ITEMID: 001-109791
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF RANGELOV v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
TEXT: 6. The applicant was born in 1961. When lodging his application, he was detained in Straubing Prison (Germany). He is currently detained in Grad Vraca (Bulgaria).
7. The applicant entered Germany in 1979. He has been convicted some fifteen times since 1980, notably of theft and burglary. In particular, on 1 March 1984 the Kempten District Court convicted him of three counts of joint theft as a member of a gang and sentenced him to three years’ imprisonment. On 7 October 1988 the Munich I Regional Court convicted the applicant of six counts of burglary and one count of attempted burglary and sentenced him to five years’ imprisonment. On 1 October 1993 the Munich District Court convicted the applicant of joint attempted burglary, committed approximately one month after his release from prison, and sentenced him to one year and six months’ imprisonment.
8. On 21 December 1994 the applicant was arrested and remanded in detention.
9. On 26 January 1996 the Munich I Regional Court convicted the applicant of eight counts of burglary and attempted burglary, committed only a few months after his release from prison, and sentenced him to eight years and six months’ imprisonment. It found that by breaking into different shops, the applicant had stolen goods worth some 140,000 Deutschmarks (approximately 71,581 euros). It further ordered the applicant’s preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 40-41 below). Having regard to an expert report, the court found that the applicant had a propensity to commit offences by which serious economic damage was caused and was therefore dangerous to the public.
10. By a decision of 16 April 1997, supplemented on 29 October 1997, the city of Munich ordered the applicant’s expulsion to Bulgaria and prohibited him to re-enter Germany for an indefinite duration in view of his criminal convictions. It authorised the applicant’s expulsion directly from prison as soon as he had served his sentence. The expulsion order became final on 30 December 1997, the regional government of Upper Bavaria having dismissed the applicant’s appeal on 25 November 1997.
11. In the plan governing the execution of the applicant’s sentence, drawn up by the Straubing Prison authorities and presented to the applicant on 9 October 1997, it is noted that the applicant’s transfer to a social therapeutic institution, relaxations in the conditions of his detention and preparations for his release were not envisaged as the city of Munich had issued a deportation order against him.
12. On 7 January 2002 the Erlangen Prison authorities informed the applicant, who was at that time detained in Straubing Prison, that it was not possible to transfer him to Erlangen in order to enable him to participate in a social therapy because he was liable to be expelled after having served his prison sentence.
13. The applicant served his full prison sentence until 19 June 2003. Since then, he was remanded in preventive detention.
14. On 21 August 2003 the Regensburg Regional Court, in review proceedings pursuant to Article 67c § 1 of the Criminal Code (see paragraph 42 below), decided that the execution of the applicant’s preventive detention was still necessary in view of its objective.
15. On 1 December 2003 the Nuremberg Court of Appeal, allowing the applicant’s appeal, quashed the decision of 21 August 2003 and remitted the case to the Regional Court. It found that the Regional Court had not been entitled to authorise one of its judges to hear the applicant alone instead of hearing him in its full composition without giving reasons for doing so. Moreover, the refusal of the Straubing Prison authorities to allow the applicant’s defence counsel to inspect his personal files had violated the right to a fair trial.
16. The applicant’s counsel was subsequently granted access to the applicant’s personal files at Straubing Prison.
17. On 26 February 2004 the Regensburg Regional Court, having heard the applicant on 15 January 2004 and the applicant and the two experts W. and T. on 19 February 2004, again decided that the execution of the applicant’s preventive detention was necessary in view of its objective (Article 67c § 1 of the Criminal Code). It therefore refused to suspend the execution of the applicant’s preventive detention and to grant probation.
18. Having regard to the report submitted by the expert for forensic psychiatry W., the Regional Court found that it was very likely that the applicant would reoffend if released. He had been convicted of burglary on numerous occasions and had reoffended shortly after having served long prison sentences. As confirmed by a report submitted by the Straubing Prison authorities dated 17 January 2003 and by the applicant’s statements at the hearing, the applicant continuously refused critically to reflect on his offences and felt persecuted and wrongfully convicted by the German courts.
19. The Regional Court considered that there were also no other elements indicating that the applicant was no longer inclined to reoffend. It noted that according to expert W., it was advisable for the applicant to participate in a social therapy. It conceded that the applicant had not been admitted to a social therapy in Erlangen Prison he had applied for in 2002. The conditions of his detention had also not been relaxed (Vollzugslockerungen). Both of these measures were important conditions for arriving at a prognosis that he was no longer dangerous to the public. However, this did not alter the fact that the applicant kept posing a risk to the public.
20. According to the Regional Court, the applicant’s preventive detention was also not disproportionate. As the applicant was not a German national it was unlikely that the prison authorities, having regard to the usual practice, would relax his conditions of detention. He had further been refused a social therapy in view of his imminent expulsion. The court considered that it was illegal to retain a convicted person in preventive detention for an indefinite period of time only as a consequence of his foreign nationality and the resulting refusal of relaxed conditions of imprisonment. The Public Prosecutor’s Office would have to consider this issue when deciding on a fresh motion lodged by the applicant to suspend his preventive detention pursuant to Article 456a of the Code of Criminal Procedure (see paragraph 45 below). Otherwise, a suspension of the preventive detention order against the applicant on probation could have to be ordered in the future for reasons of proportionality even without the conditions of his detention having previously been relaxed.
21. On 23 April 2004 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 26 February 2004.
22. Endorsing the reasons given by the Regional Court, the Court of Appeal found that the applicant was still dangerous to the public. He had also proved obstinate in prison and had to be punished three times in 2003 for having insulted the prison staff. Due to the fact that the applicant, as confirmed by expert W., refused to take responsibility for his past offences, there were no suitable measures to prepare the applicant adequately for his release. As the applicant was in preventive detention only since 20 June 2003, the execution of this measure was still proportionate.
23. On 27 May 2004 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He notably argued that his right to freedom as guaranteed by Article 2 § 2 of the Basic Law was violated because his preventive detention was disproportionate. Moreover, he claimed that the refusal to admit him to a social therapy due to his imminent expulsion discriminated him because of his Bulgarian nationality and therefore disregarded his right to equality under Article 3 of the Basic Law.
24. On 28 September 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint and to grant him legal aid (no. 2 BvR 1079/04). It found that his complaint had no prospects of success. There was nothing to indicate that the criminal courts, in reaching their decision under Article 67c § 1 of the Criminal Code, notably in finding that the applicant was still dangerous, had failed duly to consider human dignity and the right to freedom as guaranteed by the Basic Law.
25. The Federal Constitutional Court confirmed that measures relaxing the conditions of detention were a decisive factor for the prognosis of a convicted person’s dangerousness. However, the applicant neither claimed to have applied for such measures in the course of his preventive detention nor to have been unlawfully refused such measures. The decisions of the criminal courts were also not based on the fact that until then, no such measures had been granted. As regards therapeutic measures, the criminal courts had rightly pointed out that due to the applicant’s persistent refusal to accept responsibility for his offences there were no suitable measures to prepare him adequately for his release.
26. On 25 November 2004 the Straubing District Court dismissed the applicant’s request for measures relaxing the conditions of his preventive detention, notably leave under escort for one day under the supervision of two prison officers. It argued that he might abscond on that occasion. The applicant’s appeal on points of law against this decision to the Nuremberg Court of Appeal was to no avail. On 14 March 2006 the Straubing Prison authorities dismissed another request made by the applicant to relax his conditions of preventive detention on the same grounds.
27. On 17 December 2004 the Erlangen Prison again declared not to consent to a transfer of the applicant from Straubing Prison to it in order to admit the applicant to a social therapy. It argued that it was not in a position to prepare the applicant, who was liable to be expelled, for a life without offences in Bulgaria. The living conditions in that country were not known to the therapists. On 31 January 2005 the Nuremberg-Fürth Regional Court dismissed as inadmissible the applicant’s request to declare that refusal unlawful. It found that it were the Straubing Prison authorities which were competent to decide on the applicant’s transfer to a different prison.
28. On 21 December 2006 the Regensburg Regional Court, reviewing the necessity of the applicant’s preventive detention under Articles 67d § 2 and 67e of the Criminal Code (see paragraphs 43-44 below), refused to suspend the execution of the applicant’s preventive detention order on probation. Having regard to the report of psychiatric expert A. it had consulted, it found that there was still a risk that the applicant would commit further serious offences against the property of others (but no violent offences) if released.
29. The Regional Court considered that the applicant’s continued preventive detention was still proportionate. It conceded that it was problematic that no measures at all were planned by the prison authorities to further the applicant’s reintegration into society. Moreover, owing to, in particular, his foreign nationality, the applicant could not expect any relaxations in the conditions of his detention. In practice, the latter were a precondition for coming to an assessment that a detainee was no longer dangerous to the public. Therefore, the court would have to decide at the next periodic review of the applicant’s preventive detention whether the applicant was to be released for reasons of proportionality, despite the fact that he had not previously been granted relaxations in the conditions of his detention and had not been considered as no longer posing a threat to the public.
30. On 12 March 2007 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal. It noted, in particular, that expert A. had considered that there was no starting point for beginning with measures preparing the applicant’s conditional release. As he contested having committed the property offences he had been found guilt of, he could not critically reflect on his criminal behaviour. Therefore, relaxations in the conditions of the applicant’s detention, which were very important to arrive at a prognosis that a person was no longer dangerous to the public, had not been refused without good cause.
31. On 16 February 2005 the Munich I Public Prosecutor’s Office dismissed the applicant’s request to suspend the execution of his preventive detention in view of his imminent expulsion under Article 456a of the Code of Criminal Procedure. On 25 April 2005 the General Public Prosecutor dismissed the applicant’s appeal.
32. On 12 July 2005 the Munich Court of Appeal dismissed the applicant’s request for judicial review. Endorsing the reasons given by the prosecution authorities, it found that there was still a risk that the applicant reoffended and that he was still was not conscious of his guilt. In these circumstances, a therapeutic treatment was without prospects of success.
33. On 19 June 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1676/05). It found that the decision of the Court of Appeal to consider as lawful the prosecution’s balancing between the public interest in the continuation of the applicant’s preventive detention and the applicant’s interest in his personal liberty had – at least at that time – not been unconstitutional.
34. On 7 November 2005 the Munich I Public Prosecutor’s Office dismissed another request made by the applicant to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure on the same grounds.
35. The applicant’s appeals were to no avail. In its decision of 16 May 2006 the Munich Court of Appeal noted, in particular, that it might appear contradictory to the applicant that measures aiming at his reintegration into society, such as a social therapy, were refused to him because of the deportation order against him, but that the authorities nevertheless refused to suspend the execution of his preventive detention under Article 456a of the Code of Criminal Procedure. However, the refusal of the said measures alone did not mean that the prosecution authorities could only exercise their discretion in a lawful manner by granting his request under the said provision.
36. On 7 September 2007 the Munich I Public Prosecutor’s Office decided to suspend the execution of the applicant’s preventive detention at the date of his expulsion to Bulgaria, and on 1 November 2007 at the earliest, under Article 456a of the Code of Criminal Procedure.
37. On 13 December 2007 the applicant was expelled to Bulgaria in accordance with the deportation order issued by the city of Munich on 16 April 1997.
38. On 30 November 2009 the Korneuburg Regional Court (Austria) convicted the applicant of two counts of murder, one count of attempted murder and robbery with firearms, committed on 1 June 2009 in Austria and sentenced him to life imprisonment. The judgment was upheld on appeal. The applicant was subsequently transferred to Bulgaria in order to serve his sentence.
39. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:
40. The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).
41. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).
42. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension.
43. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
44. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time-limit is two years (paragraph 2 of Article 67e).
45. Pursuant to Article 456a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from German territory. The execution of the sentence or measure may be continued if the expelled person returns to Germany territory (Article 456a § 2 of the Code of Criminal Procedure).
46. Section 9 § 2 of the Execution of Sentences Act provides that prisoners may be transferred to a socio-therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation. The transfer is conditional upon the consent of the head of the socio-therapeutic institution concerned.
47. Under section 11 § 1 of the Execution of Sentences Act, the conditions of detention may be relaxed by making an order permitting the prisoner to perform regular work outside prison either under the supervision of a member of the prison staff (outside work) or without such supervision (work release). The prisoner may further be permitted to leave the prison for a certain time during the day either under the supervision of the prison staff (short leave under escort) or without such supervision (short leave). Under section 11 § 2 of the said Act, these measures may only be ordered with the prisoner’s consent and if there is no risk that the prisoner might seek to abscond or commit offences during the relaxation of the conditions of his detention.
48. Under section 6 § 1 (c) of the Federal Administrative Rules relating to Article 11 of the Execution of Sentences Act, which seek to ensure the uniform application of the law by the authorities, external work, work release and short leave may, as a rule, not be permitted to prisoners against whom a final expulsion order is in force and who are to be deported directly from prison. Exceptions may be granted in agreement with the competent aliens’ authority. Short leave under escort may be authorised.
49. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for the complainants’ preventive detention (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
50. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.
51. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality. As a general rule, proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released.
52. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
VIOLATED_ARTICLES: 14
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-96112
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SHAGIN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant, Mr Igor Igorevich Shagin, is a Russian national who was born in 1970 and lives in Kyiv.
6. On an unspecified date criminal proceedings were initiated on the suspicion that a network of private commercial enterprises, “Top-Service”, directed by the applicant, organized an armed group with conspiracy to kill State officials and businessmen who were allegedly obstructing its business.
7. On 28 April 2000 the Podilskyy District Court of Kyiv sanctioned the applicant for forcefully resisting police and placed him under twelve days' administrative arrest.
8. During the period of 28 April to 10 May 2000 the applicant was questioned and participated in a number of investigative activities as a witness in the criminal proceedings (see paragraph 6 above).
9. On 10 May 2000 the applicant was arrested as a suspect and on the following day he had his first meeting with lawyers.
10. On 19 May 2000 the Kyiv Prosecutor's Office charged the applicant with banditism. Namely, he was charged with having created a gangster group suspected of having committed eight counts of murder, attempted murder and infliction of serious bodily injuries.
11. On 18 April 2001 the pre-trial investigation was declared completed and the applicant was given access to the case file.
12. On 26 June 2001 the investigation was resumed and new charges were brought against the applicant: in addition to banditism, they included infringement on the life of a law-enforcement official and incitement to murder for profit, related to the victims' official duties and committed repeatedly by an organised group following orders.
13. On the same day the applicant's lawyer complained to the Kyiv Prosecutor's Office (“the Kyiv prosecutor”) that by reopening the investigation the investigator had in fact unlawfully prolonged the term of the applicant's detention and had violated his right to defence.
14. On 27 June 2001 the Kyiv prosecutor rejected the above complaints, having noted, in particular, that the reopening of the investigation had been necessitated by the need for additional investigative activities and that the applicant would be given the opportunity to study the case file again after the completion of the investigation.
15. On 29 January 2002 the Kyiv prosecutor found unsubstantiated the applicant's complaints that, inter alia, he had not had access to the schedule for studying the case-file and to certain documents, as he had signed a statement to the contrary.
16. On 13 February 2002 a new indictment was brought against the applicant. He was charged with additional counts of incitement to murder.
17. From 13 to 15 February 2002 the applicant, at his own request, submitted in writing his statements in respect of the new charges, in which he alleged that he himself had been a victim of banditism. However, on 15 February 2002 the investigator proposed that he answer his questions instead, as he claimed that the applicant's statements did not relate to the essence of the charges against him. The applicant explained that he would answer the questions as soon as he had finished writing his statements and asked not to be prevented from using that possibility fully. On the same day the investigator declared the investigation completed, having found the applicant's statements to be of no relevance for the investigation at issue. The applicant's lawyer complained about that to the Kyiv prosecutor, who upheld the investigator's actions.
18. On 30 September 2002 the case was referred to the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) for trial. The applicant continued to be represented by at least two professional lawyers.
19. The proceedings in the Kyiv Court of Appeal, which acted as a first-instance court, lasted from 4 November 2002 until 16 March 2004. As the case had attracted public attention and no court room was big enough for all those wishing to attend, a cinema hall was rented by the court for this purpose.
20. However, on 23 May 2003 the court decided to hold hearings in camera, stating as follows:
“... The hearing is constantly attended by a person, who, according to him, on the orders of Mr Shagin, audiotapes [the proceedings]. This person does not react to the repeated remarks of the Presiding Judge in this respect. Furthermore, this person has a pistol on him.
The Court, bearing in mind the number of charges, with a view to avoiding disclosure of the statements of witnesses and victims, and in order to safeguard the security of the trial participants, according to the recommendations of Section 6 of Resolution No. 10 of the Plenary of the Supreme Court of Ukraine of 18 June 1999 “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants', Articles 7 and 16 of the Law 'On the Protection of the Security of Persons Participating in Criminal Trials'”,
RULED:
to hold further hearings of the criminal case against Shagin Igor Igorevich and others in camera.”
21. In accordance with the procedural legislation this ruling was not subject to appeal. The applicant, who denied having instructed anyone to audiotape the hearings, unsuccessfully called for an investigation into the incident and requested the bench to reconsider its decision.
22. The hearings continued in camera in the cinema.
23. As it follows from a letter of the Kyiv Court of Appeal to the local bar commission of 20 November 2003 on an unrelated issue, the security measures for the trial included the presence of at least seventy guards.
24. In the course of the trial some fifty-five witnesses and fifteen co-defendants gave evidence. The court examined the written statements of about one hundred witnesses who had been questioned during the pre-trial investigation but failed to attend the trial, as well as self-incriminating statements by the co-defendants obtained during the pre-trial investigation. The court further reviewed videotapes of several reconstitutions of events. It also examined a large quantity of written evidence and experts' opinions, which included: the registration and statutory documents of all the companies within the network; their contracts with other enterprises throughout the business chain; findings of the related investigation undertaken in Russia, Belarus, Latvia and Estonia under the inter-State legal aid scheme; findings of the investigation by Interpol; and numerous other documents.
25. During the trial the co-defendants withdrew their self-incriminating statements and pleaded innocent. They alleged that they had been forced to incriminate themselves and the applicant. The court examined their allegations of ill-treatment in police custody (of which the applicant did not complain) and found them unsubstantiated, having referred, inter alia, to the results of medical examinations they had undergone and the lack of any complaints on their part during the investigation.
26. In the course of the trial the applicant requested the court to summon certain witnesses: namely, one of the cofounders of the companies led by the applicant, Mr F., who had allegedly possessed more information than he had disclosed during the pre-trial investigation; certain customs officials; and the manager of one of the Russian companies, who could allegedly confirm his business relationship with the applicant. The court allowed his request concerning Mr F. and rejected the others. Mr F. was summoned by the court several times, but failed to appear.
27. The trial court established that the applicant had managed a network of companies involved in fraudulent financial activities and that he had created a gangster group for the protection of its business interests.
28. On 15 March 2004 it found the applicant guilty of having formed a criminal organisation, three counts of incitement to murder, as well as incitement to inflict serious bodily injuries on a law-enforcement official and infringement on the life of a law-enforcement official, and sentenced him to life imprisonment.
29. The applicant's subsequent appeal in cassation challenged the above judgment on a number of points: the admissibility of the evidence admitted by the court, a lack of conclusive evidence for each count, the refusal of the investigator to continue questioning the applicant, and the court's failure to summon or to ensure attendance of certain witnesses. The applicant also complained that the high-ranking prosecution officials had publicly declared him guilty even before his first questioning as a suspect and that the court had also presumed him guilty from the outset.
30. On 14 December 2004 the Supreme Court of Ukraine, following a public hearing, upheld the applicant's conviction, having heard the arguments of the prosecution and the defence and having assessed the case file materials. Its ruling did not address any of the specific issues raised by the applicant in his cassation appeal. According to the applicant, the Supreme Court held only one hearing, which lasted for about four hours.
31. On 10 May 2000, immediately following the applicant's arrest as a suspect in the criminal investigation, the Kyiv Prosecutor's Office organised a press conference, which received broad coverage in the media.
32. On 12 May 2000 the Segodnia daily newspaper published an article entitled “A gang of killers has been arrested in the capital (sensation)”, which contained the following statements:
“The Kyiv Prosecutor Y. G., his first deputy V. S. and Deputy Head of the Kyiv Department of the Ministry of the Interior told journalists about the arrest of fourteen members of a gang which has been engaged in criminal activities in the city since 1997. ... According to the law-enforcement authorities, the director of one of the “Top-Service” structures, Igor Shagin, is suspected of being a principal inciter. He is charged with eight incitements, including incitement to murder ... Shagin paid about 100,000 US dollars in cash to his accomplices to carry out the crimes. ... The Kyiv Prosecutor stressed that “the officials were persecuted by the gangsters exclusively on account of the scrupulous performance of their duties, which had interfered with the plans of the structure headed by Shagin ...”
33. On the same day the Fakty I Kommentarii daily newspaper published an article entitled “For the first time an organized group of killers, which executed murders of state officials, was arrested in Kyiv”. The article contained the following statements:
“During yesterday's briefing, the Kyiv Prosecutor Y. G. told journalists that a series of ordered murders and attempted murders had been uncovered ... Fourteen members of the gang involved in the commission of those crimes have been arrested: six killers, three intermediaries, four inciters and one arms supplier. The head of the gang is also among the arrestees – it's Igor Shagin, one of the directors of a well-known trading company, “Top-Service”. The killers confessed that it was he who had incited the murders ...”
34. The article also quoted the First Deputy of the Kyiv Prosecutor V. S. as follows:
“30 year old Igor Shagin ... was the inciter of eight out of twelve episodes established by us. ... Shagin paid the killers a total of about 100,000 US dollars to carry out his orders ...”
35. On the same day the Den daily newspaper published an article under the headline “The criminal leader has been identified (eight crimes against Kyiv public officials are attributed to him)”, which contained the following:
“Kyiv Prosecutor Y.G. reported yesterday at the press-conference that the director of “Top-Service”, the Russian national Igor Shagin, had incited eight crimes against State officials between 1997 and 2000...”
36. On the same day the Kievskie Vedomosti daily newspaper published an article entitled “Murderous Top-Service”, in which it quoted the First Deputy of the Kyiv Prosecutor, V. S., as follows:
“According to our calculations, Shagin paid the killers a total of about 100,000 US dollars in cash to carry out his orders. ... In fact, Shagin was the leader of that group. His orders [to murder] were of a systematic nature.”
37. The aforementioned quotations of the First Deputy of the Kyiv Prosecutor V. S. also appeared on 16 May 2000 in the Vecherniye Vesti newspaper's article “Who is behind the killers”.
38. On 15 May 2000 the Svoboda (“Freedom”) newspaper published an article entitled “Bloody business”, where it announced that:
“Sensational reports on the arrest of a large gangster group were disclosed yesterday by the Head of the State Tax Administration of Ukraine M. A. and Kyiv Prosecutor Y. G. According to the Deputy Minister of the Interior V. M., the twelve arrestees, including six professional killers, have a long record of notorious crimes ... Heads of the law-enforcement bodies assured that the ... governmental employees ... had become victims of the business appetites of Igor Shagin, who was the head of Kyiv “Top-Service” Ltd. Do you remember a nice commercial on TV “Oh, 'Top-Service', oh 'Top Service', people are nice here ...”? That nice man Shagin incited others to kill those who prevented him from implementing his plans.”
39. On 18 May 2000 the Yuridicheskaya Praktika (“Legal Practice”) weekly newspaper published an article under the headline “Ukrainian-style presumption of innocence”, in which it expressed a view that the statements made by the public officials concerning the applicant's case were incompatible with the principle of the presumption of innocence. The article contained the following quotations of the Kyiv Prosecutor Y. G.:
“The killers are testifying that Shagin ordered several attempted murders”; “These crimes can be considered resolved even though the investigation is still going on”.
40. Article 129 of the Constitution of Ukraine guarantees the public nature of a trial as one of the fundamental principles of the administration of justice.
41. Article 9 of the Law “On the Judiciary”, in so far as relevant, reads as follows:
“The courts shall examine cases publicly, with the exceptions envisaged by the procedural legislation. (...) In camera hearings are possible upon a court's ruling in the cases envisaged by the procedural legislation.”
42. The Code of Criminal Procedure, in its relevant part, provides as follows:
“Article 20. Public nature of court proceedings
Judicial examination in all courts shall be public, unless the interests of security of the state or other secrets protected by law require otherwise.
Hearing in camera can also be allowed by a reasoned court ruling in cases of crimes by minors, in cases of sexual crimes, and in other cases with a view to avoiding disclosure of the private information of the trial participants, or in cases when it is necessary for the security of persons under protection. ...”
43. The Law “On Protection of the Security of Persons Participating in Criminal Trials” provides for hearings in camera as a security measure (Article 7). Pursuant to its Article 16, hearings in camera may take place if ordered by a reasoned court ruling in cases where it is necessary for the security of persons under protection.
44. Section 6 of Resolution No. 10 of 18 June 1999 of the Plenary of the Supreme Court of Ukraine “On Application of the Law 'On the State Protection of Judges, Employees of Courts and Law Enforcement Bodies and Trial Participants'” reads as follows:
“In order to avoid disclosure of incriminating statements of victims and witnesses, where there is a real danger of infringement on their life, home or property, courts may hold hearings in criminal cases (especially in cases of organized crime) in camera.”
45. The principle of the presumption of innocence is enshrined in Article 62 of the Constitution of Ukraine, which can be found in the judgment of Grabchuk v. Ukraine, no. 8599/02, § 26, 21 September 2006.
Article 2 of the Criminal Code, in so far as relevant, reads as follows:
“A person shall be presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved in compliance with the legally established procedure and established by a court's verdict of guilty”.
46. Resolution No. 5 of the Presidium of the Supreme Court of Ukraine of 20 February 2004 “On the situation with the administration of justice in 2003 and 2004” contained the following paragraph:
“There have been numerous publications in the media in breach of Article 62 of the Constitution concerning persons not yet found guilty of having committed crimes by a court's verdict. Those included the publication of statements aimed at prejudging cases in favour of certain persons.”
VIOLATED_ARTICLES: 6


ITEMID: 001-58214
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AVIS ENTERPRISES v. GREECE
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (out of time)
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 5. The applicant company owns a 13,800 sq. m plot of land on the island of Santorini, a popular tourist destination in Greece.
On 15 February 1978, by decision no. 1103/1978 of the Prefect of the Cyclades islands, the State expropriated real estate covering a surface of 4,200 sq. m, with a view to installing floodlights for Santorini Airport. 270 sq. m of the applicant company’s land were expropriated.
6. On 20 December 1979 the State applied to the Court of First Instance of the island of Syros for a provisional amount of compensation per square metre of land expropriated to be assessed. The applicant company was not summoned to appear and did not do so.
On 23 February 1981 the court assessed the provisional amount of compensation.
On 19 August 1982 the provisional compensation was paid to the Bank for Official Deposits, but the applicant company refused to accept it on the ground that it was substantially less than the value of the land that had been expropriated from it.
7. On 18 August 1981 the applicant company had applied to the Court of Appeal of the Aegean Sea for a final amount of compensation per square metre to be assessed. It had also sought special compensation for three other parcels of its land that had not been expropriated, on the ground that their value had diminished as the expropriated part had divided the land in two.
On 6 July 1984 the Court of Appeal assessed the final amount of compensation and special compensation for the three unexpropriated parcels.
8. On 8 March 1985 the State appealed to the Court of Cassation.
On 27 June 1986 the Third Division of the Court of Cassation upheld the Court of Appeal’s judgment in so far as it had assessed the final amount of compensation and remitted the case to the Fourth Division to rule on the merits of the action brought by the applicant company on 18 August 1981.
On 10 July 1987 the Fourth Division of the Court of Cassation dismissed the applicant company’s claim for special compensation in respect of two of the three unexpropriated parcels of land. The difference between the amount of compensation as provisionally assessed and as finally assessed by the Court of Cassation was not at that time paid to the applicant company.
9. On 25 June 1990 the applicant company applied to the Court of Appeal of the Aegean Sea for a declaration that the expropriation had been rescinded by operation of law as the final amount of compensation due had not been paid.
On 20 March 1991 the Court of Appeal dismissed that application as unfounded.
10. On 29 May 1991 the difference between the amount of compensation as provisionally assessed and the amount as finally assessed by the Court of Cassation was paid to the Bank for Official Deposits. The applicant company, which has not yet accepted that sum, alleges that it was not at any stage advised that it had been deposited.
11. On 10 June 1991 the applicant company appealed to the Court of Cassation against the judgment of 20 March 1991. It also sought an order that the State pay the costs of the proceedings.
On 20 June 1995 the Court of Cassation upheld the impugned judgment and dismissed the applicant company’s appeal. It also held that the applicant company was to bear the costs. In the earlier stages of the proceedings, there had been a set-off between the parties in respect of costs, even though the applicant company had requested that the costs be borne by the State.


ITEMID: 001-93310
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FELINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1948 and lives in Jastrzębie.
5. On 28 August 2000 the applicant was arrested on suspicion of homicide.
6. On 30 August 2000 the Trzcianka District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. The court considered that the need to secure the proper conduct of the investigation justified holding him in custody. The court also stressed the severity of the anticipated sentence.
7. On 20 November 2000 the Poznań Regional Court (Sąd Okręgowy) extended his detention until 30 December 2000. On 27 December 2000 the court ordered that the term should be extended until 30 March 2001. On 26 March 2001 it ordered that the applicant be kept in custody until 30 June 2001. In all its detention decisions the court relied on a strong suspicion that the applicant had committed the offences in question. The court repeatedly stressed that his detention was justified by the need to obtain further evidence.
8. On 11 June 2001 the Trzcianka District Prosecutor (Prokurator Rejonowy) indicted the applicant on charges of homicide, committed with an accomplice.
9. On 25 June 2001 the Poznań Regional Court (Sąd Okręgowy) extended the applicant’s detention. It relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged. It also referred to the need to secure the proper conduct of the proceedings as a justification for holding him in custody. On 30 June 2001 the applicant lodged an appeal. In his appeal he maintained that, given his poor health, detention was putting a severe strain on him. He particularly relied on the atheromatosis which affected his legs.
10. On 24 July 2001 his appeal was dismissed by the Poznań Court of Appeal (Sąd Apelacyjny). It found that there was a risk that the applicant might tamper with evidence, having regard to the fact that the co-accused suffered from a mental disability.
11. Between 28 September 2001 and 19 December 2002 the court held 12 hearings.
12. On 28 September 2001 and 25 October 2001 the applicant lodged applications with the Poznań Regional Court to have his detention lifted or replaced by another preventive measure. He referred to his health problems. The court dismissed the applications. It relied on the likelihood of a severe prison sentence of imprisonment being imposed on the applicant and the need to secure the proper conduct of the proceedings. It further observed that the applicant had received adequate medical care in prison.
13. On 20 December 2002 the Poznań Regional Court convicted the applicant as charged and sentenced him to 13 years’ imprisonment. The applicant and his co-defendant appealed.
14. On 2 September 2003 the Poznań Court of Appeal dismissed the applicant’s appeal. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
15. On 26 May 2004 the Supreme Court quashed the judgment and remitted the case to the Poznań Regional Court. The Supreme Court extended the applicant’s detention until 26 August 2004. The court referred to the seriousness of the offence with which he had been charged and to the need to secure the proper conduct of the proceedings.
16. In the meantime, on 7 November 2003, as a result of the atheromatosis, the applicant’s right leg was amputated.
17. The applicant’s detention was extended by decisions of the Poznań Regional Court of 16 August 2004, 21 February 2005 (upheld by the Poznań Court of Appeal on 23 March 2005) and 23 June 2005.
18. On 16 September 2005 the Poznań Regional Court gave judgment and sentenced him to 13 years’ imprisonment. The applicant appealed.
19. On 22 December 2005 the Poznań Court of Appeal quashed the judgment and remitted the case to the Regional Court.
20. In the course of the court proceedings the applicant’s pre-trial detention was regularly extended. The courts repeated the grounds given in the previous decisions.
21. On 13 June 2006 the applicant lodged an application with the Poznań Regional Court to have his detention lifted or replaced by another preventive measure. He referred to his health problems and the need for specialist medical treatment. On 7 September 2006 at the request of the applicant, the court ordered a medical examination. The results of the medical examination did not reveal grounds for release. However, in the experts’ opinion the applicant’s state of health had deteriorated since the examination on 22 December 2004. The experts concluded that it had been the result of the natural progress of the illnesses (atheromatosis and diabetes). Finally, they noticed that the atheromatosis had led to a serious ischemia of his left leg.
22. On 16 October 2006 the Poznań Regional Court acquitted and released the applicant. The Czarnków District Prosecutor appealed. The appeal was dismissed by the Poznań Court of Appeal on 6 March 2007.
23. On 2 April 2007 the Poznań Appeal Prosecutor (Prokurator Apelacyjny) lodged a cassation appeal with the Supreme Court.
24. On 22 January 2008 the cassation appeal was dismissed.
25. During the entire proceedings, the applicant lodged numerous requests for his case to be examined speedily. However, he failed to lodge a complaint under section 5 of the Law on 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
26. On 25 February 2008 the applicant filed a request for compensation for manifestly unjustified detention on remand under Article 552 of the Code of Criminal Procedure with the Poznań Regional Court. The proceedings are pending.
27. On 11 August 2004 the Court received a letter from the applicant dated 29 July 2004. The letter was sent while the applicant was detained in the Wrocław Prison (Zakład Karny). The envelope bears the following stamps: “Censored, Poznań, on 03.08.2004, Criminal Department III” (Ocenzurowano, Poznań, dnia 03.08.2004, Wydział III Karny) and an illegible signature. It appears that the envelope had been cut open and subsequently resealed with adhesive tape.
28. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
29. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and in its the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V.
30. The legal provisions concerning monitoring of detainees’ correspondence applicable at the material time and questions of practice are set out in paragraphs 65-66 of the judgment delivered by the Court on 4 May 2006 in Michta v. Poland , no. 13425/02.
31. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.
32. Article 552 provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
...
4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly unjustified arrest or detention on remand.”
33. Proceedings relating to an application under Article 552 are subsequent to and independent of the original criminal proceedings in which the detention has been ordered. The claimant can retrospectively seek a ruling as to whether his detention has been justified. He cannot, however, test the lawfulness of his continuing detention on remand or obtain release.
34. The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).
VIOLATED_ARTICLES: 5
8


ITEMID: 001-87703
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF OSMAN KARADEMİR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 5. The applicant was born in 1961 and lives in Istanbul.
6. On 25 May 2002 the applicant was taken into custody by police officers from the Çinili Police Station on suspicion of theft. Following a quarrel between the chief police officer and the applicant at the Çinili Police Station, the chief officer ordered his transfer to the Üsküdar Law and Order Department.
7. Prior to his transfer to the custody of the Law and Order Department, the applicant was taken to the Haydarpaşa Numune Hospital for a medical examination. According to the medical report dated 25 May 2002, there were no signs of ill-treatment on his body.
8. At the Üsküdar Law and Order Department, the applicant was allegedly insulted and threatened by the chief police officer, Remzi Akıncı, who later ordered other officers to torture him. The applicant was kept in a cell until the evening. After several hours he was handcuffed, blindfolded and taken to a cellar, where he was stripped naked and given electric shocks. Due to the pain caused by the shocks, the applicant hit his head on the floor and fainted.
9. On 26 May 2002 the applicant was taken back to the Çinili Police Station.
10. On 26 May 2002 the police officers brought the applicant back to Hayparpaşa Numune Hospital for a second medical examination. First the police officers went into the doctor’s room, and then the applicant was called in. Although the applicant claimed that he had described the type of ill-treatment to which he had been subjected to in police custody, the doctor did not note any of his complaints and concluded in his report that there were no signs of illtreatment on his body. Later, the applicant was brought before an investigating judge who ordered his release.
11. On the same day the applicant lodged a complaint with the District Governor’s office in Üsküdar against the five police officers who had allegedly illtreated him. He also lodged petitions with the offices of the Üsküdar District Governor, the Istanbul Governor and the Minister for Internal Affairs, describing in detail the treatment to which he had been subjected during his detention in police custody.
12. Upon the request of the District Governor, on 29 May 2002 the applicant was first examined by a doctor at the Üsküdar Clinic and then taken to the Haydarpaşa Numune Hospital for a further examination. Both medical reports noted that there was pain and sensitivity in the inguinal area, urinary problems and hyperaemia on the penis. In the light of these medical findings, a doctor at the Üsküdar branch of the Forensic Medicine Institute drafted a third report, concluding that the applicant was unfit to work for three days.
13. On 4 June 2002 the applicant lodged a complaint with the Üsküdar Chief Public Prosecutor’s Office against the police officers at the Üsküdar Law and Order Department who had inflicted ill-treatment on him.
14. On 5 June 2002 the applicant was questioned by the Disciplinary Bureau of the Üsküdar police headquarters following his complaint lodged with the Üsküdar District Governor’s office.
15. On 6 June 2002 two police officers, one of whom was acting as investigator, questioned Dr İbrahim Öner from the Haydarpaşa Hospital in relation to his examination of the applicant on 26 May 2002. He stated the following:
“On 26 May 2002 police officers brought Osman Karademir to the Emergency Surgical Unit. He was taken into the examination room alone. The police officers on duty waited outside. He was stripped naked and his examination was carried out in the light of his allegations. No external lesions were identified following the examination. A report was drafted and the person in question was handed over to the police officers. I have just learned now that Osman Karademir, who was ill-treated by officers and complained about it, obtained another report three days after my report and that that report indicated the presence of bilateral inguinal pain, sensitivity and hyperaemia on the scrotum and penis. When I examined the patient I did not make such findings. The person in question was completely healthy. If I had found any sign of physical violence, I would have indicated it in my report.”
16. In a preliminary investigation report dated 17 June 2002, a police superintendent, acting as investigator, concluded that there was no need to bring charges against the police officers Remzi Akıncı, Muafak Çetin, Dündar Özel, Hakan Taş and Mesut Kök. Having heard the accused, the applicant and some witnesses, the investigator considered that the applicant’s allegations were unsubstantiated in view of the Haydarpaşa Numune Hospital’s report dated 26 May 2002 which stated that there were no lesions on the body of the applicant. He also found that the police officer Muafak Çetin had been on duty somewhere else and the police officer Dündar Özel on leave on the day of the alleged events.
17. On 19 June 2002 the Üsküdar District Governor decided that charges should not be brought against the police officers. The decision noted that the police officers whom the applicant had accused had not been present in the police station on the day of the alleged incident. The applicant applied to the Istanbul District Administrative Court for the annulment of the District Governor’s decision. His request was dismissed.
18. On 29 August 2002 the Provincial Police Discipline Committee attached to the Istanbul Governor’s office, composed of three police officers, the Governor, his deputy and a civil servant, decided that no punishment should be imposed on the police officers Mesut Kök, Muafak Çetin, Dündar Özel and Remzi Akıncı who had allegedly inflicted illtreatment on the applicant and insulted him during his detention. The disciplinary committee found that Muafak Çetin had been on duty at a meeting organised by a labour organisation and that Dündar Özel had been on leave on the date of the alleged events. Furthermore, considering that the medical reports did not indicate the presence of any signs of lesions on the body of the applicant, the disciplinary committee concluded that the applicant’s allegations were unsubstantiated.
19. On 25 December 2002 the Üsküdar Chief Public Prosecutor took statements from the police officers who had allegedly inflicted ill-treatment on the applicant. The police officers all denied the allegations.
20. On 6 January 2003 the Üsküdar Chief Public Prosecutor took statements from the applicant in relation to his allegations of ill-treatment. The applicant explained that on 25 May 2002 he had first been taken to the Çinili Police Station and then to the Haydarpaşa Numune Hospital. At the hospital he said that he did not have any bruises because he had not been beaten up at the police station. However, he had then been transferred to the Üsküdar Law and Order Department where he had been blindfolded, handcuffed and subjected to various forms of ill-treatment in the course of his interrogation. In particular, he claimed the following:
“...All the officers at the Law and Order Department already knew me... In the afternoon Chief Superintendent Officer Remzi Akıncı arrived. He ordered the police officers to place me in custody... Then they took me out of custody. Ali Hakan Taş and another police officer, with the first name Adem, blindfolded me with a piece of cloth. They took me to a room. They questioned me while I was blindfolded. They slapped me only once in that room. I could not identify who slapped me since I was blindfolded. They removed my blindfold in that room. Remzi Akıncı was also there. He ordered them to take me to the custody room again. One hour later they took me out of the custody room again and the same police officers blindfolded me again. They handcuffed me. The police officer Hakan was on my right and Adem was on my left. We went along a corridor and down some stairs. I entered through an aluminium door. Two or three persons were punching and kicking me. I told them that I had not stolen anything and asked them to release me. They stripped me completely naked. The police officer named Hakan had told me earlier that he was sorry for me but that the orders had come from somewhere else. Hakan called on somebody as “Başkomiserim (my chief police superintendent) ...” I could not see anyone because I was blindfolded. They put a cable on my chest and stuck it down with tape. They connected another cable to my toes and sexual organ. They gave me electric shocks using something like a telephone. I fainted. When I opened my eyes I was outside the building. The police officers Hakan and Adem removed my blindfold. A police officer called Mesut was also there. Hakan dressed me... Then they put me in a car... They handed me over to the police officers at the Çinili Police Station who took me to Haydarpaşa Numune Hospital in the morning. When I entered the doctor’s office the civilian team of the Law and Order Department was already there. The doctor who examined me was a general surgeon. He asked me if I had a problem. I told him that I had been beaten up and given electric shocks. I took off my clothes. He concluded that I did not have any problem and sent me to the Çinili Police Station. The police officers then took me to the public prosecutor on duty.
The public prosecutor on duty read some papers and called me in. He asked me whether I [had stolen] the [kombi heater]. I told him that I had been tortured but he did not listen to me... He noted my allegations of torture. Then he released me...
I am coughing up blood as a result of the torture. I have also become impotent. A liquid is still coming out of my sexual organ. I have been unable to pursue my business activities as a result of the problems caused by the torture. I am unable to pay my electricity and water bills...”
21. On 4 April 2003 the Üsküdar Chief Public Prosecutor took new statements from the applicant. The applicant stated that he did not have any medical report apart from the one issued by Haydarpaşa Numune Hospital on 29 May 2002. He claimed that he could not undergo an examination at the Cerrahpaşa Medical Faculty’s Urology Department because he could not afford the fees and that he had informed the President of the Forensic Institute accordingly.
22. On 8 July 2003 the Üsküdar Public Prosecutor took further statements from the applicant regarding his inability to undergo a medical examination at the Cerrahpaşa Medical Faculty Hospital.
23. On 31 October 2003 the Üsküdar Criminal Court acquitted the applicant of the charges of theft, holding that his guilt had not been proven beyond doubt.
24. On 3 October 2003 the Üsküdar Chief Public Prosecutor took statements from Abdullah Danacı, a police officer at the Üsküdar Law and Order Department, who claimed that he had no information about the applicant’s allegations.
25. On 14 November 2003 the Üsküdar Chief Public Prosecutor filed an indictment with the Üsküdar Assize Court charging four police officers from the Üsküdar Law and Order Department, including Remzi Akıncı, under Article 243 § 1 of the Turkish Criminal Code, with inflicting illtreatment on the applicant. The Chief Public Prosecutor considered that the decision of the Üsküdar District Governor of 19 June 2002 had to be disregarded, since the alleged ill-treatment had taken place during the police officers’ exercise of their judicial functions. He also decided that, due to the lack of evidence, no prosecution should be brought against two other police officers or against Remzi Akıncı in respect of the allegation of threatening to kill the applicant. This latter decision was upheld by the Kadıköy Assize Court on 19 February 2004.
26. On 13 December 2004 a committee of experts at the Forensic Institute examined the applicant and concluded as follows:
“Taking into account the report of the Cerrahpaşa Medical Faculty’s Urology Department, which stated that no erection malfunction could be identified following physical examination, psychiatric consultation and sex hormone, penile arthritis Doppler US and NPT tests, it is to be concluded unanimously that no there was no medical finding of sexual impotence.”
27. The applicant filed an objection against the decision of the Üsküdar Chief Public Prosecutor not to prosecute.
28. On 19 February 2004 the Kadıköy Assize Court dismissed the applicant’s objection.
29. On 13 April 2005 the Üsküdar Assize Court acquitted the accused police officers on the basis of lack of sufficient evidence and the principle in dubio pro reo. In acquitting the police officers, the court relied on the medical reports dated 25 and 26 May 2002 issued by Haydarpaşa Numune Hospital and the Forensic Institute’s medical report dated 13 December 2004.
30. On 11 May 2005 the applicant appealed against the judgment of the Üsküdar Assize Court.
31. On 25 February 2006 the Chief Public Prosecutor at the Court of Cassation submitted his written observations. He asked the Court of Cassation to quash the judgment of the Üsküdar Assize Court, arguing that it had erred in relying on the Forensic Institute’s medical report dated 13 December 2004 which stated that the applicant did not suffer from sexual impotence. He noted that the first-instance court should have inquired into the cause of the marks identified on the body of the applicant in the Üsküdar Forensic Institute’s medical report dated 29 May 2002. In his opinion, the court should have considered whether the marks were the result of the alleged ill-treatment inflicted upon the applicant.
32. On 17 October 2006 the Court of Cassation upheld the decision of the first-instance court.
33. A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).
VIOLATED_ARTICLES: 3


ITEMID: 001-76716
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF GUBENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - State to pay outstanding judgment debt;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1952 and resides in the town of Novogrodovka, Donetsk region, Ukraine.
6. In 2000 the applicant instituted proceedings in the Novogrodovskiy Town Court against the Novogrodovskaya Mining Company No. 1/3 - a State-owned enterprise - to recover compensation for work related injuries and other payments. By decision of 20 March 2000, the court awarded the applicant UAH 18,092.56.
7. On 18 April 2000 the Bailiffs’ Service suspended the enforcement proceedings in the applicant’s case. On 12 May 2000 the Novogrodovskiy Town Court ordered the Bailiffs’ Service to resume the enforcement proceedings.
8. By decisions of 30 August 2000 and 14 May 2001, in the course of bankruptcy proceedings against the debtor, the Commercial Court of the Donetsk Region imposed a ban on the seizure and sale of the debtor’s assets.
9. In 2001 the applicant instituted proceedings in the Novogrodovskiy Town Court against the Bailiffs’ Service for failure to enforce the judgment in his favour. On 3 September 2001 the court found against the applicant, finding no fault on the part of the bailiff. On 5 November 2001 the Court of Appeal of the Donetsk Region upheld the decision of the first-instance court. On 26 March 2002 the judge of the Novogrodovskiy Town Court adjourned consideration of the applicant’s appeal in cassation for failure to comply with procedural requirements and to pay the court fees. The parties did not submit any information with regard to the outcome of these proceedings.
10. In February 2003 the Novogrodovskaya Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, in February 2004 the enforcement proceedings were transferred to the Selidovskiy Town Bailiffs’ Service (Отдел Государственной исполнительной службы Селидовского городского управления юстиции).
11. The applicant instituted proceedings in the Selidovskiy Town Court against the Selidovskiy Town Bailiffs’ Service claiming compensation for material and moral damage caused by a lengthy non-enforcement of the judgment in his favour. On 30 June 2005 the Selidovskiy Town Court asked the applicant to pay a court fee. The parties did not submit any further information about these proceedings.
12. The judgment of 20 March 2000 has been enforced in part and the applicant was paid UAH 11,903, the remaining debt being UAH 6,189.56.
13. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71529
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BALLERSTEDT AND OTHERS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Mark Villiger
TEXT: The applicants, Mr Uwe Ballerstedt, Mr Götz Dieter Lohse, Ms Antje Rink, Ms Silke Luther and Mr Hans-Dieter Lohse, are German nationals who live in Pretzien. They were represented before the Court by Mr M. Moeskes, a lawyer practising in Magdeburg.
The applicants are heirs of associates of a limited partnership (Kommanditgesellschaft) which owned land in Pretzien on the territory of the former German Democratic Republic (neue Bundesländer – hereinafter called New Länder). The land comprised forests and a quarry. On 19 September 1967 the property was expropriated by the authorities of the German Democratic Republic (“GDR”) pursuant to the Reconstruction Act (Aufbaugesetz) in order to create a recreational area (Erholungsgebiet). Compensation amounting to 19,092.00 Marks of the GDR was fixed under the “Act on Compensation for Expropriation under the Reconstruction Act” (Gesetz über die Entschädigung bei Inanspruchnahme nach dem Aufbaugesetz). However, that sum was never paid out, as it was charged up against claims the State had against the limited partnership.
Following German Unification the applicants requested restitution under the Property Act (see “Relevant domestic law and practice” below) on 20 October 1992. On 18 November 1993 the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen) rejected their request, stating that the requirements for restitution were not met. On 13 January 1997 the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung offener Vermögens-fragen) rejected the applicants’ opposition. Subsequently they brought an action in the Magdeburg Administrative Court.
The court rejected the claim for restitution confirming that the requirements of sections 1 (1a), 1 (1b) and 1 (3) of the Property Act were not fulfilled.
Firstly, the court held that section 1 (1a) of the Property Act was not applicable, as the applicants’ predecessors had been expropriated and compensated. It was irrelevant that the compensation had actually not been paid out, as section 1 (1a) of the Property Act applied only to expropriations for which no compensation was provided under GDR law. It referred to the judgment of the Federal Administrative Court of 24 March 1994 (see “Relevant domestic law and practice” below).
Secondly, the court found that the requirements of section 1(1b) of the Property Act were not met. It explained that according to the Federal Administrative Court’s case-law that provision had to be interpreted restrictively. Contrary to its wording, the amount of compensation alone was not decisive. It applied only to those expropriations which had been carried out by the GDR authorities pursuant to a discriminatory State practice. As an example the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) of 28 July 1977, which had fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”. The court found no indication for such a discriminatory State practice in the present case.
Lastly, the court elaborated on the requirements of section 1(3) of the Property Act. At the outset it noted that, according to the Federal Administrative Court’s case-law, “arbitrary” or “manipulative” expropriations also fall within the ambit of that provision. However, “arbitrary” or “manipulative” meant more than a mere violation of GDR law. The court recalled that an expropriation was arbitrary if there had been either no legal basis for the purpose of the expropriation under GDR law or if the GDR authorities had falsely indicated a purpose while secretly pursuing a different one. Regarding the present case, the court acknowledged that the Reconstruction Act did not, according to its wording, allow expropriations for creating recreational areas. Its purpose was rather to reconstruct or maintain housing. However, the court pointed out that the GDR authorities had applied the Reconstruction Act extensively, as had already been held by the Federal Administrative Court in its judgment of 5 March 1998 (see “Relevant domestic law and practice” below). Furthermore, the court referred to several resolutions by the Council of the District of Magdeburg (Rat des Bezirks Magdeburg) dating back to the expropriation era, which had called for the creation of additional recreational areas. The court found that the authorities then involved had, possibly wrongly, assumed that the Reconstruction Act was a blanket clause for expropriations which served important social projects. The court also referred to a GDR textbook on the Reconstruction Act in which the author indicates that the Reconstruction Act was not only used for the creation of housing, but also for other projects such as cemeteries or farm stables. The court therefore concluded that in GDR practice such expropriations under the Reconstruction Act were possible and common. It further found that the expropriation had been considered to fall within that purpose. Furthermore, the court found that the authorities had acted in accordance with the “basic ideological ideas” (ideologische Grundvorstellungen) on which the GDR legal system was based. The court therefore concluded that there was no indication of a “manipulative” or “arbitrary” expropriation within the meaning of the Property Act and refused the applicants leave to appeal on points of law.
The court rejected the applicants’ complaint against the refusal of leave to appeal on points of law, confirming the lower court’s reasoning in respect of the application and interpretation of sections 1 (1a), (1b) and (3) of the Property Act.
In particular, the court stressed that in GDR law and practice the Reconstruction Act was interpreted broadly. It held that even if the Reconstruction Act had not provided for expropriation in the present case, this mistake would not constitute a grave and evident violation of the principles of the Reconstruction Act. Therefore, the expropriation could not be considered arbitrary or manipulative within the meaning of section 1 (3) of the Property Act.
The Federal Constitutional Court refused to admit the applicants’ constitutional complaint.
“...
3. Expropriated real estate is in principle to be returned to the former owners or their heirs, having regard to the type of case specified in sub-paragraphs (a) and (b) below.
(a) It is not possible to restore rights of ownership over land and buildings whose use or purpose has been altered, in particular by being dedicated to public purposes, used for housing developments, for commercial purposes or incorporated into new business units.
Compensation will be paid in these cases, in so far as it has not already been made pursuant to the laws and regulations applicable to citizens of the German Democratic Republic.
(b) In so far as citizens of the German Democratic Republic have in good faith acquired ownership or rights of user in rem (dingliche Nutzungsrechte) over real estate, socially acceptable indemnification (sozialverträglicher Ausgleich) is to be made to the former owners by substituting real estate (Grundstücke) of a comparable value or by paying compensation. ...”
The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was also part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the unified Germany after the unification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable in order to achieve permanent legal order in Germany. The pertinent provisions read as follows.
Section 1
“(1) This Act settles claims to property,
(a) which was expropriated without compensation and transferred to public property (Volkseigentum);
(b) expropriated for a lesser amount of compensation than citizens of the German Democratic Republic were entitled to; ...”
(3) This act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings, such as abuse of power, corruption, duress or deception by the purchaser, the State authorities or third parties.”
In its annotation of the bill the German Government made the following comments on the Property Act’s purpose and meaning.
“... For the time after the foundation of the German Democratic Republic (7 October 1949) this Act provides for restitution, if owners were deprived of their property assets (Vermögenswerte) in a way which is incompatible with the rule of law. This Act does not intend to amend every interference with private means (Privatvermögen) which took place during the last 40 years pursuant to GDR law on the basis of a socialist economic and social order. ...”
Article 19
“Administrative Acts of the German Democratic Republic which were issued before the accession takes effect remain in force. They can be revoked if they are incompatible with the rule of law of the provisions of this treaty. ...”
Regarding the interpretation of section 1 (1a) of the Property Act the Federal Administrative Court held that restitution was excluded, even if the prescribed compensation, although provided under GDR law, had not been fixed, had not been paid out, had been charged up or had been withheld for other reasons by the GDR authorities. Furthermore, the court elaborated that the Property Act provided only for the revocation of certain cases of expropriations. It pointed out that the first sentence of Article 19 of the Unification Treaty stipulates that all administrative acts of the GDR authorities remain in force. Only administrative acts which were incompatible with the principle of the rule of law (rechtsstaatliche Grundsätze) and the principles of the Unification Treaty were to be revoked. The court held that the legislator had not intended to grant restitution in a case in which the compensation payment was actually not made, but only in cases in which GDR law did not provide for compensation at all. Only those expropriations reached a level of injustice that justified restitution.
In a second judgment of the same day the Federal Administrative Court elaborated the following on the scope of section 1 (1b) of the Property Act. It stated that, contrary to its wording, that provision required more than just an expropriation for a lesser amount of compensation than citizens of the GDR were entitled to. The court held that section 1 (1b) had to be read in conjunction with section 1 (1a). The court said that, if the fact that compensation was fixed, but not paid out, did not entitle to restitution under section 1 (1a), it could not be that a lesser amount of compensation was in itself sufficient under section 1 (1b) to justify restitution. It followed that only those expropriations fell within the ambit of section 1 (1b) which had been conducted pursuant to a discriminatory State practice. As an example for such a discriminatory State practice the court mentioned the decision of the GDR cabinet (Ministerratsbeschluss) dated 28 July 1977 which fixed a lesser amount of compensation for real estate which was owned by persons residing in West-Berlin and other “capitalist States”.
Regarding the interpretation of section 1 (3) of the Property Act, the Federal Administrative Court held that “manipulative or “arbitrary” expropriations also fall within the ambit of that provision. However, it is not sufficient that the expropriation was unlawful under GDR law. It is necessary that the threshold of arbitrariness was crossed. The Federal Constitutional Court stated that an expropriation was arbitrary or manipulative if the GDR authorities had falsely indicated a legitimate purpose for the expropriation, but secretly pursued a different purpose. Furthermore, an arbitrary or manipulative expropriation was given if there had been no legal basis for it under GDR law.
The Federal Administrative Court repeated that section 1 (3) of the Property Act demanded an examination on a case-by-case basis and required an elevated level of injustice in each case (qualifiziertes Einzelfallunrecht). Such a level of injustice was not reached if an expropriation had been conducted in accordance with GDR legal provisions and pursuant to the basic ideological ideas (ideologische Grundvorstellungen) on which those provisions were based.
In this judgment the Federal Administrative Court held the following regarding the application and interpretation of the Reconstruction Act by the GDR authorities. It stated that the GDR authorities were of the view that the Reconstruction Act had a very broad scope. Expropriations for the benefit of inter alia State-owned enterprises, co-operatives, parties and mass organisations had been allowed. In the case which was decided by the Federal Administrative Court, the expropriation had been carried out for the benefit of the unified trade union (FDGB). The Federal Administrative Court doubted whether that expropriation, as a matter of principle, fell within the scope of the Reconstruction Act, but found that even if the GDR authorities had wrongly applied the Reconstruction Act, this would not constitute a grave and evident violation of the basic principles of the Reconstruction Act. Therefore, the measure in issue could not be considered an arbitrary expropriation within the meaning of section 1 (3) of the Property Act.


ITEMID: 001-93740
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: YAGMAKAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Rezzan Yağmakan, is a Turkish national who was born in 1981 and lives in İzmir. He was represented before the Court by Mr Z. Değirmenci, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 August 2002, at 12 noon, the applicant, who was sitting at a cafe in a park, was arrested by two police officers from the Menemen Security Directorate on suspicion of involvement with an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan) / KADEK (Kurdistan Freedom and Democracy Congress).
In the application form, the applicant alleged that the two police officers had been plain-clothed, that they had asked for his identity papers and that just as he was about to show them, they had physically and verbally attacked him. They had made him lie down in the park and kicked and punched him. The police officers had later handcuffed him and taken him to the police station. Both on the way to and inside the police station the applicant had been subjected to beatings and sworn at.
According to the record of the arrest, drafted by the police officers on the same day, the applicant resisted arrest and as a result one police officer had sustained injuries. The applicant signed the record.
At 1.35 p.m. the applicant was examined by a doctor at the Menemen State Hospital, who noted the presence of superficial scratches on the applicant’s back and a slight bruise on the right side of the back. The doctor further noted superficial scratches on both elbows and the right knee.
One of the police officers, Mr K.A., was also examined by a doctor at the Menemen State Hospital at the same time. The doctor noted that he had a 3 cm superficial cut and a graze on his left elbow, a 5 cm x 5 cm bruise on his left hand, a superficial graze on his right elbow and a 3 cm x 10 cm bruise on the left side of his neck.
Mr K.A., the police officer, gave a statement at the police station, where he submitted that the applicant had resisted arrest and, to avoid having to get inside the police car, had tried to escape, had thrown himself to the floor and had clung to a tree. He maintained that the police had had to force the applicant into the car by holding on to his arms and body and that during this time the applicant had injured him.
At 4.15 p.m. the applicant was examined for a second time at the Menemen State Hospital. The report prepared at the end of this examination did not reveal any new findings. Thereafter, the applicant was handed over to policemen from the anti-terrorism branch of the İzmir Security Directorate.
On 5 August 2002 at 5.15 p.m. the applicant was examined by a doctor at the Atatürk Eğitim Araştırma Hospital in İzmir. Referring to the findings indicated in the report of the Menemen State Hospital, the doctor stated that there were no new marks on the applicant’s body.
On 6 August 2002 at 11.30 a.m. the applicant was once again taken to the Atatürk Eğitim Araştırma Hospital in İzmir. No new marks were found on the applicant’s body.
On 6 August 2002 the applicant was questioned by Mr K.Y., a prosecutor at the Menemen public prosecutor’s office. He was told of his rights and a lawyer was assigned to him from the Bar. The applicant submitted that he was part of the İzmir HADEP youth committee and that his job was to organise district youth committees. He claimed that he did not earn any money but ate, drank and stayed as a guest at the places which he visited. The applicant stated that while he was sitting at a café of the president of the HADEP district headquarters, the police had come and invited him to the police station. They had told him that his statement was going to be taken. He had become angry, had told them that they could not take him until the president came and had tried to prevent them from taking him. The applicant maintained that he had not hit the police officers but had only resisted getting into the police car. He said that he regretted his acts and had apologised to the police officers.
On the same day, Mr K.Y., the prosecutor, requested the Menemen Magistrates’ Court to remand the applicant in custody. Before that court, where the applicant was told of his rights in the presence of his Bar-appointed lawyer, the applicant also admitted that he had refused to go to the police station and had resisted arrest. He further maintained that he regretted his acts and had apologised to the police officers. The court dismissed the prosecutor’s request for the applicant to be remanded in custody and he was released.
At 4.15 p.m. the applicant was examined at the Menemen State Hospital, where no signs of ill-treatment were found on his body.
On 9 August 2002 Mr K.Y., the prosecutor, upon a complaint by Mr K.A., the injured police officer, filed a bill of indictment against the applicant under Article 258 §§ 1 and 3 of the Criminal Code for using physical violence against a police officer in the course of his duties.
On the same day, the applicant contacted his legal representative before the Court and told him about the ill-treatment.
On 12 August 2002 criminal proceedings before the Menemen FirstInstance Court commenced against the applicant.
On 27 September 2002 the applicant lodged an official complaint with the Menemen public prosecutor’s office against the two police officers who had arrested him, alleging ill-treatment. In his complaint the applicant submitted that the police, without introducing themselves, had told him to come with them and before he understood what was happening they had started to hit and kick him and had handcuffed him. He maintained that the police had continued to beat and kick him both in the car and later at the police station. They had also sworn at him. The applicant claimed that afterwards he had been taken to İzmir, where he had also been ill-treated.
On 7 November 2002 the prosecutor, Mr M.B., examined the case file concerning the criminal proceedings brought against the applicant.
On 18 December 2002 the prosecutor, Mr M.B., heard evidence from the accused police officers. They submitted, inter alia, that they had introduced themselves and had shown their badges to the applicant and had asked him to accompany them to the police station. However, since the applicant had refused and resisted, force had had to be used to subdue him and make him get into the car. The police officers asserted that one of them had been injured during the arrest. They further noted that the applicant had not been taken into custody but had sat with them in their office until a unit of police officers from İzmir had come to pick him up.
On 23 December 2002 the prosecutor, Mr M.B., taking into account, in particular, the criminal proceedings brought against the applicant for using physical violence against a police officer in the course of his duties, decided not to prosecute the two police officers who had arrested the applicant, on the ground that the latter had acted within the scope of their duties in accordance with section 6 of Law no. 2559 on the duties and powers of the police. An objection by the applicant to that decision was dismissed by the İzmir Assize Court on 21 May 2004. Its decision was served on the applicant on 1 June 2004.
In his observations the applicant submitted that, subsequently, he had been convicted by the Menemen First-Instance Court.


ITEMID: 001-91638
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: REKACHYNSKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
TEXT: The applicant, Ms Lyudmyla Stepanivna Rekachynska, is a Ukrainian national who was born in 1945 and lives in Ivano-Frankivsk. She is represented before the Court by Ms S.A. Golubko, a lawyer practising in Ivano-Frankivsk. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 October 1997 the applicant lodged a civil claim with the Ivano-Frankivsk Town Court (“the Town Court”) against her two daughters seeking their eviction from the flat where they were cohabiting and an order requiring them not to impede her use of the flat.
On 8 July 2004 the Town Court, following a hearing which the applicant attended, partly allowed her civil claim and ordered her daughters not to impede her use of the flat.
The judgment became final on 9 August 2004, none of the parties to the proceedings having filed an appeal within the one-month statutory time-limit. It was served on the applicant on 16 June 2005.
According to Article 218 of the Civil Procedure Code, a judgment must be publicly pronounced, either fully or in its introductory and operative parts, immediately after the hearing.
Article 222 of the Code, in its relevant part, reads as follows:
“2. Copies of the judgment shall be issued to the parties, participating in the hearing, on their request, no later than within five days following the pronouncement of the judgment.
3. The judgment shall be served on the parties, who did not attend the hearing, within five days following its pronouncement [...].
4. Copies of judgments may be repeatedly issued to the parties at their expense.”
In practice, written copies of judgments are issued to the parties, who participated in the hearing, only when explicitly requested for.