that the Meschanskiy District Court’s decision extending the detention had been in conformity with the provisions of the Code of Criminal Procedure and had been based on the material in the case file. Further, the City Court obtained a medical certificate concerning Mr Lebedev from the prison doctor, who described the applicant’s state of health as “satisfactory”. The court of appeal concluded that the applicant should remain in detention during the trial.
28. At the hearing on 10 September 2004 the prosecutor asked the court to extend the applicant’s detention on remand until 26 December 2004, since the previous detention order would expire on 26 September 2004. The defence objected but the court granted the motion and extended the applicant’s detention on remand as requested. The reasons given by the District Court in its decision of 10 September repeated the reasons stated in the decision of 15 April 2004 (see paragraph 23 above). On several occasions in the following months the applicant’s detention was prolonged by the Meschanskiy District Court.
29. On 16 May 2005 the Meschanskiy District Court convicted the applicant and sentenced him to nine years’ imprisonment.
30. On 4 December 2003 and 22 March 2004 Mr Baru, the applicant’s lawyer, visited the applicant in prison. During the visit the applicant gave him notes concerning the trial. As Mr Baru was leaving, guards stopped him and confiscated the notes. Later the prosecution returned the notes.
31. On 22 March 2004 Ms Liptser, the applicant’s other lawyer, was appointed to represent the applicant before the Court. On 23 March 2004 she tried to visit the applicant in prison. However, the prison administration refused the visit because Ms Liptser had no authority to represent the applicant before the domestic courts. In the following days Ms Liptser was denied access to her client; however, according to the register kept by the detention facility and produced by the Government, the applicant had meetings with his other lawyers. In particular, Mr Baru visited him on 30 March, 1 and 2 April 2004, and 5 to 9 April 2004. On 12 April 2004 Ms Liptser received the appropriate authority and was allowed to visit the applicant. Later she complained about those facts to the Preobrazhenskiy District Court, but on 26 April 2004 the court ruled that it did not have jurisdiction to examine this complaint. In aggregate, within the period under consideration, the applicant had about 20 meetings with Ms Liptser.
32. Article 22 part 2 of the Constitution of the Russian Federation provides that detention should be authorised by a court order. Detention without a court order is permitted only for up to 48 hours.
33. The Code of Criminal Procedure of 2001 provides:
“1. Pre-trial detention as a measure of restraint shall be applied by a court only where it is impossible to apply a different, less severe, precautionary measure...
...
3. When the need arises to apply detention as a measure of restraint ... the investigating officer should request the court accordingly...
4. [The request] should be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and the defender, if one takes part in the proceedings. [The request should be examined] at the place of the preliminary investigation, or of the detention, within 8 hours of the receipt of the [request] to the court.... The non-justified absence of the parties, who were notified about the time of the hearing in good time, should not prevent [the court] from considering the request [for detention], except for the cases of absence of the accused person.
...
7. Having examined the request [for detention], the judge should take one of the following decisions:
1) to apply pre-trial detention as a measure of restraint in respect of the accused;
2) to dismiss the request [for detention];
3) to adjourn the examination of the request for up to 72 hours so that the requesting party can produce additional evidence in support of the request.”
“1. A period of detention during the investigation of criminal offences may not last longer than two months.
2. If it is impossible to complete the preliminary investigation within two months and if there are no grounds for modification or cancellation of the preventive measure this time-limit may be extended by up to six months by a judge of a district or garrison court of the relevant level according to the procedure provided in Article 108 of the present Code. A further extension of this term up to 12 months may be effected in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case, and provided there are grounds for application of this preventive measure, by a judge of the same court upon application of the investigator, filed with the consent of a prosecutor of a subject of the Russian Federation or a military prosecutor of equal status.
3. A term of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge] on application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy.
4. Further extension of the time-limit shall not be allowed. ...”
“1. A preventive measure must be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the grounds for application of a preventive measure ... change.
2. The cancellation or modification of a preventive measure should be effected by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision.
3. A preventive measure applied at the pre-trial stage by the prosecutor or by the investigator or the inquirer upon his written instructions may be cancelled or changed only with the prosecutor’s approval.”
“Actions (omissions) and decisions of the agency conducting the inquiry, the inquirer, the investigator, the prosecutor and the court may be appealed against according to the procedure provided in the present Code by the participants in the criminal proceedings and by other persons to the extent that the procedural actions carried out and procedural decisions taken affect their interests.”
“1. When a criminal case is submitted [to the court], the judge must decide as follows: either
(i) to forward the case to an [appropriate] jurisdiction; or,
(ii) to hold a preliminary hearing; or,
(iii) to hold a hearing.
2. The judge’s decision shall take the form of a resolution...
3. The decision shall be taken within 30 days of the submission of the case to the court. If the accused is detained, the judge must take the decision within 14 days of the submission of the case to the court...”
“Where a criminal case is submitted for trial, the judge must ascertain the following points in respect of each accused:
(i) whether the court has jurisdiction to deal with the case;
(ii) whether copies of the indictment have been served;
(iii) whether the measure of restraint should be lifted or changed;
(iv) whether the motions filed should be granted ...”
“1. When there are no grounds to take one of the decisions described in subparagraphs (i) or (ii) of the first paragraph of Article 227, the judge should assign the case for trial ... In the resolution ... the judge should decide on the following matters:
...
(vi) on the measure of restraint, except for the cases when detention on remand or house arrest are chosen...”
“1. During the trial the court may order, change, or lift a precautionary measure in respect of the accused.
2. If the defendant has been detained before the trial, his detention may not exceed six months from the moment the court receives the case for trial to the time when the court delivers the sentence, with exceptions provided by § 3 of this Article.
3. The court [...] may extend the accused’s detention on remand. It is possible to extend detention only in respect of a defendant charged with serious crimes or especially serious crimes, and each time for a period of up to 3 months...”
Article 259. The hearing record
“1. During the hearing a record must be kept. ...
6. The hearing record must be made and signed by the presiding judge and the secretary of the court within 3 days after the hearing. ...”
Article 376. Setting the case down for the appeal hearing
“1. Having received the criminal case with the points of appeal ..., the judge must fix the date, time and venue of the [appeal] hearing.
2. The parties must be notified about the date, time and venue [of the appeal hearing] no later than fourteen days before it. The court shall decide whether the convicted detainee should be summoned to the hearing.
3. A convicted detainee who has expressed a wish to be present [at the appeal hearing] shall have the right to be present personally or to submit his arguments by video link. The court shall decide in what form the participation of the convicted person in the hearing is to be secured. ...”
34. On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-P on the complaint lodged by a group of individuals, including the applicant. They complained about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts. The Court found that the provisions of the Code challenged by the applicant and other claimants complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts might have contradicted their constitutional meaning. In part 3.2. of the Ruling the Constitutional Court held:
“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released...
These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the measure of restraint applied at previous stages.
Therefore, when the case is transmitted by the prosecution to the trial court, the measure of restraint applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [imposing it]...
[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the measure of restraint applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term for which the measure of restraint has been set.
The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Proceedings, [must] ask the court to extend the period of detention.”
“Since deprivation of liberty ... is permissible only pursuant to a court decision, taken at a hearing ... under the condition that a detainee has been provided an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing should apply to all court decisions, whether they concern the initial imposition of this measure of restraint, or its confirmation.”
“Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...”
36. Article 72 §§ 3 and 4 of the Criminal Code of 1996 provide that the time spent by the accused person in pre-trial detention and detention pending trial is included in the duration of the deprivation of liberty pursuant to the conviction.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 34