ITEMID: 001-68204
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NARCISIO v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Giovanni I. Narcisio, is a Netherlands national who was born in 1970. He is currently detained in Bon Futuro prison (formerly named Koraal Specht) on Curaçao (Netherlands Antilles). He is represented before the Court by Ms B.E. Paasman, a lawyer practising in Rotterdam. The respondent Government are represented by Mr R.A.A. Böcker and Ms J. Schukking of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 November 1998 an investigating judge (rechter-commissaris) based in Curaçao, on an application by the local public prosecutor (officier van justitie), issued an order for the applicant to be taken into initial detention on remand (bewaring) on murder and firearms charges. In relevant part, this order read as follows:
“... A serious danger is apparent that the suspect may flee, since it appeared that the suspect was not resident in the Netherlands Antilles.
A serious public safety reason requiring the suspect's immediate deprivation of liberty is apparent, namely:
the legal order has been seriously upset by the crime presumably committed; it is, after all, considered unacceptable in society that in case of a criminal act such as the present the suspect should be allowed to remain at large while awaiting trial;
the crime presumably committed carries a temporary prison sentence of six years or more;
there is a real possibility that the suspect will commit a crime which, according to its statutory definition, carries a prison sentence of six years or more;
detention on remand should reasonably be considered necessary for the purpose of establishing the truth through means not including statements of the suspect; namely, it should be made possible to hear witnesses who must be able to give evidence without any possibility of its content being influenced by the suspect.
...
[The suspect shall undergo] detention on remand in the Remand Centre [i.e. Koraal Specht prison] or if need be, but in that case for as short a time as possible, in a police station on Curaçao. ”
The applicant was arrested in Rotterdam, Netherlands, on Thursday 21 January 1999 at 2.10 a.m. by an arresting team of the Rotterdam-Rijnmond regional police force.
The following day, Friday 22 January 1999, at 10.15 a.m. the applicant was brought before the Rotterdam public prosecutor, to whom he made a statement denying all knowledge of the matters charged.
He was then brought before the investigating judge of the Rotterdam Regional Court (arrondissementsrechtbank), before whom he was assisted by a lawyer. The applicant again denied all knowledge of the case and stated that he did not wish to be sent to Curaçao. His lawyer suggested, referring to conditions of detention in Koraal Specht prison, that for humanitarian reasons it would be preferable for the applicant to be tried in the Netherlands.
That afternoon at 2.20 p.m. the investigating judge informed the applicant that he did not find the applicant's arrest and detention unlawful. He added that he lacked competence to decide where the applicant should be tried.
That evening at around 8.02 p.m. the applicant's lawyer sent a fax to the Minister of Justice and the Rotterdam public prosecutor, with a copy to the standing committee on justice (vaste commissie voor justitie) of the Lower House of Parliament. This fax read as follows:
“THE NETHERLANDS JUSTICE AUTHORITIES HAVE ANNOUNCED THEIR INTENTION TO HAVE A PERSON SUSPECTED OF A CRIMINAL ACT, ARRESTED ON 21 JANUARY 1999 IN ROTTERDAM, DEPORTED TO CURAÇAO ON MONDAY 25 JANUARY 1999, WHERE HE WILL BE SUBJECTED TO THE PRISON REGIME OF THE KORAAL SPECHT PRISON, OR A COMPARABLE REGIME WHICH RUNS COUNTER TO THE HUMAN VALUES LAID DOWN IN INTERNATIONAL TREATIES TO WHICH THE NETHERLANDS, AMONG OTHER STATES, HAS CONSENTED TO BE BOUND. THIS RELATES TO SERIOUS INTERFERENCES WITH HUMAN DIGNITY, INCLUDING RAPE, VIOLENCE, DISEASE, MURDER, ANARCHY, PHYSICAL DOMINATION, GANGSTERISM AND INHUMANE CONDITIONS OF DETENTION IN TOO CRAMPED CELL SPACES WITH TOO MANY PEOPLE. THE KINGDOM OF THE NETHERLANDS WITHIN EUROPE MAY NOT MAKE ITSELF AN ACCOMPLICE TO THIS AND SHOULD PREVENT THIS IMMINENT THREAT OF A VIOLATION OF AN INDIVIDUAL'S HUMAN RIGHTS MATERIALISING.
Your Excellency,
In the above matter I represent the interests of Giovanni Inocente NARCISIO, born on 14 November 1970 on Curaçao. My client has been arrested on Thursday 21 January 1999 in Rotterdam on suspicion of acts proscribed by Articles 302 and 300 of the Criminal Code of the Netherlands Antilles, at the request of Mr F.P. Wiel, investigating judge on Curaçao. His arrest is based on Articles 36 and 40 of the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk), read in conjunction. My client has Netherlands nationality.
The public prosecutor in charge of the case here, Ms A.M. Zwaneveld, has announced her intention to have my client flown to Curaçao on Monday 25 January 1999, to be taken into the initial detention on remand (bewaring) ordered there. I have made clear my client's objections to this course of action, but the public prosecutor is of the opinion that there are no reasons to prevent the applicant's return to Curaçao. There is thus a threat of a serious and possible irreversible violation of the applicant's civil rights, so that an immediate measure is called for.
The Public Prosecutor's decision is devoid of legal foundation. The request of the Public Prosecutor comprises a request for his arrest for the purpose of transferring him to the competent authorities in the Netherlands Antilles. However, Article 40 of the Charter for the Kingdom only mentions judgments and orders and the request does not fall within the scope of that Article.
The order for initial detention on remand given by the investigating judge does come within the scope of this Article, but in that connection it should be noted that this order has already been carried out and that the suspect's transfer to Curaçao has not been ordered, nor is it indicated. The investigating judge, according to the wording of his order, considers that:
'detention on remand should reasonably be considered necessary for the purpose of establishing the truth through means not including statements of the suspect; namely, it should be made possible to hear witnesses who must be able to give evidence without any possibility of its content being influenced by the suspect.'
Since this is the main reason for the order, the need for the suspect's transfer [to Curaçao] cannot be understood. He can serve his initial detention on remand, and if necessary his extended detention on remand (gevangenhouding), in the Netherlands without any problem, which will answer the purpose of the criminal investigation.
The decision of the public prosecutor to proceed to deportation is not only incorrect but also not based on the decision of the investigating judge. Another requirement stated in Article 40 of the Charter is that the legal provisions of the country approached should be respected. That is not the case here. As a result of the public prosecutor's decision my client is likely to be exposed to the prison system of Curaçao which, as was found recently by members of the Lower House of Parliament, is in an extremely deplorable condition and does not meet internationally agreed standards.
Article 3 of the European Convention on Human Rights, which provides that no one may be subjected to torture or to inhuman or degrading treatment or punishment, is thus contravened.
In addition, it involves a contravention of Article 26 of the Prison Act (Beginselenwet Gevangeniswezen), which provides that persons who have not been convicted (onveroordeelden) should not be subjected to any limitations other than those which are strictly necessary for the purpose of their detention or in the interest of maintaining order.
It also involves a contravention of Article 26bis, second paragraph, which contains rules relating to the regime. As has recently been found by members of the Lower House of Parliament, the prison system on Curaçao quite fails to live up to reasonable minimum requirements and no improvement is to be expected in the coming few years.
In any event, the applicant (betrokkene) is entitled by virtue of Article 13 of the Convention to an effective remedy before a national authority before deportation to the Curaçao prison system takes place.
It is on these grounds that I ask you to deprive the decision of the Public Prosecutor of its force and give (or delegate to) her the order not to allow the deportation of my client to Curaçao to proceed, or to interrupt it immediately, or reverse his deportation, and/or to order every measure that would result in enabling my client to undergo his detention on remand here, in accordance with the provisions of the Charter for the Kingdom of the Netherlands and the legislation applicable here.
I request the Public Prosecutor, to whom I am also sending a copy of this message, to delay the execution of the decision until the Minister of Justice has decided on this request.
Finally, I am sending a copy of this message to the standing parliamentary committee for information.”
The public prosecutor replied by a letter dated 25 January 1999 (the following Monday), transmitted to the applicant's lawyer by fax at 1.03 p.m., in the following terms:
“Referring to your telefax message of 22 January last, which was received at my department at 8.02 p.m., requesting a delay of the transportation of your client Narcisio to Curaçao until the Minister of Justice had reacted to your request, I can inform you as follows.
Having consulted the Ministry of Justice and the department of the Procurator General to the Court of Appeal (Parket-Generaal), I have decided that there is no call to delay your client's transportation. The reason for this lies in the circumstance that an indication from the Minister for transportation to be delayed has not been received at my department.”
The applicant was flown to Curaçao the same day on a flight scheduled for 2.05 p.m.
The applicant states that he spent the first twenty-three days after his arrival on Curaçao in a police cell. He was then taken to Koraal Specht prison, where he has remained ever since.
The applicant wrote to his lawyer on 24 June 1999. He stated that as of that date, he was deprived of the most basic necessities, such as access to running water and proper sanitary facilities. He also stated that there was a structural lack of furniture for the prisoners. Finally, he stated that he was not able to contact his family from Koraal Specht because there was no access to a telephone that worked.
Delegations of the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (the CPT) visited the Netherlands Antilles in 1994, 1997, 1999 and 2002. On each occasion it inspected, in addition to other establishments, Koraal Specht prison.
In their report of the visit made from 26 to 30 June 1994 (CPT/Inf (96) 1, published on 18 January 1996), the CPT delegation noted “a pernicious combination of overcrowding, a regime which offered very few activities and a poor level of cleanliness and hygiene”, compounded by “the generally run-down state of the establishment”. Specific problems noted included an insufficiency of the quality and quantity of food, problems with the water supply, insufficiently trained prison staff and a lack of sufficient medical care. In their opinion, to subject prisoners to such conditions of detention amounted to inhuman and degrading treatment.
The second visit of a CPT delegation to the Netherlands Antilles took place from 7 to 11 December 1997. The report of this visit (CPT/Inf (98) 17) was published on 10 December 1998. It mentioned the frequent incidence in Koraal Specht of acts of violence against prisoners, committed not only by prison staff, but also by other prisoners, which staff did not do enough to prevent. Despite attempts by the authorities to alleviate the situation, including improvements in the food supply, conditions were still insanitary and overcrowding remained a serious problem. In the CPT's opinion, “many inmates at Koraal Specht Prison continued to be held under conditions which could fairly be described as inhuman and degrading”.
The third visit of a CPT delegation to the Netherlands Antilles, from 25 to 29 January 1999, took place shortly before the applicant's arrival in Koraal Specht. The report of this visit was published on 25 May 2000 (document CPT/Inf/2000-9). It contains the following in relation to Koraal Specht (emphasis in the original):
“A. Situation at Koraal Specht Prison
1. Preliminary remarks
8. As compared to the situation found in December 1997, the CPT's delegation observed some improvement at Koraal Specht Prison as regards certain aspects of the material conditions of detention, attributable in great measure to the decrease in the total number of persons held in the establishment. On the first day of the visit, the establishment was accommodating 434 inmates, all categories included; in December 1997, it had accommodated some 550 persons.
Not unrelated to this, the general atmosphere had improved, and some – albeit very limited – improvements had been made as regards the provision of activities (work, education, sport) for prisoners. Moreover, reports of ill-treatment of inmates by staff had apparently declined of late.
9. Nevertheless, Koraal Specht Prison still suffers from a number of serious shortcomings which pose a threat to the basic rights of prisoners (including the right to life and to physical integrity) and put at risk the stability of the institution to the detriment of both prisoners and staff.
2. Ill-treatment
10. Reported cases of ill-treatment by prison staff had apparently diminished in the months prior to the visit. However, a new phenomenon had appeared in the meantime, namely ill-treatment of prisoners by police personnel (be it the riot police or the voluntary corps of Curaçao – VKC) called upon to perform duties which are properly those of prison officers. Further, inter-prisoner violence continues to be of much concern.
According to statistics produced by the prison's doctors, between January and June 1998, 17 cases of violence were recorded in the prison: 3 apparently involved alleged ill-treatment of inmates by staff and 14 of inter-prisoner violence. In addition, one inmate was beaten to death by fellow prisoners during that period (on the night of 26 February 1998, when prisoners were supposed to have been locked in their cells).
Further, as had been the case in 1997, health care staff insisted that many cases of violence go unreported and it would appear that efforts to keep a precise record of cases of violence waned during the second half of 1998.
11. The delegation was particularly concerned to hear of an incident which occurred on 14 July 1998, where all the information gathered suggests that police officers beat prisoners who had already been brought under control: the prisoners were apparently naked and handcuffed behind their backs. The delegation was all the more concerned by the fact that the matter had not immediately been reported by prison staff present to their own hierarchical superiors (the director of Koraal Specht Prison) nor to the Landsrecherche [i.e. the criminal investigation department of the Netherlands Antilles]. More than half a year later, investigations into the conduct of the police officers involved and the prison officers who failed to discharge their duty to protect the prisoners under their care were still at an embryonic stage. Moreover, it appeared that those very police officers continued to be deployed in the prison.
Further, the delegation interviewed two prisoners who alleged that - while the delegation was in the prison - they had been struck by VKC officers using batons. It would appear that in one of those cases, the prisoner concerned, instead of following instructions to return to his cell, tried to explain that he had been called to the visiting facilities; the account given by him was corroborated by a prison officer who also received a baton blow, apparently when he intervened to protect the prisoner in question.
12. As for inter-prisoner violence, in addition to the prisoner killed in February 1998, a further two prisoners died and several required hospital treatment in late December 1998, apparently following the ingestion of a poisoned beverage prepared by fellow inmates.
Other forms of inter-prisoner violence – including, according to staff and management, rape – continue to be commonplace at Koraal Specht Prison. By way of example, between 11 and 28 January 1999, health care staff had treated five prisoners for injuries apparently resulting from inter-prisoner violence, the last two cases during the delegation's stay in Curaçao.
13. Clearly, a great deal still needs to be done to tackle the problem of violence at Koraal Specht Prison.
In the report on the December 1997 visit, the CPT recommended that immediate steps be taken to draw up a comprehensive strategy to combat violence in all its forms at Koraal Specht, and that this strategy be vigorously implemented without delay. It also indicated that this should involve a review of the tasks of the prison's Mobiele Eenheid and the methods used by its members in the performance of their duties, and that interventions by that riot squad should be reduced to a minimum. In order to permit this, prison officers as a whole should have received training in the handling of violent incidents.
The prison's riot squad had been disbanded in December 1997 and, in its place, police officers had been deployed to take over what are essentially prison officers duties. In the meantime, prison officers had received little further training in modern methods of control and restraint.
14. The CPT wishes to stress that the use of police officers or other law enforcement officials instead of prison officers in order to perform ordinary tasks within a prison inevitably leads to high risk situations. This danger is compounded when the police uniform does not permit the identification of individual officers, which was the case at the time of the visit.
15. Nevertheless, the CPT has noted that certain measures have been adopted which can contribute (and would appear to have already contributed) to the decrease and ultimately to the prevention of ill-treatment of prisoners by staff.
By a Decree of 2 November 1998, an independent Commission was established (the Kleinmoedig Commission) to guarantee the integrity of persons deprived of their liberty and to investigate any abuse which might occur. The Commission has itself set out the measures that are to be taken in case of alleged ill-treatment, which include: immediately notifying the President of the Commission of any such allegations; promptly interviewing the person making the allegations and other relevant persons; a thorough medical examination of the person concerned by the prison doctor, who is required to note the allegations and make a detailed record of any injuries and conditions observed; taking, in appropriate cases, photographs of the relevant parts of the body of the person making the allegations; referral to hospital for more detailed examinations; the requirement that a record be made of the doctors' conclusions in the light of the allegations and medical findings. Further, the members of the Commission seem to be making themselves visible to prisoners and to staff, and accessible to them. In addition, inquiries have been initiated into certain of the incidents which have occurred in the prison in recent times.
More generally, on 30 November 1998, standing orders were issued (Dienstorder [Service order] GWC No. 010-98) for the reporting of cases of violence. However, this reporting system was apparently not fully operational at the time of the visit, and did not involve the recording of relevant information in appropriate central registers (e.g. in the health care service and the office of the director).
16. In the context of inter-prisoner violence, some steps have been taken to address the question of the appropriate classification and distribution of inmates, e.g. through the development of a department of detainees' affairs, and further measures are envisaged. More particularly, a 28-place reinforced security unit (EBA) has been established in Koraal Specht Prison; at the time of the visit, this unit was being used to accommodate on a temporary basis prisoners suspected of having abused or assaulted fellow inmates or staff.
3. Staff and management issues
17. In the report on the December 1997 visit, the CPT indicated that the deplorable conditions of detention which prevailed at Koraal Specht Prison were certainly an important factor in the culture of violence in the establishment. However, it stressed that the problem of violence also stemmed in large part from shortcomings as regards staff and management. In paragraph 17 of that report, the CPT stated that:
“The fundamental requirement is to ensure that prison officers are placed in a position to exercise their authority in an appropriate manner.
Prison officers will not be able to carry out their duties satisfactorily if they fear for their own safety. In such a situation, staff are likely to be prone to abuse or ill-treat prisoners in their charge; moreover, they will be poorly placed to protect prisoners from violence from other inmates. Consequently, the level of staffing must be sufficient to enable prison officers effectively to support each other in the exercise of their supervisory tasks.
Adequate staffing levels must be accompanied by a clear message to prison officers that the ill-treatment of prisoners is unacceptable and will be severely punished. Further, if complaints of ill-treatment by staff do emerge, the prison's management and other relevant authorities must take swift and effective action to address them. More generally, it should be underlined that ready access to an efficient complaints system, preferably with an independent element, is crucial to ensure the maintenance of good order in prison.
Tackling the phenomenon of inter-prisoner violence requires of a prison's staff that it be alert to signs of trouble and both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.”
18. However, at the time of the January 1999 visit, the problem of unauthorised staff absences continued to be acute at Koraal Specht Prison. The very high incidence of staff absenteeism resulted in levels of prison officer presence on the wings being considerably lower than necessary for the proper and safe functioning of the establishment. This problem was compounded by what appeared to be a large number of staff deployed in the administration building or employed in duties that kept them quite apart from inmates. The overall morale and confidence of prison officers continued to be low, demotivation being enhanced by a number of factors, not least by the continued deployment of police personnel to perform prison officer duties.
In this connection, the CPT has noted that the measures so far adopted to address the problem of absenteeism have failed and that no target date has been set for strengthening the enforcement of those measures; further, it would appear that, at the time of the visit, no alternative policy was being considered.
19. Recruitment efforts in the recent past had served to make up for staff departures, without a significant increase in staffing levels. Nonetheless, the CPT has noted with interest that it is now envisaged to recruit between 25 and 50 additional staff for Koraal Specht Prison.
20. In paragraph 17 of the report on the 1997 visit, the Committee also stressed that:
'If prison officers as a whole receive training in the handling of violent incidents, it should be possible to reduce to a minimum interventions by a “riot squad”. Certainly, such a squad should not be routinely involved in such operations as the counting of prisoners and searches. Further, any such squad should be suitably trained and equipped; it should be resolutely committed to using the minimum degree of force necessary through recourse to modern intervention techniques. Such techniques do not include meeting violence with violence.'
21. Further, any achievements will be short-lived if Koraal Specht Prison is not provided with appropriate management. This question has already been addressed in the previous visit reports. In paragraph 15 of the report on the 1997 visit, the CPT indicated that:
'Only a governor, possessing the necessary authority, competence and experience and supported by a closely-knit team, would be in a position to instil the right tone and atmosphere into the establishment and be sufficiently motivated to develop policies and plans for the future. In the absence of real management, the establishment will tend to drift. Such an environment is a propitious one for the growth of undesirable practices.'
In that report, the Committee reiterated the recommendation that the Netherlands Antilles authorities provide the prison with a management team possessing the above-mentioned qualities.
22. The appointment of a specific Location Director (Lokatiedirekteur) for Koraal Specht Prison is a positive development. However, the potential benefits of such a measure have been curtailed by a number of factors: insufficient experience of the Location Director on prison matters; temporary nature of the appointment (for six-month periods); apparent absence of suitably equipped and structured middle management; lack of powers and resources required effectively to manage the prison; insufficient support and guidance from hierarchical superiors. The CPT wishes to add that in the past the recruitment process has not always been successful in identifying the right persons for senior posts.
By contrast, the CPT has noted that the Kleinmoedig Commission has apparently been given the necessary authority (and means) to address urgent problems, something which the prison's management at both local and central level has, for different reasons, not been capable of doing in the past. That is, in itself, an indictment of the prisons' management at the most senior level.
23. As regards more particularly middle management, it should be rendered effective through careful selection and suitable training. Further, the current arrangements concerning middle management at Koraal Specht Prison need to be reviewed and, possibly, reorganised. Precise job descriptions should exist for each post, setting out clearly the areas of responsibility, powers and accountability arrangements. Suitable middle management would relieve the Director of part of his current functions, permitting him visibly to be involved with staff and prisoners on a regular basis, and to participate in drawing-up longer term plans and strategy for the establishment.
24. Staff organisational structure at other levels also requires attention. On the one hand, the nature of the work involved in the case of certain posts should be clarified (and perhaps some officers re-deployed to other functions). On the other hand, the current system of promotion by length of service will not encourage good performance and does not, at present, seem to imply any extra responsibility. It is clear that this promotion system will not serve to identify suitable candidates for posts involving additional responsibility, e.g. to lead teams of officers working in specific accommodation units or involved in the different areas serviced by prison staff (workshops, education, sport, visits and escorts).
4. Conditions of detention
25. The CPT has noted and welcomes the efforts made to improve the material environment at Koraal Specht Prison. In the course of the visit, the delegation observed that the premises had been freshly painted; work had been done to keep the prison in a better state of repair than that observed at the time of the previous visits; efforts had been made to improve the provision of water and the sanitation in the detention areas; and work continued as the Committee visited the prison.
These factors have led to improved conditions of detention at Koraal Specht Prison. As already indicated, much of that improvement is due to the decrease in the number of persons being held in the prison, a reduction of about 20% as compared to the establishment's population in 1994 and 1997.
26. Notwithstanding this, the prison continued to suffer some degree of overcrowding. By way of example, certain cells regarded by the CPT as being suitable for accommodating half a dozen persons were holding between 8 and 10 inmates, and cells which should ideally accommodate one or, at most, two inmates were being used to hold up to three prisoners.
Consequently, efforts should continue to be made to bring the occupancy levels of prisoner accommodation into line with the criteria expressed by the CPT in paragraph 95 of the report on the CPT's 1994 visit.
In this context, the CPT welcomes that the current plans for the expansion of the prison provide for an adequate amount of cell space per prisoner. Indeed, the delegation was told that some 288 new cells, designed to accommodate one prisoner each, will be built; this will allow existing cell occupancy levels to be reduced markedly. Moreover, following its expansion, the prison's capacity will apparently be calculated on the basis of some 7 m² of cell space per prisoner held in collective accommodation.
However, the CPT is far from convinced that providing additional accommodation will alone offer a lasting solution to overcrowding. Additional measures, including at a statutory level, may well be required to limit or modulate the number of persons being sent to prison.
27. Even the present level of occupation would permit further improvements to be made in the short-term. This should involve, in particular, a more developed regime of activities for all prisoners, placing special emphasis on those serving longer sentences. Prisoners should be offered a variety of constructive activities involving a significant part of the day. As already indicated, as compared to the situation observed in the course of previous visits, some improvements had been made as regards the provision of activities to prisoners; in particular, the sports hall had been brought back into service, some prisoners were offered work in the workshops and in the prison's services and, on occasion, educational activities were organised. Nevertheless, as regards the vast majority of prisoners, not even the modest target of six hours of activities per week was being met.
In order to succeed in developing prisoners' regime, the active participation of the relevant staff will be required, and the necessary facilities should be provided. In this connection, the delegation was told that funds have been made available by the Netherlands authorities to develop the regime for prisoners, and provision is also made for prisoners' activities in the prison's own budget. Apparently, these funds have not been fully utilised. More generally, it would appear that the total budget for Koraal Specht Prison for the last two years has been considerably underspent. This reflects badly on the prison service management, particularly if regard is had to the prevailing situation at Koraal Specht Prison. Furthermore, the delegation heard allegations that some officers did not facilitate the attendance of inmates at the courses which were organised.
28. Priority must continue to be accorded to providing prisoners with the most basic necessities, such as adequate access to running water and to proper sanitary facilities (a matter which is long overdue), and with a hygienic environment. Further, there can be no justification for failing, for whatever reason, to provide them with adequate food at regular times and ready access to drinking water. Problems in these areas persist at Koraal Specht Prison. In addition, all prisoners should be supplied with a bed and bedding.
In this latter respect, certain prisoners interviewed complained that they had not received a mattress. The delegation was subsequently told that there was a shortage of mattresses, despite the fact that the budgetary means were available.
29. As for the question of buildings, this may be thought the most straightforward way of resolving Koraal Specht's problems. However, new buildings do not necessarily produce new attitudes. Motivated and well trained staff and prisoners who are kept occupied can tolerate poor buildings, at least for some time. In respect of construction efforts, since new buildings are likely to be used for a long time and involve a significant investment, efforts should be made to get them right at the outset. Provided that: first, the current level of occupation in the prison's accommodation facilities is not surpassed (preferably reduced further to comply fully with the criteria set out in paragraph 95 of the 1994 visit report); secondly, the basic needs of prisoners are satisfied; and thirdly, the programme of activities is developed somewhat, the Netherlands authorities will have the time required to ensure that efforts and financial resources are not wasted, and that new buildings adequately meet the current and future needs of Curaçao's prison system.
However, the time at their disposal will not be unlimited and it is crucial that the planning process maximises the opportunity available to those authorities. To be fully effective, this process requires a combined effort by all relevant parties (planners, management, staff), a guarantee that finance is available, a team retained and committed to work until the completion of the project, an efficient procedure for considering the plan and responding to it, and an agreed realistic timetable for its implementation with strict monitoring of compliance.
30. The plans for the improvement of conditions at Koraal Specht Prison and for the expansion of its facilities were well advanced and seemed adequate. However, those responsible for the plans appeared not always to have a full understanding of what other people involved in the process were doing. Similarly, the system for securing final decisions on aspects of the plans and overall approval was not immediately clear. Thus, for example, it was very difficult to establish clear timeframes for the implementation of the plans which were being developed.
31. As already indicated, the Kleinmoedig Commission has been given the authority and the means to address urgent problems. This possibility is to be welcomed, not least because it is the first sign seen by the CPT that good intentions might in effect be translated into real action leading to the bettering of conditions of detention and the treatment of persons deprived of their liberty. However, this effective trouble shooting should not cloud the need to develop a coherent strategy. The development of longer-term plans to address the underlying issues at Koraal Specht should not be overlooked.
...
5. Health care services
34. At the time of the visit, the health care team at Koraal Specht Prison had not been reinforced as compared to the position in December 1997. In fact, the situation had worsened given the temporary absence of one of the nurses. This resulted in a very heavy workload and responsibility for the only nurse currently working full-time at the prison. Further, medical screening on reception and access to a doctor in non-emergency situations continued to suffer significant delays. As had been the case during previous visits, the delegation received many complaints from prisoners as regards the provision of health care. Moreover, the shortcomings concerning dental care had not yet been resolved.
Nonetheless, the delegation was led to believe that certain changes in the above respects were imminent, inter alia by the employment of four additional full-time nurses and a doctor. These developments concerning staff should permit the implementation of at least certain of the recommendations made by the CPT in previous reports concerning the health care service at Koraal Specht Prison.
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B. Further measures required and proposed timetable
36. Controlling overcrowding will be a crucial factor in improving the treatment of persons held in Koraal Specht Prison, and has a bearing on all aspects of life in the prison. Consequently, the current level of occupation in Koraal Specht Prison must not be surpassed and, preferably, additional measures (including at a statutory level) should be taken to reduce further the number of persons held in the prison. The objective should be to ensure that the inmate population is kept at an acceptable level pending the implementation of the improvement and expansion plans.
37. The reporting system for cases of violence should be rendered effective without delay. This should be accompanied by the introduction of central registers containing relevant information to be kept in the health care service and the office of the director.
Similarly, the procedure laid down by the Kleinmoedig Commission for the investigation of allegations of ill-treatment should be made fully effective in practice.
...
43. Means should be made available as of now to ensure that the basic needs of prisoners are satisfied (e.g. prisoners should be guaranteed food at appropriate times and ready access to drinking water, and they should be supplied with a bed and bedding), and that all of them are offered at least one hour of outdoor exercise every day.
Further, efforts should be redoubled to ensure that prisoners are accommodated in a hygienic environment, and have suitable access to proper sanitary facilities and running water. The CPT has noted that progress has been made in this regard and understands that the water supply problem should have been resolved within the three weeks following the visit. The Committee would appreciate receiving confirmation that this task has been successfully completed.
Further, an ongoing maintenance programme should be elaborated without delay and the resources made available to ensure that repair work is carried out as and when it becomes necessary.
...
46. Reinforcement of the health care team is long overdue. The CPT understands that although three candidates for nursing posts had been identified, at the time of the visit no concrete date had been fixed for them to commence employment. The CPT would like to receive further information on this subject. As regards increasing doctors' presence in the establishment, it looks forward to receiving confirmation of the employment of an additional doctor and information about the actual time the doctor is present in the prison.”
By a letter dated 13 August 1999, the Permanent Representative of the Kingdom of the Netherlands to the Council of Europe transmitted to the president of CPT the response of the Government of the Netherlands Antilles. Dated July 1999, this described, in relevant part, various measures aimed at improving the situation in Koraal Specht. These included, inter alia, changes in the composition of the riot team and the way it operated, improved investigation of violent incidents, improvements in the motivation and training of prison staff and an increase of their number; improved activity and work programmes; improvements in food supply; and the provision to the prisoners of clean running water. The number of medical staff had been increased in accordance with CPT recommendations. The number of prisoners allowed had been set at a maximum. Some of these improvements, such as the recruiting and training of new staff, had already begun to be implemented at the time of CPT's visit.
A CPT delegation carried out a visit to the Netherlands Antilles from 17 to 27 February 2002. They noted significant improvements in the material living conditions at Koraal Specht (which by this time had been renamed Bon Futuro); in particular, extensive renovation and construction had taken place and the severe overcrowding problem had been brought to an end. A new water supply system had been installed, as had new public telephones. Medical care had improved; so had the sanitary situation, although cockroaches and rats were still a problem in some parts of the prison. There was still a shortage of proper beds and bedding, although not to the same degree. Violent incidents involving prison staff were no longer stated to be a problem. However, inter-prisoner violence appeared to have continued as a result of prison staff, who were still insufficient in number, stepping back from awkward situations, thereby effectively abandoning control to inmates: a stabbing incident actually took place during the visit of the CPT delegation. (See the CPT's report of 15 November 2002, CPT/Inf(2002)30.)
“Netherlands, the Netherlands Antilles and Aruba,
Noting that the Netherlands, Suriname and the Netherlands Antilles declared of their own free will in 1954 that they wished to receive a new legal order in which they take care of their own interests independently and take care of their common interests and provide mutual assistance on an equal footing, and have decided jointly to draw up the Charter for the Kingdom;
Noting that the bond under this Charter with Suriname has been terminated with effect from 25 November 1975 ...;
Noting that Aruba has declared of its own free will that it accepts this legal order as a country;
Have decided jointly further to determine the Charter for the Kingdom as follows.”
“The Netherlands, the Netherlands Antilles and Aruba shall give each other aid and support.”
“Judgments given by a court in the Netherlands, the Netherlands Antilles or Aruba, judicial orders and executory copies of official documents (grossen van authentieke akten) drawn up there can be executed throughout the Kingdom, with due regard to the legal provisions of the country where execution takes place.”
“1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their own affairs independently.
2. The affairs of the Kingdom shall also concern the countries.”
In relevant part, Article 59a of the Code of Criminal Procedure (Wetboek van Strafvordering) of the Netherlands provides as follows:
“...
4. At the time of his interrogation [by the investigating judge], the accused may request the investigating judge to release him [from police custody].
5. If the investigating judge considers the police custody unlawful, he shall order the accused's immediate release. Otherwise, the investigating judge shall make a note of his decision in the official record of the interrogation or, if the suspect has made a request for his release, the investigating judge shall reject it. ...”
At the time of the applicant's transfer to Curaçao (January 1999), Article 289 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) of the Netherlands provided, in relevant part:
“1. In all cases where, considering the interests of the parties to the case, an immediate provisional measure is needed as a matter of urgency, the case can be brought at a hearing which shall be held by the President [of the Regional Court] on the working days to be determined by him.
2. In case of circumstances requiring even greater speed, the summons can be ordered for the day and the hour, including the Sunday, to be determined in each case by the President [of the Regional Court] on oral application by the interested party. He can then also order that the hearing shall be held in his home. ...”
At the relevant time, section 5 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) of the Netherlands provided as follows:
“The officers (ambtenaren) of the public prosecution service (openbaar ministerie) shall obey the orders given them in their official capacity by the competent powers in the name of the Monarch.”
The Government have drawn the Court's attention to a judgment given in summary proceedings under the present Article 254 of the Code of Civil Procedure (which since 1 January 2002 replaces the former Article 289) by the Provisional Measures Judge (Voorzieningenrechter) of the Regional Court of The Hague – the successor, as regards summary civil proceedings, to the President of the Regional Court – on 26 November 2002 (case number KG 02/1439). That judgment contains the following reasoning (emphasis in the original):
“3.1. The question before us is whether the State commits a tort against the plaintiff, taking into account his state of health, by executing the order for his initial detention on remand (bewaring) and co-operating in his transfer to the Netherlands Antilles, there to be placed in detention on remand (voorlopige hechtenis).
...
3.3. The Provisional Measures Judge will proceed on the following basis. The initial detention on remand order (...) given by the [Curaçao] investigating judge cannot be called into question (in summary proceedings), since there is no legal remedy against such an order. The plaintiff can therefore be taken into detention on remand in a remand centre, in the present case the Bon Futuro prison. To that extent the State is therefore obliged, in view of Articles 36 and 40 of the Charter for the Kingdom of the Netherlands, to co-operate in the plaintiff's transfer to the Netherlands Antilles there to undergo detention on remand.
3.4. It is established that the plaintiff has not been interrogated within the framework of his being brought before the [Curaçao] investigating judge and the order for his initial detention on remand because of the physical distance. However, when being thus interrogated a suspect has the possibility to request the suspension of his detention on remand, for example on the ground that his state of health does not admit of his detention.
In our provisional opinion the plaintiff has sufficiently made out a prima facie case that his transfer to the Netherlands Antilles – considering also Article 3 of the European Convention on Human Rights – constitutes a tort. It is noted in this connection, in the first place, that the sole fact that the plaintiff would be detained in the Bon Futuro prison does not entail the risk of treatment as referred to in Article 3 of the Convention. Nor does the fact that transfer to the Netherlands Antilles for detention is generally stressful so entail. However, the applicant has made out a sufficient prima facie case that special circumstances concerning him particularly imply that his transfer (tomorrow afternoon) to the Netherlands Antilles constitutes a tort. The plaintiff is a cardiac patient and it appears from two medical statements, including one by the cardiologist who is treating him, that if the plaintiff will run a life-threatening risk to his health – not only because of the stress caused by the said transfer [itself] and the stay in the Bon Futuro prison but also because of the climatic conditions – should he be transferred to the Netherlands Antilles. The foregoing is all the more persuasive given that it appears from the CPT report of February 2002 which has been submitted that the medical provisions in the Bon Futuro prison may have improved but still fall short of desirable standards. In view of this life-threatening health risk, this involves, for the plaintiff, a risk of treatment that, for him, would be inhuman.
Since, at this time, there is reasonable (medical) doubt as to whether [the plaintiff's] state of health permits the applicant's transfer tomorrow afternoon to the Netherlands Antilles to be placed in detention on remand there (in the Bon Futuro prison) and [he] thereby runs the risk of being subjected to what, for him, would amount to inhuman treatment, since it concerns, in the present case, a life-threatening health situation, the State's co-operation in transferring the plaintiff to the Netherlands Antilles now constitutes a tort. ...
3.5. The Provisional Measures Judge considers it important to note in this connection that the initial detention on remand order has not lost its force by reason of this order for a provisional measure in summary proceedings (that is, for the time being, no transfer to the Netherlands Antilles), [nor does this order imply] a suspension of detention on remand. ...”


ITEMID: 001-108875
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CASE OF CIUBUC AND OTHERS v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicants, Mr Gheorghe Ciubuc, Petru Ciubuc and Victor Lipovoi, are Moldovan nationals who were born in 1958, 1953 and 1946 respectively and live in Chişinău. They were represented before the Court by Mr F. Nagacevschi from “Lawyers for Human Rights”, a non-governmental organisation based in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1942 A. Lipovoi, the mother of one of the applicants, bought part of a house in Chişinău, together with the land surrounding it (2.5 hectares). On 19 June 1950 the Soviet State nationalised most of the land, leaving 17.02 acres of land adjacent to the house for the family’s use, which has been used accordingly ever since. The applicants eventually became coowners of the house, which is currently registered in their name.
4. On 19 March 1973 the Government decided to create a dendrology park named “Dendrarium” and allocated 69 hectares of land in Chişinău for that purpose (“the 1973 decision”). The land included, inter alia, twenty-one private houses standing on it. According to the decision, the inhabitants of those houses were to be allocated alternative accommodation and the houses were to be demolished. The developer of the park was also obliged to pay the families living in those twenty-one houses compensation for any orchards and for the work carried out on the plots of land to be expropriated.
5. By a decision of 14 November 1978 the Government decided that the Dendrarium park was to become a separate institution managed by the Chişinău local authority. It also ordered the local authorities in Chişinău to offer the inhabitants of the houses concerned by the earlier decision alternative accommodation and to demolish their houses, situated on the reserved territory, in 1979-1980. The Government also decided to prohibit any private construction works within the boundaries of the Dendrarium park and to ensure the strict enforcement of the protective park regulations. However, the applicants and several other families were not offered alternative accommodation and have remained in their houses.
6. On 23 May 1990 the Chişinău local authority decided to allocate to the State Theatre-Park of National Culture 74.4 hectares of land, including the land on which the applicants’ house was situated. It also decided that the people living in the houses to be demolished, which included the applicants, were to be offered alternative accommodation.
7. On 14 July 2000 the State was registered as the owner of the territory of the Dendrarium park, which included the land under and adjacent to the applicants’ house. On 8 July 2005 the Chişinău municipality was registered as the owner of that land. According to the local cadastral office, the land adjacent to the applicants’ house is registered in the applicants’ name. According to an excerpt from the Land Register (cadastru), provided to the applicants on 11 April 2005, the house in question is situated on 17.02 acres of land and is owned by the applicants.
8. On 31 October 2005 the applicants asked the Chişinău municipality to transfer the land adjacent to their house into their ownership free of charge (as part of the process of privatisation). On 18 January 2006 the municipality rejected the applicants’ request.
9. On an unspecified date the applicants lodged a court action in which they claimed the right to become the owners of the land adjacent to their house, in accordance with article 11 of the Land Code (see paragraph 15 below). They noted, inter alia, that no specific decision had been taken to expropriate the land which their family had owned since 1942 and that this was an ongoing problem which the authorities had allowed considerable delay in examining, causing the applicants non-pecuniary damage. The applicant asked the court to order the Chişinău municipality to register the land adjacent to their house in their name and to award them compensation for the non-pecuniary damage incurred.
10. In its written reply submitted to the court, the Dendrarium park administration noted, inter alia, that the applicants did not have access to their house and that to reach it they had to trespass on park property.
11. On 23 October 2006 the Chişinău Court of Appeal found in the applicants’ favour. It found, inter alia, that the applicants’ use and possession of the disputed land had been undisturbed since 1942. The Court also found that the applicants had become the owners of the disputed land before the creation of the Dendrarium park and that no decision for the withdrawal of the applicants’ land from their possession had been adopted.
12. On 24 January 2007 the Supreme Court of Justice quashed the lower court’s judgment and adopted a new one, rejecting the applicants’ claims as unfounded. The court found that the applicants’ house had been registered as their property by the Land Registry. However, the land on which the applicants’ house was situated had been set aside for the creation of a natural reserve since 1973. Under the legislation concerning natural reserves (including Article 7 of the Law on the State-protected natural areas fund, see paragraph 15 below) such land was considered to be public property which could not be privatised, rented out or disposed of in any other way except for in the purposes of preserving and managing the natural reserve. Under the 1973 decision the inhabitants of all the houses within the perimeter of the park, including those in the house owned by the applicants, had to be removed and offered alternative accommodation and their houses demolished. Therefore, their request to obtain ownership of the land adjacent to their house was contrary to legal requirements.
13. On 6 June 2007 the Supreme Court of Justice rejected the applicants’ request for the reopening of the proceedings, which had been grounded on the discovery that some of the applicants’ neighbours who were in a similar situation to that of the applicants had obtained private ownership of the land adjacent to their houses. The court found, inter alia, that the document submitted by the applicants in support of their request had not been numbered or dated and did not therefore constitute a valid document.
14. On 11 February 2008 the Chişinău municipality informed the applicants that at the time of writing that letter the boundaries of the Dendrarium park had not yet been determined and that no title to the land of that park had been issued. The applicants were also informed that the municipality’s competent department was preparing proposals to re-examine the boundaries of the Dendrarium park, including the possibility of excluding the plot of land adjacent to the applicants’ house from the reserved land and the creation of an access road to their house.
15. The relevant part of Article 11 of the Land Code (in force since 4 September 2001) reads as follows:
“Article 11. Allocation of land within the city limits for housing, land annexes and gardens.
Local public administration authorities shall allocate plots of land to citizens without payment, issuing them ownership certificates which:
- transfer into the property of citizens plots of land occupied by houses, annexes and gardens which have been allocated to [those citizens] in accordance with the law; ...
Article 56. Land reserved for protecting nature.
Land reserved for protecting nature includes ..., dendrology parks, ...
...
Land reserved for protecting nature is the exclusive property of the State.
Any activity which is incompatible with the special destination of land reserved for protecting nature shall be prohibited. Such land is withdrawn from use, if such use does not correspond to the special protection regime established for such land.”
The relevant part of Article 7 of the Law on the State-protected natural areas fund (no. 1538, in force since 16 July 1998) reads as follows:
“Article 7.
...
2. Land which is part of entities or complexes within protected natural areas shall be reserved for protecting nature, shall be public property and may not be privatised or rented; the protection and management of such land shall be governed by the applicable legislation.”


ITEMID: 001-85232
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SARKOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Ms Anděla Šárková, is a Czech national who was born in 1949 and lives in Praha. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant fell ill with chronic hepatitis, which was classified as an occupational illness in June 1986.
On 9 March 1987 the applicant lodged a civil action with the Brno Municipal Court (městský soud) against her former employer seeking compensation for her diminished social capacity, and loss of income and earning capacity. Subsequently, she included claims for a contribution to her for dietary nutrition and for additional damages.
On 14 October 1992 the Municipal Court received an expert opinion.
In a judgment of 29 March 1995 it partly granted the applicant’s action.
On 14 September 1995 the Brno Regional Court (krajský soud) partly modified this judgment, in that it dismissed the applicant’s request for an increase of her diminished social capacity and related default interest, stating that the applicant’s health had improved, so that it did not warrant the requested increase. It quashed the remaining part of the judgment and remitted it to the Municipal Court for further consideration.
On 11 September 1997 the Supreme Court (Nejvyšší soud) dismissed the applicant’s appeal on points of law (dovolání).
On 26 November 1997 the Municipal Court found the expert’s opinion invalid, as there was no record about the expert’s appointment included in the case-file. On 2 December 1997 it appointed a new expert.
On 16 September 1998 the Municipal Court held a hearing, at which the expert presented his opinion. The applicant objected to mistakes in the opinion.
On 25 November 1998 the Supreme Court dismissed the applicant’s request to transfer her case to the Prague 3 District Court (okresní soud).
In a judgment of 13 October 1999 the Municipal Court partly granted the applicant’s action. It stated that the expert had remedied the mistakes and that, in any event, these mistakes had not affected his credibility.
On 8 February 2000 the Municipal Court received the defendant’s supplement to its appeal. The applicant alleged that on 1 February 2000 the court had warned the defendant about the expiration of the time-limit.
On 7 September 2004 the Regional Court held a hearing, attended by the applicant’s lawyer. It dismissed the defendant’s appeal and ordered it to pay the costs of the proceedings into the account of the applicant’s lawyer. On 6 October 2004 this judgment became effective.
According to the applicant, the Regional Court did not invite her to the hearing of 7 September 2004 and sent the final judgment only to her lawyer, who failed to inform her about the progress of the proceedings and about their outcome.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-68654
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KOKOL AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. In 1991, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a State body responsible, inter alia, for motorway construction, expropriated four plots of land belonging to the applicants in Ankara in order to build the Ankara Central Motorway. A committee of experts assessed the value of the land and the sum so fixed was paid to them when the expropriation took place.
5. Following the applicants' requests for increased compensation, on 2 February 1995 the Ankara Civil Court of First Instance awarded them additional compensation of 2,752,155,000 Turkish liras (TRL) (approximately 7,483 euros (EUR)), plus interest at the statutory rate applicable at the date of the court's decisions, running from 1 August 1992.
6. On 22 December 1997 the Court of Cassation upheld the judgment of 2 February 1995.
7. On 19 January 1998 the decision of the Court of Cassation was served on the applicants.
8. On 18 March 1998 the administration paid the applicants TRL 7,614,418,000 (approximately EUR 20,705) in additional compensation together with interest.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25).


ITEMID: 001-104155
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BREZOVEC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of P1-1
JUDGES: Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1941 and lives in Vojnić.
6. In 1980 the applicant became the holder of a specially protected tenancy (stanarsko pravo) of a flat in Vojnić. He lived in the flat with his family until 1 October 1991 when Vojnić was occupied. He then fled the occupying forces and went to live in Karlovac.
7. The applicant found a job in Karlovac and, as an internally displaced person, on 30 January 1992 he was awarded a flat there on a temporary basis. In July 1996 the competent authorities terminated his status as an internally displaced person. Following a civil action by Mr T.M., the applicant was forced to leave the flat in Karlovac on 21 January 1999.
8. The applicant claimed that – following the military operation “Storm” by which Croatia regained control of almost its entire territory in August 1995 – on 8 October 1995 he had visited Vojnić, where he had found the flat in respect of which he had the specially protected tenancy uninhabitable and in a very bad state of repair. This had been confirmed on 4 March 1996 by the findings of the Commission for the Assessment of War Damage. He further submitted that he had immediately commenced rebuilding work on the flat with a view to moving into it.
9. However, on 23 August 1996, while the applicant was working in Karlovac, the local authorities, accompanied by the police, entered into the flat, made a list of personal belongings, changed the locks and gave the keys of the flat to a certain Z.H., a local policeman. Five days later the Commission for Temporary Takeover and Use of Certain Property of the Municipality of Vojnić (Komisija za privremeno preuzimanje i korištenje određene imovine Općine Vojnić – “the Sequestration Commission”) issued a decision letting the flat to Z.H. and his family on a temporary basis.
10. On 20 December 1996 the applicant and his wife made a request for the purchase of the flat to the Municipality of Vojnić. In doing so they relied on the Specially Protected Tenancies (Sale to Occupier) Act, which entitled holders of specially protected tenancies of flats in social or state ownership to purchase their flats under favourable conditions (see paragraph 29 below). They received no reply.
11. On 7 August 1998 the Ministry of Reconstruction and Development (Ministarstvo razvitka i obnove) adopted a decision letting the flat to Z.H. and his family for their use.
12. On 16 October 2000 the Municipality of Vojnić issued a decision allowing the applicant to live in the flat. The applicant has been living in the flat ever since.
13. Meanwhile, on 12 May 2000, the applicant and his wife brought a civil action against the State in the Vojnić Municipal Court (Općinski sud u Vojniću) with a view to obtaining a judgment which would allow them to purchase the flat in accordance with the Specially Protected Tenancies (Sale to Occupier) Act. On 9 January 2001 the court dismissed their action. It found that the applicant's flat was owned by the State and not the Municipality of Vojnić and that therefore the plaintiffs should have directed their request for its purchase to the State and not to the Municipality. Following an appeal by the applicant and his wife, on 26 September 2001 the Karlovac County Court (Županijski sud u Karlovcu) quashed the first-instance judgment and remitted the case. It found, inter alia, that the fact that the plaintiffs had made their request for the purchase of the flat to the Municipality and not the State should not have been held against them.
14. In the resumed proceedings, on 11 September 2003 the Vojnić Municipal Court again dismissed the plaintiffs' action. The court first determined, as a preliminary issue, whether the plaintiffs had retained their specially protected tenancy of the flat in Vojnić, the existence of that tenancy being a statutory precondition for buying the flat under the Sale to Occupier Act. In this respect the court found that: (a) the plaintiffs had left the flat in October 1991 and (b) in the period between 5 August 1995, when Vojnić was liberated, and 23 August 1996, when the flat was awarded to Z.H., they had been living in Karlovac and had only occasionally visited and used the flat in Vojnić. That being so, the court concluded that since they had not used their flat permanently for living purposes, the plaintiffs' specially protected tenancy had been terminated. Consequently, they were not entitled to purchase the flat in question.
15. On 18 February 2004 the Karlovac County Court dismissed the plaintiffs' appeal and upheld the first-instance judgment, which thereby acquired the force of res judicata. Relying on the finding of the first-instance court that the plaintiffs had left the flat in 1991 and had not used it in the period between 5 August 1995 and 23 August 1996, the second-instance court expressly referred to section 2 of the Act on the Lease of Flats on the Liberated Territory (see paragraph 19 below) in holding that the plaintiffs' specially protected tenancy had been terminated ex lege because after the Act's entry into force they had not used their flat for a period longer than ninety days. As a result, they had no right to purchase it.
16. The applicant then lodged a constitutional complaint alleging, inter alia, infringements of his constitutional rights to equality before the law, to property and to a fair hearing.
17. On 29 June 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the constitutional complaint and served its decision on the applicant on 20 July 2006. The relevant part of the Constitutional Court's decision reads as follows:
“The [ordinary] courts established that the flat at issue in Vojnić had on 28 August 1996 been awarded to [Z.H.] for temporary use, and that the plaintiffs had in the period between August 1995 and 28 August 1996 only occasionally visited the flat, which could not be considered use of the flat. The first-instance court therefore dismissed the plaintiff's action in accordance with section 2 of the Act on the Lease of Flats on the Liberated Territory, according to which the specially protected tenancy of flats located in the previously occupied, now liberated, territory of the Republic of Croatia was to be terminated by the operation of law if the holder of the specially protected tenancy left the flat and did not use it for a period exceeding 90 days following the Act's entry into force. The court established that the complainant had not used the flat between August 1995 and 28 August 1996 and that his specially protected tenancy had [therefore] been terminated by the operation of law. Given that his specially protected tenancy had been terminated by the operation of law after 5 January 1996, the complainant could no longer be considered the holder of a specially protected tenancy and therefore was not entitled to make a request for the purchase of the flat.
The County Court found that the first-instance judgment was correct and had been rendered on the basis of correctly and completely established facts and the correct application of the substantive law.
Assessing the arguments raised in the constitutional complaint in the light of Article 14 paragraph 2 of the Constitution, the Constitutional Court has found that the complainant's constitutional right to equality before the law was not breached by the contested judgments.
The legal views expressed in the contested judgments are based on the correct application of the relevant substantive law and on the constitutionally acceptable interpretation of that law. The Constitutional Court finds that the [ordinary] courts, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from the arbitrary interpretation or application of the relevant substantive law.
...
The content of the constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution is limited to procedural guarantees of a fair hearing. Therefore, assessing the arguments raised in the constitutional complaint in the light of that constitutional right, as well as other constitutional rights guaranteed by Article 29 of the Constitution, the Constitutional Court examines possible procedural breaches in the proceedings before the courts and, on that basis and looking at the proceedings as a whole, ascertains whether the proceedings were conducted in a manner which secured a fair hearing to the complainant.
Having examined the contested decisions and the first-instance case file, the Constitutional Court finds that the complainant's constitutional right guaranteed by Article 29 paragraph 1 of the Constitution has not been breached.
As regards the complainant's argument concerning the breach of the constitutional right of ownership guaranteed by Article 48 paragraph 1 of the Constitution, it has to be noted that the Constitutional Court, on the basis of Article 48 of the Constitution, protects the right of ownership at the constitutional level in such a manner that it prevents restriction or taking of that right by the state authorities, unless a restriction or taking is provided for by law.
The Constitutional Court finds that the contested judgments are based on the relevant legislation and are well reasoned, and that the complainant's right of ownership guaranteed by Article 48 of the Constitution has not been breached.”
18. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia, nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“All shall be equal before the law.”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“The right of ownership shall be guaranteed.”
19. The Act on the Lease of Flats on the Liberated Territory (Zakon o davanju u najam stanova na oslobođenom teritoriju, Official Gazette no. 73/95), which was in force between 27 September 1995 and 5 August 1998 provided, in its relevant part, as follows:
Section 1(1)
“This Act regulates the lease of flats of which the specially protected tenancy ... has been terminated pursuant to the provisions of this Act, and which are located in the previously occupied, now liberated, territory of the Republic of Croatia.”
Section 2(1)
“The specially protected tenancy of the flats referred to in section 1 of this Act shall be terminated by the operation of law [i.e. ex lege] if the holder of the specially protected tenancy leaves the flat and does not use it for a period exceeding 90 days following this Act's entry into force.”
Section 3(1) and (2)
“(1) Flats referred to in section 1 of this Act which are in state ownership shall be let by the Ministry of Reconstruction and Development.
(2) Other flats [i.e. those in social ownership] shall be let by the [Sequestration] Commission established on the basis of the Temporary Takeover and Administration of Certain Property Act.”
Section 4(2) and (3)
“(2) The Ministry of Reconstruction and Development or the [Sequestration] Commission shall issue a decision ... on the lease of a flat.
(3) Against the Commission's decision referred to in the preceding paragraph one may lodge an appeal to the [competent] Ministry ... within eight days.
(4) The appeal does not suspend the enforcement of the decision.”
20. On 3 June 2003 the Constitutional Court adopted a decision in case no. U-III-1701/2000 (published in Official Gazette no. 122/2003 of 30 July 2003) where the complainant, the holder of the specially protected tenancy of a flat in Benkovac, brought an action against the local authorities in order to be allowed to purchase the flat in question. The second-instance court ruled against him, finding that his specially protected tenancy had been terminated ex lege because he had left the flat in 1991 when the town had come under the control of the occupying forces, and had returned to it only after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. It found that he was therefore not entitled to purchase the flat at issue. The Constitutional Court ruled for the complainant and quashed the contested judgment. In so doing it held as follows:
“... [T]he Act on the Lease of Flats on the Liberated Territory refers to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995.
The complainant did not leave Benkovac after its liberation in 1995 but was expelled therefrom in 1991. Therefore, in the view of the Constitutional Court, the complainant does not belong to the category of persons to which the Act on the Lease of Flats on the Liberated Territory applies.
The second-instance court erroneously applied to the complainant's particular legal situation ... the Act on the Lease of Flats on the Liberated Territory. Consequently, that court wrongly held in the contested judgment that the complainant's specially protected tenancy of the flat in Benkovac was terminated by the operation of section 2(1) of the Act on the Lease of Flats on the Liberated Territory after the expiry of the ninety-day time-limit following its entry into force (that is, on 5 January 1996).
For these reasons, the complainant's constitutional right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution, as well as his constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution, was violated by the contested judgment.”
21. On 9 December 2004 the Constitutional Court adopted a decision in case no. U-III-1451/2004 (published in Official Gazette no. 187/2004 of 29 December 2004) where the complainant, the holder of the specially protected tenancy of a flat in Petrinja, brought an action against the local authorities in order to be allowed to purchase the flat in question. The ordinary courts ruled against her, finding that her specially protected tenancy had been terminated ex lege because she had left the flat and gone to live abroad in August 1995 when the Croatian authorities regained control of Petrinja following the military operation “Storm”, and had returned to Croatia only in 2001, that is, after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. It found that she was therefore not entitled to purchase the flat at issue. The Constitutional Court firstly referred to its interpretation of the Act on the Lease of Flats on the Liberated Territory provided in decision no. U-III-1701/2000 of 3 June 2003 (see the preceding paragraph), according to which that Act applied:
“... to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995.”
Having established that the complainant had indeed left her flat in Petrinja in August 1995 and had returned to Croatia only in 2001, the Constitutional Court dismissed her constitutional complaint.
22. On 6 May 2005 the Constitutional Court adopted a decision in case no. U-III-2174/2002 (published in Official Gazette no. 65/2005 of 25 May 2005) where the complainant, the holder of the specially protected tenancy of a flat in Pakrac, brought an action against the local authorities in order to be allowed to purchase the flat in question. The ordinary courts ruled against her, finding that her specially protected tenancy had been terminated ex lege because she had left the flat in 1991 when Pakrac had come under the control of the occupying forces, and had returned to it only in spring 1996, that is, after the expiry of the time-limit set forth in section 2(1) of the Act on the Lease of Flats on the Liberated Territory. They found that she was therefore not entitled to purchase the flat at issue. The Constitutional Court ruled for the complainant and quashed the contested judgments of the ordinary courts. In so doing it held as follows:
“... [T]he Act on the Lease of Flats on the Liberated Territory refers to persons who left the previously occupied territory of the Republic of Croatia after the liberation in 1995.
The complainant left the flat in Pakrac in August 1991. Therefore, in the view of the Constitutional Court, the complainant does not belong to the category of persons to which the Act on the Lease of Flats on the Liberated Territory applies.
The [ordinary] courts erroneously applied to the complainant's particular legal situation ... the Act on the Lease of Flats on the Liberated Territory. Consequently, the [ordinary] courts in the contested judgments wrongly held that the complainant's specially protected tenancy of the flat in Pakrac was terminated by the operation of section 2(1) of the Act on the Lease of Flats on the Liberated Territory after the expiry of the ninety-day time-limit following its entry into force (that is, 5 January 1996).
For these reasons, the complainant's constitutional right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution, as well as his constitutional right to a fair hearing guaranteed by Article 29 paragraph 1 of the Constitution ..., was violated by the contested judgments.”
23. The Housing Act (Zakon o stambenim odnosima, Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993), which was in force between 25 December 1985 and 5 November 1996 provided, in its relevant part, as follows:
Section 97
“1. The provider of the flat may terminate the specially protected tenancy... [inter alia] if the tenant does not pay the rent or the utility charges for three consecutive months, or for three months over the last twelve months.
2. Termination of the specially protected tenancy for the reasons enunciated in paragraph 1 may be effected if the tenant does not pay the rent or the utility charges due... within a reasonable time after being warned by registered mail to do so.”
Section 99
“1. A specially protected tenancy may be terminated if the tenant [...] ceases to occupy the flat for an uninterrupted period exceeding six months.
2. A specially protected tenancy shall not be terminated under the provisions of paragraph 1 of this section in respect of a person who does not use the flat on account of undergoing medical treatment, performance of military service or other justified reasons.
3. It shall also be considered that the flat has not been used for an uninterrupted period when the tenant only occasionally visits the flat ...”
24. Under section 105(1) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy.
25. In its decision no. Rev-616/1988 of 11 October 1988 the Supreme Court interpreted section 99 of the Housing Act in the following way:
“The specially protected tenancy is not lost ex lege by the mere fact of non-use of the flat for a period exceeding six months. Rather, that is a ground for termination of a specially protected tenancy that can be terminated only by the provider of the flat.”
26. The tenancy was terminated as soon as the court's judgment upholding the claim of the provider of the flat became res judicata (see, inter alia, the Supreme Court's decision no. Rev-1009/1993-2 of 15 June 1994).
27. In a series of decisions (for example, in cases nos. Rev-152/1994-2 of 23 February 1994, Rev-1780/1996-2 of 10 March 1999, Rev-1606/00-2 of 1 October 2003, Rev-998/03-2 of 4 December 2003, and Rev-590/03-2 of 17 December 2003) starting with decision no. Rev-155/1994-2 of 16 February 1994, the Supreme Court interpreted another aspect of section 99(1) of the Housing Act as follows:
“The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not, per se, make the non-use [of the flat by the tenant] justified. In other words, if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time-limits set forth in section 99(1) of the Housing Act ..., then the [illegal occupation of the flat by a third person] is not an obstacle to the termination of the specially protected tenancy.”
28. The Lease of Flats Act (Zakon o najmu stanova, Official Gazette no. 91/1996 of 28 October 1996), which entered into force on 5 November 1996, abolished the specially protected tenancy as such (section 30 paragraph 1) but provided that proceedings instituted under the Housing Act should be concluded under the provisions of that Act (section 52 paragraph 1).
29. The Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/91 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, entitled the holder of the specially protected tenancy of a flat in social or state ownership to purchase it from the provider of the flat under favourable conditions.
30. Section 4(2) provided that a written request for the purchase of a flat had to be made within one year of the date of the Act's entry into force (this time-limit was by subsequent amendments to the Act extended until 31 December 1996 for the flats located on the liberated territory).
31. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”


ITEMID: 001-103690
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF LALAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Ireneu Cabral Barreto
TEXT: 5. The applicant, Mr Marius Lalas, is a Lithuanian national who was born in 1978. The place where the applicant lives is unknown, as he is in hiding (see paragraph 23).
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 19 February 2003 the Kaišiadorys District Court convicted the applicant, together with his accomplice M., of attempted drug dealing in large quantities (Articles 16 § 2 and 232-1 § 5 of the Criminal Court as then in force). The court established that the offence had been disclosed using a “criminal conduct simulation model” (“the model”), which had been authorised against M. by the Prosecutor General on 29 May 2002.
8. The court found that in June 2002 (4 June according to the Government) V., a policeman acting as an undercover agent under the model, had approached M. and, during their conversation on various topics, asked where he could get psychotropic drugs. M. had said that he could procure and sell samples to the policeman straight away and more thereafter if the samples were good. The samples would cost from 15 to 21 Lithuanian Litai (“LTL”) (about 5 euros) per gram, depending on the quantities required. He had refused to lower the price for the first transaction, but suggested that it might be cheaper if V. needed a regular supply. However, the officer had replied that he could not wait and they had agreed to telephone each other on the matter. V. had to undergo a hospital intervention. Thereafter, it was M. who contacted V., suggesting a meeting so that he could provide V. with drug samples.
9. On an unknown date, M. had contacted the applicant with a request to obtain the drugs (0,5 kg), as V. liked the samples. The applicant had agreed to procure the narcotics. The Government contended that the applicant had contacted an acquaintance who had provided him with drugs.
10. On 21 June 2002, the applicant and M. had sold V. a few samples. The Government contended that the applicant had provided just one sample of amphetamines and stressed that he had stayed in the car while M. went to V.'s car.
11. On 23 June, V. had telephoned M., requesting more drugs for a total sum of USD 3,000. On 25 June the applicant and M. had provided V. with 250 grams of amphetamines. The applicant and his accomplice had been arrested immediately. Both had pleaded guilty to the attempted drug offence.
12. The court questioned V. as an anonymous witness in private, outside the courtroom via an audio relay. His identity was not disclosed in order to protect him and the proper functioning of the police drug squad. At that stage the defence did not put any questions to V. After V.'s testimony had been read out by the trial judge, the defence formulated some questions which were put to him by the judge and answered. The other evidence examined by the court included the transcripts of the conversations between V. and M., the testimony of another police officer who had acted as V.'s back-up during the operation, of their supervising officer and of the applicant and his co-accused, as well as an expert's findings.
13. The documents relating to the use of the model were classified as secret and were not disclosed to the defence because they would have disclosed the identity of the police officers involved and the operational methods of the drug squad. The Government contended that the applicant was not, however, denied access to information about the execution of the model.
14. Defence counsel, in his final submissions to the trial court, contended that the undercover police officer V. had acted unlawfully and that the applicant had been incited to commit the offence. Consequently, the officer's evidence could not be relied on. Furthermore, counsel contended that the applicant had never been involved in drug dealing before.
15. At the same time, M.'s defence counsel argued that the initial conversations between V. and M. had deliberately not been recorded by the police officer and that was because the crime was provoked.
16. The trial court concluded that the use of the model in the case had been lawful. The court observed inter alia:
“[T]he Criminal Conduct Simulation Model is used to collect evidence about the criminal activities of a particular person. That is what happened in the present case. Having obtained information that M. ... was selling psychotropic substances, the police officer - whose identity was concealed - expressed his wish to get some drugs. The subsequent activities of [both the applicant and his accomplice], i.e. the selling of a large quantity of drugs, were in part determined by the conduct of the police officer.”
17. The court acknowledged that the applicant's and his accomplice's conduct had been influenced by Officer V. from the outset, and commented at the sentencing stage that it had not been established that the applicant and M. had sold or tried to sell drugs to anyone other than this officer.
18. The applicant was convicted of the attempted offence and sentenced to three years' imprisonment, as well as to the confiscation of LTL 2,000 (approximately 580 euros).
19. The applicant appealed to the Kaunas Regional Court. His defence counsel argued that the sentence imposed was – that the crime was incited by the police officers and that the applicant had not even been mentioned in the authorisation for the model – the officers had controlled the actions of the applicant and his accomplice. As there was no real damage done to the interests protected by law, and the applicant had acknowledged his guilt, the goal of punishment could be reached by imposing another sentence. The Government contended that the applicant had not claimed that V. had overstepped the legitimate limits of investigation by influencing and inciting M. and the applicant to sell a large quantity of drugs: he had mainly raised issues relating to the punishment and had claimed that he had been drawn into committing the crime by M.
20. On 10 June 2003 the Kaunas Regional Court upheld the conviction, considering that the applicant was guilty of a completed offence. The court also re-classified the conviction under Article 260 § 2 of the new Criminal Code and set the sentence at eight years of imprisonment. With respect to the applicant's entrapment allegations, the court noted:
“The court finds the [applicant's] arguments that he was drawn into committing the crime by M. unfounded. The evidence shows that M., as the person who carried out the crime, had already been detected when drug-related crimes were being investigated. The case file shows that both M. and Lalas actively carried out the crime. ... [I]n establishing the persons involved in drug-dealing, [the officers] did not overstep the limits of the Criminal Conduct Simulation Model. ... [T]he police have only uncovered the ring of persons committing crimes and brought to an end their criminal activities. The officers joined in the crime that was already taking place ... Having established the group of accomplices, the officers brought to an end their criminal activities, but did not influence or incite them.”
21. The applicant lodged a cassation appeal. He alleged that the police actions had been unlawful. He argued that the authorities had applied the Criminal Conduct Simulation Model, as a consequence of which he had been induced into a crime by assisting M. to fulfil the police officer's lucrative request to procure drugs. The applicant observed that he had acted on the police officer's instructions. The lower courts had had no data that before the model had been sanctioned either the applicant or M. had ever been involved in similar or any other crimes. The applicant alleged that, at least from 21 June 2002, the police had known that he was an accomplice of M. However, the authorities had failed to sanction the application of the Criminal Conduct Simulation Model against him and, moreover, had continued provoking him to sell drugs in even larger quantities. Lastly, the applicant claimed a breach of his defence rights, alleging that he could not acquaint himself with the documents related to the authorisation to use the simulation model.
22. The Supreme Court dismissed the applicant's cassation appeal on 14 October 2003. As regards the lawfulness of the Model, it held:
“In the present case, the Criminal Conduct Simulation Model ... was applied in order to protect society and the State from the challenges posed by the consumption and illegal circulation of drugs and psychotropic substances. The model was sanctioned by the Prosecutor General, in view of the possession of information about M. selling narcotic substances. Such data ... is a lawful ground for the use of the model.
By entering into contact with M. and offering to buy psychotropic substances from him ..., V. only joined in the criminal activity of M. and uncovered his accomplice. Such actions cannot be considered as entrapment (nusikaltimo provokavimas): it appears from the case file that M. and Lalas were not subject to any pressure ... [The applicants'] allegation that the police undercover agent drew into the crime (paskatino) persons who had never offended before to commit a serious crime, is unsubstantiated. On the contrary, the use of [the model] helped to stop the criminal activity. ...
The information which is obtained by use of the [model] constitutes a State secret ... and is accessible only to persons who have special authorisation. Neither [the applicant] nor his lawyer has such authorisation. Consequently, the fact that secret operative information was not disclosed to them cannot be regarded as a violation of the applicant's defence rights. It should be noted that the first instance court acquainted itself with the secret operative information and its sources, and properly evaluated the lawfulness of the model.”
As regards the qualification of the offence the Supreme Court held that “the activities [of Malininas and Lalas] which constituted the objective part of the norm of § 2 of Article 260 of the Criminal Code were controlled by the officials and partially realised under their influence.” The applicant's conviction was again re-classified as an attempt to sell drugs in large quantities (Articles 22 § 1 and 260 § 2 of the new Criminal Code), and the sentence of eight years' imprisonment was maintained.
23. On 3 March 2004, the applicant's defence counsel submitted a request to the Supreme Court for reopening the case, claiming that the courts' decisions were based on inappropriate evidence which had been gathered unlawfully. This request was dismissed by the Supreme Court on 30 March 2004, on the ground that the arguments submitted by the applicant were intended to contest the factual background of the case and therefore were not a ground for reopening the case according to domestic law. The Government indicated that at the time when the request for reopening was lodged the applicant had already gone into hiding.
24. The Government submitted information about M.'s request for reopening his case, which has been granted by the Supreme Court on 18 December 2008 after the judgment of the Court in the Malininas case (Malininas v. Lithuania, no. 10071/04, 1 July 2008).
25. The relevant domestic law and practice, as well as the relevant international law, concerning police undercover activities and Criminal Conduct Simulation Models, have been summarised in the judgment of 5 February 2008 in the case of Ramanauskas v. Lithuania ([GC] no. 74420/01, §§ 31-37).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1