ITEMID: 001-75671
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: STOLARIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Marko Stolárik, is a Slovakian national who was born in 1943 and lives in Košice. The respondent Government were represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 March 1996 criminal proceedings were brought against Š. who was suspected of fraud. On 15 March 1996 the applicant’s wife joined the proceedings with a claim for damages.
The main hearing scheduled for 7 June 1996 had to be adjourned as the accused person had failed to appear.
The accused was remanded in custody on 27 September 1996. On the same day he admitted before the Košice II District Court judge that he owed the sum in question to the applicant’s wife.
Hearings in the criminal case were held on 18 October 1996 as well as on 8 and 26 November 1996. In the meantime, on 6 November 1996, the accused was released from detention on remand.
On 6 December 1996 the case was adjourned as the assessors were absent.
Between 25 March 1997 and 3 October 1997 the District Court scheduled 9 hearings. The accused failed to appear at the last two hearings. At these hearings the case was not proceeded with for various reasons, mainly due to the absence of an assessor but also because of the absence of witnesses.
In the meantime criminal proceedings were brought against Š. before the Košice I District Court for similar offences imputed to him and another person. On 1 October 1997 the Košice Regional Court decided that all charges against Š. and the other person should be determined by the Košice II District Court in a single set of proceedings.
On 17 November 1998 the case was adjourned.
On 25 November 1998 the applicant’s wife died. The heirs concluded an agreement according to which her estate passed to the applicant.
On 30 March 1999 the case was adjourned as the other accused had not appeared. On 9 November 1999 the accused was remanded in custody, but the Košice Regional Court ordered his release on 16 December 1999.
Neither accused person appeared before the Košice II District Court on 17 March 2000. The District Court therefore issued warrants which were submitted to the police on 23 and 27 March 2000 respectively.
Only one of the accused persons was brought by the police to a hearing scheduled for 13 July 2001. The police was unable to establish the whereabouts of Š., the other accused, who had earlier admitted that he owed a sum to the applicant’s wife. The District Court decided to deal with the charges against Š. separately. It returned the case concerning the other accused to the public prosecutor.
On 19 December 2001 the applicant confirmed to the District Court that, as heir of his late wife, he maintained the above claim for damages.
On 24 October 2003 the president of the Košice I District Court informed the Constitutional Court that the accused Š. had not yet been remanded. The letter stated that it was for the police to establish the whereabouts of that accused.
The proceedings are pending.
The applicant complained to the Constitutional Court that the Košice II District Court had violated his right under Article 48(2) of the Constitution to a hearing without unjustified delay in the criminal proceedings in which the above claim for damages was to be determined.
On 26 November 2003 the Constitutional Court delivered a finding concluding that there had been no violation of Article 48(2) of the Constitution.
The Constitutional Court first held, with reference to the Court’s caselaw under Article 6 § 1 of the Convention, that the guarantees of Article 48(2) of the Constitution were applicable as the applicant’s civil right to compensation was to be determined in the context of criminal proceedings against Š.
As to the merits of the case, the Constitutional Court held that there had been only one significant delay of approximately eight months in the proceedings, namely during the period between 6 October 1997 and 17 November 1998. It further held that the proceedings had also been unduly delayed as a result of repeated adjournments of the case between December 1996 and September 1997. As to the period subsequent to 17 November 1998, the Constitutional Court found no delays in the proceedings which could be imputed to the District Court. In particular, the District Court had been unable to proceed with the case effectively as the accused had not been arrested pursuant to the warrant issued in March 2000, and the responsibility for arresting the accused lay with the police. The Constitutional Court explicitly noted that the applicant himself had not included that period among the unjustified delays for which he held the District Court responsible. The Constitutional Court found that the applicant had not contributed to the length of the proceedings. Despite the above delays imputable to the District Court, the overall length of the proceedings was principally due to the complexity of the case.
Pursuant to section 20(1) of the Constitutional Court Act (Act 38/1993 Coll.), a petition for proceedings to be brought before the Constitutional Court shall indicate, inter alia, the party against whom it is directed and the decision which the plaintiff seeks to obtain.
With the exception of cases where the Act otherwise provides, the Constitutional Court is bound by a petition for proceedings to be brought before it (paragraph 3 of section 20).


ITEMID: 001-111540
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF OLSBY v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 7. The applicant was born in 1943 and lives in Sundbyberg.
8. By letter dated 9 August 2005, the Enforcement Authority (Kronofogdemyndigheten) informed the applicant that its representative would come to his home on 17 August 2005 to attach property to secure his tax debts amounting to SEK 979,503 (approximately EUR 110,000). It noted that he had previously been informed about his debts but that, since he had not paid, an attachment would be carried out. It is not known when the letter was sent or when the applicant received it.
9. On 19 August 2005 the Enforcement Authority attached SEK 9,128 (approximately EUR 950) from a bank account belonging to the applicant. A document called Proof of Attachment (bevis om utmätning) was sent to the applicant confirming this and advising him how to go about appealing against the decision and that this had to be done within three weeks from the date that the decision was served on him. The applicant, who was on holiday at the time, did not receive the Proof of Attachment until he returned home on 8 September 2005 and was formally served the decision.
10. In a decision of 24 August 2005 the Enforcement Authority distributed and paid the attached money to the creditor, in this case, the State itself. The decision was open to appeal within three weeks from the date of the decision.
11. On 20 September 2005 the applicant requested the Enforcement Authority to rectify (besluta om rättelse) the decision concerning attachment as he considered it to be incorrect. The Enforcement Authority, in a decision of the same day, rejected the applicant’s request for rectification on the ground that it had been submitted too late. It further stated that it was not possible to appeal against the decision in that part and that, as regarded its other decisions, appeals were possible within the time-frames of which the applicant had previously been notified.
12. On 22 September 2005 the applicant appealed against the attachment decision to the District Court (tingsrätten) of Stockholm. He mainly objected that the Enforcement Authority had not sufficiently taken into account, and made deductions for, the need to cover his basic living expenses.
13. In a comment (yttrande) by the Enforcement Authority in connection with the appeal, it stated that the appeal had been made within the stated time-limit but that, since the decision as regards the distribution and payment of the funds had gained legal force, the applicant’s appeal could not be tried by the court.
14. On 19 October 2005 the District Court dismissed the appeal after first having noted that the decision as regarded the payment of the attached funds had gained legal force on 15 September 2005 and that the applicant had appealed against the attachment decision on 22 September 2005. Thereafter the court, with reference to case-law from the Supreme Court, stated that an appeal against an attachment decision that was lodged after a decision regarding the payment of the attached funds had gained legal force could not be considered by the court.
15. The applicant appealed against the decision to the Svea Court of Appeal (hovrätten) requesting that it quash the lower court’s decision. The applicant submitted that he had not been aware of the attachment decision until 8 September 2005, when he was formally served the Proof of Attachment, and that he had never been notified of the fact that the Enforcement Authority, five days after the attachment decision, had distributed and paid the attached money. In his view, it should not have been permitted to distribute attached money until the actual attachment decision had gained legal force.
16. On 16 December 2005 the Court of Appeal upheld the District Court’s decision in full.
17. The applicant appealed to the Supreme Court (Högsta domstolen) which, on 28 February 2006, refused leave to appeal.
18. Domestic provisions of relevance to the present case are found mainly in the Enforcement Code (Utsökningsbalken; 1981:774) and the Enforcement Ordinance (Utsökningsförordningen; 1981:981). The Enforcement Authority is responsible for enforcement of judgments or other enforcement titles (exekutionstitel) comprising an obligation to pay or some other obligation. Enforcement cases are dealt with as public cases (allmänna mål), as in the applicant’s case, or private cases (enskilda mål; cf. Chapter 1, Article 6 of the Enforcement Code). Public cases are, for example, imposition of fines, taxes, and other funds to which the State is entitled.
19. According to Chapter 3, Article 1, of the Enforcement Code, an enforcement title may consist of a court judgment, but also of a decision of an administrative authority that may be enforced in accordance with a special regulation. Moreover, according to Article 23 of the same Chapter, enforcement titles in public cases may be enforced before they have gained legal force, if this has been specially prescribed. In this respect, Chapter 2, Article 19 of the Enforcement Code stipulates that a decision of the Enforcement Authority applies immediately, and the enforcement continues even if the decision is appealed against, unless otherwise prescribed by the Enforcement Code or ordered by a court.
20. In line with Chapter 4, Article 9 of the Enforcement Code, the Enforcement Authority shall investigate the debtor’s employment and income situation and whether he or she has attachable property. Attachment shall take place as soon as possible after the necessary documents have been received by the Enforcement Authority (Chapter 4, Article 10). With some exceptions, notification shall be sent to the debtor by post or given in an appropriate manner within such time that the debtor can be expected to have sufficient time to protect his or her rights (Chapter 4, Article 12). Chapter 6, Article 9 of the Enforcement Ordinance stipulates that the debtor shall be notified in writing and the notification is to be served, unless it is known that the debtor cannot be found. Moreover, the Enforcement Authority shall, as a rule, notify the interested parties about its decision of distribution of funds (Chapter 13, Article 11 of the Enforcement Ordinance). The debtor is generally not notified about distribution of funds and payment to the creditors and the enclosure to the attachment order does not contain any such information.
21. The attachment of bank funds is safeguarded by a notification prohibiting the bank from fulfilling its obligations to others than the Enforcement Authority, and the bank is, as a rule, requested to pay the attached funds to the Enforcement Authority (Chapter 6, Article 3 and Chapter 9, Articles 11-12 of the Enforcement Code).
22. Decisions regarding attachment and all subsequent decisions, such as the decision to distribute and pay the attached funds to the creditor, are taken by the Enforcement Authority and may be appealed against to the District Court, and further to the Court of Appeal and the Supreme Court. The rules regarding appeal against decisions taken by the Enforcement Authority are to be found in Chapter 18 of the Enforcement Code. Article 7, paragraph 2, of that Chapter stipulates that an attachment decision of the type in question shall be appealed against by a party within three weeks from the date when the decision was served on him. Article 7, paragraph 3, states that a decision on distribution or payment of funds shall be appealed against within three weeks of the decision. Article 14 of the same Chapter stipulates that, in the event of the grant of an appeal against a particular decision, a later decision in the case may also be revoked, if this can be done, provided the decision is connected with the former decision and that it had not gained legal force against the appellant at the time when he appealed against the first decision.
23. In its judgment of 26 March 1990 (NJA 1990 p. 166), the Supreme Court found that a prerequisite to trying an appeal against a decision regarding attachment is that no subsequent decision regarding the payment of the attached funds has gained legal force. In reaching its decision, the Supreme Court had regard to Chapter 18, Section 14 of the Enforcement Code as well as the preparatory works to that provision (Government Bill 1980/81:8, p. 1239).
24. In its comments on the above case, the National Tax Board (Riksskatteverket, formerly in charge of tax administration and enforcement service in Sweden), stated, inter alia, the following:
“In public cases, the funds are accounted for immediately, unless the official in charge of the matter has given special instructions. In cases concerning attachment of bank funds, it may take a while for the bank to account for the funds received. Once received by the Enforcement Authority, the funds are accounted for promptly to the creditors. Several weeks may elapse between the attachment day and the accounting day. The appeals provisions in Chapter 18, Section 7 of the Enforcement Code do not seem to be coordinated in the sense that the funds are to be accounted for after the appeal period has elapsed, and there is no support for such an interpretation of the Enforcement Code.”
25. Please see Eriksson v. Sweden (no. 60437/08, §§ 27-36, 12 April 2012) or Eskilsson v. Sweden ([dec.], no. 14628/08, 24 January 2012) for a comprehensive summary of this issue.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61262
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF SMIRNOVA v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1+5-3;Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 7. The applicants, Ms Yelena Pavlovna Smirnova (“Y.S.”) and Ms Irina Pavlovna Smirnova (“I.S.”) are twin sisters. They are Russian nationals, who were born in 1967 and live in Moscow.
8. On 5 February 1993 criminal proceedings were initiated against the applicants on suspicion of defrauding a Moscow bank on a credit matter. The prosecution's case was that the applicants acted together to obtain a loan in the bank on the security of a flat which did not in fact belong to them.
9. On 26 August, according to the applicants, on 27 August 1995, according to the Government, Y.S. was arrested and remanded in custody. Several days later, on 31 August 1995, she was charged with large-scale concerted fraud.
10. On 5 September 1995 the proceedings against I.S. were discontinued.
11. Following Y.S.'s arrest, her lawyer lodged an application for release with the Tverskoy District Court of Moscow. On 13 September 1995 the court held that it was too late to examine the application for release as by that time the preliminary investigation had finished.
12. On 26 March 1996 the investigating authorities sent Y.S.'s case to the Tverskoy District Court for trial.
13. On 21 March 1997 the Tverskoy District Court found that the evidence gathered against Y.S., although serious, did not embrace all offences possibly committed by her. The court also found that the proceedings against I.S. should not have been stopped because there had been evidence of her involvement in the offence too. It was decided to remit the case against Y.S. for further investigation. The court of its own motion re-instituted criminal proceedings against I.S. and joined them to Y.S.'s case. It was furthermore ordered that Y.S. should stay in detention, and that I.S., at large at the moment, should be imprisoned as soon as the police established her whereabouts.
14. Both applicants lodged appeals against the decision of 21 March 1997, but on 23 July 1997 the Moscow City Court disallowed them.
15. Since I.S. continued to hide from the investigating authorities, it was decided to sever her case from that of her sister and to stay it. The term of Y.S.'s detention was extended.
16. On 9 December 1997 the Lyublinskiy District Court of Moscow ordered that Y.S. should be released from custody because the extension of her detention had been unlawful and because of her poor health. She was released conditionally under the undertaking not to leave her permanent residence.
17. On 15 December 1997 the case against Y.S. was for the second time sent to the Tverskoy District Court for trial.
18. On 30 March 1999, the police arrested I.S. and took her into custody. The proceedings against her were resumed.
19. The second examination of the case against Y.S. by the Tverskoy District Court took place on 31 March 1999. The court noted that I.S. had by that time been arrested, and that given close factual links between the offences imputed to the sisters, the proceedings against them should be joined. The court also noted that Y.S. had not had sufficient opportunity to familiarise herself with the prosecution file before the hearing. As a result, the case against Y.S. was joined to that against I.S. and remitted for further investigation.
20. On the same day Y.S. was imprisoned on the ground of the gravity of the accusation.
21. The decision of 31 March 1999 became final on 13 May 1999 after it had been upheld on appeal by the Moscow City Court.
22. On 29 April 1999 the Lyublinskiy District Court granted I.S.'s application for release from custody because the investigating authorities had not submitted convincing material to justify her continued detention. The investigating authorities appealed against this decision, and on 19 May 1999 the Moscow City Court allowed the appeal. However, by that time I.S. had already left the prison.
23. On 20 May 1999 the Tverskoy District Court considered that the case against I.S. should be returned to the investigating authorities to be joined with the case against Y.S.
24. On 3 September 1999, I.S. was arrested and detained.
25. On 2 October 1999 Y.S. was released from prison because the investigation had finished and because the detention period set by the General Prosecutor's Office had expired.
26. Shortly afterwards, on 7 October 1999, I.S. was also released. Both applicants signed an undertaking not to leave their permanent residence.
27. On 29 October 1999 the investigating authorities handed over the case file they had prepared to the Tverskoy District Court. On 10 November 1999 the judge who had accepted the case for consideration ruled that the applicants should be remanded in custody pending trial in view of the gravity of the accusations and “the applicants' character”.
28. On 14 January 2000 the Constitutional Court examined an application lodged earlier by I.S. The court ruled that Article 256 of the Code of Criminal Procedure was unconstitutional as far as it empowered criminal courts to initiate of their own motion criminal prosecution of third persons not being party to the original proceedings, to apply measures of restraint and to order further investigations. The court held that by initiating criminal proceedings the courts in essence assumed prosecutorial functions in violation of the principle of the separation of powers.
29. Based on the judgment of the Constitutional Court, on an unspecified date, the acting president of the Moscow City Court lodged an application for supervisory review of the applicants' case.
30. On 24 February 2000 the Presidium of the Moscow City Court granted the application. The decisions of 21 March and 23 July 1997 were quashed in respect of I.S. The decision of 31 March 1999 was quashed in respect of both applicants. The decisions of 13 and 20 May and 10 November 1999 were also quashed. The case against the applicants was sent for further investigation. I.S. was released, but her sister remained in prison.
31. On 20 March 2000 the Prosecutor of the Tverskoy District re-instituted criminal proceedings against I.S. The case against I.S. was joined to that of Y.S.
32. On 20 April 2000 the investigation of the applicants' case was finished. On 25 April 2000 the prosecution file and indictment were submitted to the Tverskoy District Court. The same day, Y.S. was released because of the expiry of the custody period.
33. The examination of the applicants' case was scheduled for 9 June 2000. However, the hearing did not take place because the applicants had failed to appear even though they had been several times summoned for the service of the indictment.
34. The hearing was adjourned until 22 August 2000 but it again failed to take place since the applicant had not appeared before the court.
35. As the applicants persistently avoided the court proceedings and did not live at their permanent address, on 28 August 2000 the Tverskoy District Court ordered their arrest. The proceedings were stayed until the applicants were arrested.
36. On 12 March 2001 the applicants were arrested and detained. The court proceedings resumed and on 24 September 2001 the court extended the custody period for a further three months.
37. On 9 January 2002 the Tverskoy District Court found the applicants guilty and sentenced Y.S. to eight years' imprisonment with forfeiture of her estate, and I.S. to six years' imprisonment with forfeiture of her estate.
38. On 9 April 2002 the Moscow City Court annulled the judgment, closed the proceedings and discharged the applicants from serving the sentence under the statute of limitations.
39. The applicants were released in the courtroom.
40. When the investigating authorities were arresting Y.S. on 26 August 1995, they withheld her national identity paper – the “internal passport”. The passport was enclosed in the case file at the Tverskoy District Court. Y.S. made several unsuccessful attempts to recover the document, filing complaints to courts and prosecutors of various instances.
41. The lack of passport made Y.S.'s everyday life difficult. In December 1997 and April 1998 the Moscow Social Security Service and a law firm both refused to employ her because she did not have a passport. In December 1997 a Moscow clinic informed Y.S. that free medical care could only be provided to her if she presented an insurance certificate and her passport. For the same reason, in April 1998 the Moscow Telephone Company refused to install a telephone line in Y.S.'s home. On 2 June 1998 the Moscow City Notary Office notified Y.S. that she needed to verify her identity, for example, with a passport, if she wished to obtain notarial acts. On 10 December 1998 Y.S. was refused the registration of her marriage. On 19 March 1999 she was stopped by a police patrol for an identity check. As she was unable to produce the passport, she was taken to a police station and had to pay an administrative fine.
42. On 29 April 1998 the Office of the Moscow Prosecutor requested the Tverskoy District Court to return the passport.
43. On an unspecified date the President of the Tverskoy District Court informed Y.S. that the passport could be made available to her for certain purposes. But it should nonetheless remain in the case file because otherwise the authorities would not be able to tell Y.S. from her twin sister, who was in hiding.
44. On 29 June 1998 the President of the Tverskoy District Court confirmed that the passport should be retained in the case file.
45. On 31 March 1999 a police patrol came to the applicants' home to escort Y.S. to a court hearing. Both applicants were at home. Perplexed by their almost identical appearance, the police demanded that the applicants identify themselves or produce identity papers. Having met a refusal, and knowing that I.S. was also being looked for by the police, the patrol decided to arrest both applicants and took them to a police station.
46. On 6 October 1999, the investigation officer in charge of Y.S.'s case returned the passport to her.
“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.”
“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor or the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.”
Article 92 - Order and decision on the application of a preventive measure
“Upon application of a preventive measure a person conducting an inquiry, an investigator or a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained.
A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.”
“Placement in custody as a preventive measure shall be effected in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.”
“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ...
An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).”
Article 101 - Cancellation or modification of a preventive measure
The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor's instructions shall be permissible only with the prosecutor's approval.”
“If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days after the case reaches the court.”
“The examination of a case before the court must start no later than 14 days as from the fixing of a hearing date.”
Section 1 of the Rules regarding the passport of a citizen of the Russian Federation adopted by the Decree of the Russian Government No. 828 of 8 July 1997 provides that the passport of a citizen represents the basic document proving the citizen's identity on the territory of Russia.
Pursuant to Section 5, the passport shall contain information about the citizen's residence, liability to military service, marital status, minor children, issue of other identity documents.
Section 21 provides that the passport of convicted persons and persons remanded in custody shall be seized by investigating authorities or a court and adduced to the case file. When the citizen is released, the passport shall be returned.
Article 178 of the Code of Administrative Offences of 1984 establishes that residing without a valid passport or residential registration shall be punishable with an official warning or a fine.
The Moscow Government Decree No. 713 of 17 July 1995, concerning the rules of residential registration, establishes a fine of up to five times the minimum wage if residential registration cannot be shown, and up to fifty times the minimum wage in case of repeated violations.
VIOLATED_ARTICLES: 5
6
8
VIOLATED_PARAGRAPHS: 5-1
5-3
6-1


ITEMID: 001-108761
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MITROKHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1973 and is serving a prison sentence in the Altai Region.
6. On 5 October 2001 the applicant was arrested and charged with several offences, including murder and robbery.
7. On 7 August 2002 the Altai Regional Court found the applicant guilty as charged and sentenced him to twenty-two years’ imprisonment. On 26 February 2003 the Supreme Court of the Russian Federation quashed the judgment of 7 August 2002 on appeal and remitted the matter for fresh consideration.
8. On 3 November 2003 the Altai Regional Court, on the basis of a jury verdict, found the applicant guilty as charged and sentenced him to twentyone years’ imprisonment.
9. The applicant appealed and on 12 May 2004 the Supreme Court upheld the judgment of 3 November 2003 in substance. The applicant was not represented by a lawyer.
10. On 24 October 2007 the Presidium of the Supreme Court of the Russian Federation quashed, by way of supervisory review, the judgment of 12 May 2004 and remitted the matter for fresh consideration to the appellate court. The court noted that the absence of legal representation infringed the applicant’s defence rights.
11. On 25 January 2008 the Supreme Court upheld the applicant’s conviction in substance, but reduced his sentence to twenty years’ imprisonment. The applicant was represented by a State-appointed lawyer.
12. The applicant was detained in remand prison no. IZ-22/1 in Barnaul pending investigation and trial from 27 October 2001 to 27 June 2004. On numerous occasions he was transferred to a temporary detention facility in Barnaul or remand prison no. IZ-74/1 in Chelyabinsk in connection with the criminal proceedings against him.
13. On 27 June 2004 the applicant was transferred to correctional colony no. IK-10 in Rubtsovsk to serve the prison sentence there.
14. On 17 August 2004 the applicant was returned to remand prison no. IZ-22/1 in Barnaul in connection with the proceedings unrelated to the present case. He remained there until 7 August 2005.
15. On 7 August 2005 the applicant was transported to correctional colony no. IK-10 in Rubtsovsk where he continued to serve the prison sentence until 28 June 2006.
16. It appears that the applicant lodged several complaints in connection with the criminal proceedings against him and on 29 June 2006 he was transferred back to remand prison no. IZ-22/1 in Barnaul in order for him to participate in the court hearings.
17. On 20 December 2007 the applicant was transferred to remand prison no. IZ-77/1 in Chelyabinsk to ensure his participation in the appeal hearing at the Supreme Court of Russia by means of a video link. On 13 February 2008 the applicant was returned to remand prison no. IZ-22/1 in Barnaul.
18. On 13 May 2008 the applicant was transported to correctional colony no. IK-10 to serve the prison sentence.
19. In 2008-2009, for reasons unknown the applicant was detained in remand prison no. IZ-22/1 in Barnaul from 28 May to 29 June and from 3 August to 8 September 2008 and from 13 to 28 April 2009.
20. The Government provided the following information as regards the cell numbers, surface area and population related to the applicant’s stay in remand prison no. IZ-22/1:
21. At all times the applicant was provided with an individual sleeping place and bedding. He received two bed sheets, a pillow case, two towels, a blanket, a mattress, a pillow, a spoon and a mug. The temperature in the cells was between +180C and + 250C. The heating system functioned properly. All cells in the remand prison were equipped with mandatory ventilation in good working order. In addition, the windows were equipped with vents to ensure natural ventilation of the premises. All cells had a sink, a water tap and a toilet which was separated by a 0.7-m partition from the living area. The dining table was located about 1.5 m away from the toilet. Window panes were installed for the winter. There were no gaps in the window frames. The applicant could take at least one shower per week for at least fifteen minutes. The inmates were also provided with water-heating devices and sinks for their laundry. During the day the lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to maintain lighting in the lavatory. The cells were disinfected at least once every three months. No parasites or rodents were detected in the cells where the applicant was detained. The applicant was provided with three meals a day. All the food was subjected to quality checks.
22. According to the applicant, upon arrival at the remand prison he was placed in cell no. 78. The cell measured twenty-five square metres and housed fifteen inmates. There were not enough beds and the inmates took turns to sleep. The toilet was not separated from the living area of the cell. The lighting was not sufficient. The cell was infested with bed bugs. No bed sheets, pillows or blankets were provided. There were only old and dirty mattresses.
23. From October to December 2003 the applicant was held in cell no. 41. The cell measured ten square metres and housed thirteen to fifteen inmates. Sometimes their number reduced to nine or ten. The toilet was elevated from the floor by 0.6 metres and afforded no privacy. The dining table was about 0.8 metres away from the toilet. There was no sink and inmates had to wash themselves over the toilet. There were six bunk beds. Because of wide gaps around the windows the cell was very cold in the winter. The lighting was insufficient. The mattresses were old and smelly. No bed sheets, pillows or blankets were provided. There were no more than six mugs, cups and spoons. The cell was infested with lice, bed bugs and cockroaches. It was not ventilated. The remand centre organised one laundry day per month. The inmates were allowed to submit to the laundry only bed-sheets, pillow cases and blankets received from their relatives. No other items were accepted. Medicine was rarely prescribed. The cell was not disinfected. The food was of poor quality. The newly arrived detainees underwent a medical examination only five days after their arrival. As a result, inmates suffering from tuberculosis, syphilis, gonorrhoea, scabies and fungal infections, and HIV-positive detainees, were on several occasions placed in the cell where the applicant was detained.
24. On an unspecified date the applicant was placed in a different cell while cell no. 41 was being renovated. On several occasions he was transferred to other cells. The conditions of detention, however, remained unchanged. In December 2004 the applicant was returned to the same cell, which was assigned a new number, no. 39. He was detained there until 7 August 2005.
25. The walls in the cell had been repainted and there were only four bunk beds left. However, at the relevant time there were nine inmates in the cell. A sink had been installed. The toilet had been separated from the living area by a metal partition. Despite the separation, the person using the toilet could still be seen by the inmates. Ventilation had been installed, but it was constantly out of order. Bed sheets and pillow cases were provided only once, allegedly before an inspection of the remand centre.
26. As regards the conditions of his detention between 29 June 2006 and 28 April 2009, in his submissions sent to the Court on 30 June 2010 the applicant indicated that at no time was he afforded more than three square metres of personal space.
27. Section 23 of the Detention of Suspects Act of 15 July 1995 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
29. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows:
“45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).”
VIOLATED_ARTICLES: 3


ITEMID: 001-61798
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF NARINEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1957 and lives in Klaukkala.
8. The applicant was declared bankrupt on 2 September 1993 by the District Court (kihlakunnanoikeus, häradsrätten) of Hyvinkää. J., a lawyer practising in Helsinki, was appointed by a court order to act as the official receiver to his estate.
9. By a written notice, dated 16 September 1993, J. requested the postal service to send all the mail addressed to the applicant to the law office of J. The day before, on 15 September 1993, a meeting was held between the debtor, i.e. the applicant, and the official receiver in the law office of J. According to the Government, it was agreed that the applicant’s mail be transferred to the office and handled so that the official mail was opened, whereas the private mail was put aside to be further transmitted to the applicant. According to the applicant, no such agreement was reached.
10. The applicant contacted a lawyer at the postal service who informed him that the personal mail of a person declared bankrupt should not be transferred to the official receiver. The applicant received his mail from 23 September 1993 onwards.
11. While the mail was being transferred to the law office (between 16 and 23 September 2003), J. received and opened a letter sent by an insurance company and addressed to the applicant. The letter was sent to the applicant in an official envelope of the company and signed by the representative of the company’s legal department. Apparently the letter concerned a valuation of an apartment owned by the applicant’s ex-wife.
12. On 4 June 1996, the applicant requested the police to investigate the matter. During the police investigation J. said that the applicant had sent him a message after the meeting of 15 September 1993, withdrawing his consent to the transfer of mail and that on 22 or 23 September 1993 the applicant requested the postal service to transfer the mail back to his own address as he considered that the transfer of mail to the law office had been unlawful.
13. On 22 July 1996, finding that the requested prosecution of the alleged offence had become time-barred, a prosecutor issued a decision not to prosecute.
14. The applicant then instituted civil proceedings against J., requesting that J. be ordered to return all missing letters to the applicant and, failing which, he be ordered to pay 21,911 Finnish Marks (FIM) (approximately 3,685 Euros (EUR)) in compensation for non-pecuniary damage as well as the applicant’s legal fees and expenses. The proceedings were based on the fact that J. had opened the letter sent by the insurance company.
15. A legal counsel of the postal service who was heard before the District Court of Espoo (käräjäoikeus, tingsrätt) stated that the postal service applied the principles that were included in the repealed Postal Service Decree (postiliikenneasetus, posttrafikförordning; 692/1980) concerning the sorting of mail belonging to estates in respect of which an official receiver had been appointed by the court. According to him, it was a duty of the postal service to sort the debtor’s mail and put aside official mail belonging to the estate. In cases where the official nature of the mail was not clear, post offices decided on a case by case basis where to send the mail.
16. On 7 February 1997 the District Court rejected all the claims submitted by the applicant, finding that both J. and the postal service had acted in accordance with the Bankruptcy Act (konkurssisääntö, konkursstadga; 759/1991 as in force at the relevant time), and the established practice and internal instructions of the postal service concerning the sorting of mail. The applicant was ordered to pay FIM 27,487 (approximately EUR 4,620) in compensation for J.’s legal expenses. The District Court reasoned its decision, inter alia, as follows:
“The District Court agrees with the view of [J.] in that the official receiver has, in accordance with Section 50, subsection 2, of the Bankruptcy Act, a right to request that the debtor’s mail be received by the official receiver, excluding the debtor’s personal mail.
...
[J.] denied that the estate was in the possession of any other mail addressed to [the applicant], excluding a letter from the insurance company [P.]. That letter was related to the clarification of the assets and debts of [the applicant] and, thus, was included in the documents belonging to the estate. The estate was not obliged to return any of the material which belonged to it.
...
In the light of the evidence, [J.] has acted in accordance with the provisions of the Bankruptcy Act.
The [applicant’s] claims are rejected as a whole.”
17. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki which, on 15 January 1998, upheld the District Court’s decision. The applicant was ordered to pay J.’s costs of FIM 2,500 (approximately EUR 420). On 2 July 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.
18. Section 40 of the Postal Service Decree, which was issued in 1980 and repealed in its entirety in 1991 (945/1991), but was nonetheless applied as an internal instruction within the postal service, read as follows:
“Declaration of bankruptcy of a mail recipient does not affect his right to receive mail and postal orders. Where a person who proves that he has the right to represent the bankruptcy estate requires that mail and postal orders addressed to the person declared bankrupt be transferred to him, the amounts indicated on the postal order shall be paid to the bankruptcy estate.
A mail delivery addressed to a recipient declared bankrupt, the receipt of which needs to be acknowledged, shall be returned to the sender unless the sender has otherwise ordered before the return of the mail.
Notwithstanding the provisions in subsections 1 and 2 above, a natural person declared bankrupt shall nevertheless have the right to mail deliveries which clearly indicate that they do not belong to the bankruptcy estate.”
19. According to Chapter II, Section 12 of the former Constitution of Finland (hallitusmuoto, regeringsformen; 94/1919) as in force at the relevant time, the right to the secrecy of correspondence, telegraph messages and telephone conversations is inviolable, subject to exceptions provided for in the law.
20. The relevant sections of the Bankruptcy Act (konkurssisääntö, konkursstadga) provided at the relevant time as follows:
“Chapter 4 – Property belonging to the bankrupt’s estate (759/1991)
Section 45
(1) The property belonging to a bankrupt’s estate shall consist of any property which was in the debtor’s possession at the time of lodging a request for the transfer of property with a court of law, or at the time of issue of a court decision on the transfer of property upon a creditor’s request, or which the debtor was to get in his possession before the termination of the bankruptcy proceedings, and which may be lawfully seized, as well as of any property which may be recovered for the estate by virtue of the Act on the Recovery of Property for the Estate of a Bankrupt Person. (759/1991).
Chapter 5 – Administration of a bankrupt’s estate
Section 50
... (a) temporary estate trustee shall receive the documents and property belonging to the bankruptcy estate, list the assets and debts of the estate, and take any other measures necessary for the performance of his or her duties.
Section 65 (Reception of the estate)
Upon a court order, the executors of the estate (toimitsijamiehet, sysslomännen) shall without delay request the bankruptcy trustees (uskotut miehet, gode männen) to account for the assets and debts of the estate and of its administration, shall take the property of the estate in their possession and take the necessary actions for the benefit and relief of creditors. If the trustees refuse to account for the assets and debts, the court shall place them under an obligation to do so. Should a person who is appointed executor have previously acted as trustee, he or she shall also give such account to the creditors.”
21. As the Bankruptcy Act was rather old, a well-established interpretation of its provisions developed. According to literature concerning bankruptcy in Finland (Erkki Havansi, Finnish Bankruptcy Law, 3rd revised edition, Helsinki 1992; in Finnish), the normal duties of temporary bankruptcy trustees during the temporary administration of the bankrupt’s estate included the following: (A) taking over the possession of the property, including (a) collecting information on property, (b) taking into possession, and (c) preservation of property by means of protective measures, and (B) listing of assets and liabilities with the cooperation of the debtor. The taking into possession of the property made the assessment of the property’s value, its preservation and administration possible. Cash reserves, arriving mail and accounts were included.
22. In 1999 the Finnish Office of the Bankruptcy Ombudsman gave the following recommendations concerning the matter:
“Recommendations 11/99: Rights and Obligations of the Debtor in Bankruptcy Proceedings
10. Personal documents and possessions of the debtor
The private life of individual persons is protected by the Constitution and international conventions. This shall be paid attention to in the administration of the bankrupt’s estate.
Secrecy of correspondence is one of the rights protected by the Constitution, and there shall be no interference with the exercise of this right except such as is in accordance with a specific provision of the law. The bankruptcy trustee shall collect information on the debtor’s business correspondence. He shall try and follow practices that ensure access to such information on the business correspondence as is necessary for the management and settlement of the estate, without violating the secrecy of the debtor’s correspondence.
The estate trustee shall not have the right to take over the possession of or examine the debtor’s private correspondence or other personal documents. Any personal documents of the debtor, which are of no relevance to the administration of the estate, shall be delivered to the debtor.”
23. New legislation concerning bankruptcy will enter into force on 1 September 2004, repealing the previous bankruptcy legislation (see paragraph 20 above. According to Chapter 4, section 4(1) of the new Bankruptcy Act (konkurssilaki, konkurslag: 120/2004) the bankruptcy trustee shall have the right, without the debtor’s consent, to receive and open mail and other messages, as well as parcels, addressed to the debtor which pertain to his or her economic activities.
VIOLATED_ARTICLES: 8


ITEMID: 001-90627
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF COSIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1943 and lives in Požega.
5. The applicant has served as a teacher in various elementary schools in Croatia. In 1966 she began her service in an elementary school in Čaglin. In 1970 she gave birth to a son who remained living with her until 2004. As a single mother she was granted a specially protected tenancy (stanarsko pravo) of a flat in Čaglin. In 1984 the applicant was transferred to an elementary school in Požega, a town in the same region. The school provided her with a flat, which it had temporarily leased from its then owner, the Yugoslav People’s Army (YPA).
6. The lease expired in 1990. In 1991 the State took over all property of the YPA, thereby becoming the owner of the flat. The school then asked on several occasions for the lease to be extended but these requests were ignored by the competent authorities. However, since no request for her eviction was made and no other flat was provided for her by her employer, the applicant remained living in the flat and continued paying a monthly rent to the State.
7. On 7 January 1999 the State brought a civil action against the school and the applicant in the Požega Municipal Court (Općinski sud u Požegi), seeking the applicant’s eviction. The State argued that since the applicant’s lease had expired she had no further legal entitlement to occupy the flat.
8. On 30 October 2002 the court granted the State’s claim and ordered the applicant to vacate the flat within fifteen days even though, as it noted, the applicant had no other place to stay. The court did so because it was satisfied that the State owned the flat and the applicant had no legal entitlement to occupy it. The judgment concluded as follows:
“The evidence presented in the proceedings lead this court to finding the plaintiff’s claim to be well-founded.
The Government’s Decree of 2 October 1991 resulted in all possessions of the former YPA [Yugoslav Peoples Army] coming into the ownership of the Republic of Croatia ...
Before the above Decree had been enacted, a contract in relation to the lease of the flat in question was concluded ... between the YPA ... and the school ... The contract was concluded to last for a limited period of time - until 31 December 1990 when the school was obliged to return the flat ... The contract was concluded pursuant to section 36 of the then valid Act on Financing of the YPA ... That Act allowed the YPA to lease its property ... On the basis of the contract [between the YPA and the school], the school ... entered into further contracts with the second respondent Katarina Ćosić allowing her to temporarily occupy the flat and obliging her to pay rent as well as all other expenses connected with the use of the flat, while maintaining the second respondent’s obligation to return the flat to the YPA after the expiry of the contract.
Neither the [initial] contract nor the additional contracts between the school and the second respondent are a basis for acquiring a specially protected tenancy of the flat in question. ... Thus, irrespective of the time [the second respondent] has occupied the flat and irrespective of the fact that the respondents continued to be in possession of the flat even after all contracts [concerning the flat] had expired, there is no legal basis for the second respondent to have acquired any rights on the flat in question ...
Although this court is aware of the respondent’s unenviable position, it has to adopt its decisions exclusively on the basis of the laws and therefore, relying on the facts of the case, it has decided as in the operative part of this judgment.”
9. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) on 13 March 2000 and by the Constitutional Court (Ustavni sud Republike Hrvatske) on 9 February 2006. Both these courts endorsed the reasoning of the first-instance court that the applicant had no legal entitlement to occupy the flat.
10. Section 161, paragraph 1 of the Act on Ownership and other Rights in Rem (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows:
“The owner has the right to seek repossession of his or her property from the person in whose possession it is.”
VIOLATED_ARTICLES: 8


ITEMID: 001-69202
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CELIKBILEK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2;No violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü
TEXT: 9. The applicant, a Turkish citizen of Kurdish origin, was born in 1951 and lives in Diyarbakır.
10. The facts surrounding the killing of the applicant’s brother, Abdulkadir Çelikbilek, are disputed by the parties.
11. The facts as presented by the applicant are set out in Section B below (see paragraphs 12-23). The Government’s submissions concerning the facts are summarised in Section C below (see paragraphs 24-28). Documentary evidence submitted by the Government is summarised in Part D (see paragraphs 29-46 below).
12. On 9 June 1994, the applicant’s brother, Abdulkadir Çelikbilek, gave a statement to the Prosecutor at the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). He stated that he had heard that a certain Ms Amber Yılmaz had fallen from the roof of a three-storey house in the course of a military operation conducted at about 9.30 p.m. on 8 June 1994. He had further heard that Ms Yılmaz’ husband, Fethi Yaşar, had been a PKK member and that Mr Yaşar was currently serving a 36 year prison sentence for PKK membership. He finally stated that he was not aware of any links between Ms Yılmaz and the PKK (see paragraph 30 below).
13. After having given this statement, Abdulkadir was followed on a number of occasions. In November 1994 Aynur Çelikbilek, the wife of Abdulkadir Çelikbilek, was visited by two policemen who asked her questions about her husband’s whereabouts.
14. At about 11.00 a.m. on 14 December 1994, Abdulkadir went to the Esnaflar Café in the centre of Diyarbakır. About ten minutes after his arrival, a white Renault car with four plain-clothes policemen stopped in front of the café. It is common knowledge in south-east Turkey that this kind of car is used by plain-clothes police officers. Two policemen stayed in the car while the other two entered the café. The latter two policemen were the same as the ones who had previously questioned Aynur Çelikbilek about her husband’s whereabouts. It was obvious that the two persons were policemen, as they were armed. Only members of the security forces could have entered a café in Diyarbakır carrying firearms. When the applicant’s brother was leaving the café, the two policemen also left the café. Outside the café the two policemen took Abdulkadir by the arms and forced him into the waiting white Renault. This was seen by all the persons present in the café. The car left in the direction of the Diyarbakır Police Headquarters. Two persons, who were present in the café when the plain-clothes police officers took Abdulkadir away, told the applicant at a later stage about this incident and added that the persons who had abducted his brother were certainly police officers.
15. On 15 December 1994, the applicant went to the Diyarbakır Branch of the Human Rights Association in order to inform them of the incident. He was advised to file a petition with the office of the Prosecutor at the Diyarbakır Court. The applicant then went to the Diyarbakır Court to file a petition. However, the police at the door of the Court building told him that his brother’s name was not on their list. The applicant returned to the Diyarbakır Court several times in the course of the following days and unsuccessfully tried to obtain information about his brother.
16. At around 7.30 a.m. on 21 December 1994, three police officers came to the applicant’s home and told him that his brother had been wounded and admitted to the hospital. When the police officers took the applicant to their car, they told him that his brother’s body had been found outside the Mardinkapı cemetery in Diyarbakır. The applicant went with the police officers to the place where his brother’s body had been found. There, the police searched him. They took his petition which was addressed to the Prosecutor at the Diyarbakır Court from the pocket of his jacket. Despite his request, the police officers refused to give it back to him. The applicant is of the opinion that the police refused to return his petition in order to weaken any case he might bring against the Turkish authorities.
17. The body of the applicant’s brother was lying on top of a rubbish heap near the Mardinkapı cemetery. Marks of torture could be seen all over his body. It looked as if the skin on the soles of his feet had been pulled off with pincers. His arms, legs and head looked as if they had been skewered on a thick skewer. His whole body was black and blue and there were marks on his throat.
18. After the police had shown the applicant the body of his brother, they took him in their car to his brother’s house, where the police conducted a house search. During this search, the applicant heard on the police radio that the Prosecutor was about to go and see the body of his brother. The police interrupted their search in order to join the Prosecutor. They took the applicant with them. The Prosecutor did not put any questions to the applicant. The police recorded the location of the body and subsequently took the body to the State Hospital morgue. The applicant was also taken to the morgue in a police car. On the way to the morgue, a police officer in the car told the applicant that all the villagers of Tepecik would die on the streets in the same manner.
19. In the morgue, some other police officers told the applicant that village guards had burned the village of Tepecik and that these same village guards had probably killed his brother. The applicant replied that he did not believe that village guards had killed his brother and added that, if village guards had killed his brother, they must have been helped by the police. The police officers replied that Leyla, the daughter of the applicant’s deceased brother, was of the opinion that the police had killed her father. When the applicant was asked whether he shared Leyla’s opinion, he said that he did.
20. In the morgue, an autopsy of the body of the applicant’s brother was conducted. The applicant asked the doctor about the marks around his brother’s throat. The doctor told him that something must have been passed around his brother’s neck after his death and that his body must have been dragged along by it. After the autopsy, the body was released for burial.
21. While the applicant was at the morgue, another group of police officers had returned to the house of the applicant’s brother in order to finish the house search. These policemen told Leyla that her father had told the police that he had a package, which was likely to contain a firearm, and they asked her to give this package to them. According to the applicant, this question indicated that the security forces had in fact apprehended his brother and that they had interrogated, tortured and killed him. On the same day, a statement was taken from the applicant at the Mardinkapı Police Station (see paragraph 37 below).
22. Some time before the events at issue, the applicant’s oldest son Fesih had joined the PKK. The applicant had managed to keep this a secret. However, ten days after the death of his brother, a person, who introduced himself as Cevat from the anti-terrorism branch of the police, came to the applicant’s home. Cevat told the applicant that his son had joined the PKK and asked the applicant to inform the security forces when his son came home. The applicant thus became convinced that his brother must have told the security forces about Fesih while he was under torture.
23. In June 1996 the applicant was himself abducted by State agents while walking in the street in Diyarbakır. He was put in a car and prevented from seeing and speaking. He was taken into the countryside where State agents wanted to shoot him but they then changed their minds and took the applicant to the rapid response force building in Diyarbakır where he was detained for a period of 31 days before being jailed for 14 months. While in detention he was threatened a number of times. The content of the threats was, “Do not follow your son’s or your brother’s way. If you do, we will kill you too”. These threats made the applicant all the more convinced that the Government were directly responsible for the abduction and killing of his brother.
24. At around 7.30 a.m. on 21 December 1994, the Mardin Kapı Police Station was informed by passers-by that a person was lying near the Mardinkapı cemetery in Diyarbakır. Acting on that information, police officers found a body, with its hands tied behind its back. It was lying on top of a rubbish heap near the cemetery. The police found an identity card on the body in the name of Abdulkadir Çelikbilek.
25. After being informed by the police, the Prosecutor in charge, Mr Mehmet Tiftikçi, and Dr Lokman Yavuz arrived at the scene. Footprints were found which could not be analysed as they were indistinguishable. There were no traces of any fight. Wheel traces were examined but were found to have been made after the discovery of the body. After an incident report had been compiled and a sketch map had been drawn up showing the location of the body, the corpse was taken to the morgue.
26. On the basis of the identity card found on the body, the victim’s family was contacted. The victim’s brother, Abdurrahman Çelikbilek, was brought to the morgue where he identified the body as that of his brother Abdulkadir. Subsequently an autopsy was carried out.
27. According to their statements taken on 21 December 1994, the applicant and the victim’s wife, Aynur, did not know who might have killed Abdulkadir. They stated that they had no enemies at all. The applicant further declared that, in so far as he knew, his brother had been detained for firearms trafficking after the coup d’Etat of 12 September 1980. The victim’s widow also stated that she wished to file a complaint against the person or persons who had killed her husband. Her criminal complaint was formally registered on 28 December 1994.
28. The Prosecutor opened an investigation under file no. 1994/9249, which is currently still pending. The Prosecutor has requested the police authorities to keep him informed on a regular basis about this investigation.
29. The following information appears from the documents submitted by the Government.
30. On 9 June 1994 a statement was taken from Abdulkadir Çelikbilek, the applicant’s brother, by the Prosecutor at the Diyarbakır Court. Mr Çelikbilek stated that he had heard that a female by the name of Amber Yılmaz had fallen from the top of a three-storey building during a military operation which had taken place at 9.30 p.m. the previous day. He further stated that he had heard that Anbara’s husband was serving a 36-year prison sentence because of his PKK membership. As far as he knew, Anbara was not a PKK member.
31. At 7.45 a.m. on 21 December 1994, a deputy police chief and a police officer drew up an on-site report. According to this report, a number of persons had informed the police at 7.30 a.m. the same morning that they had seen a person lying on the side of the road, near the Mardinkapı cemetery. When the police arrived at the scene, they found the frozen body of a male, lying on its right side between the road and the wall of the cemetery. It was lying at an approximate distance of 150-200 metres from the entrance to the cemetery. Its hands had been tied at the back with the belt of the coat the deceased was wearing. According to the identity card found on the body, the deceased was Abdulkadir Çelikbilek. No evidence was found at the scene.
32. It was recorded in a sketch, drawn up by a police officer at 9 a.m. the same day to show the location of the body, that the cause of death was strangulation.
33. According to another on-site report drawn up the same day, the duty Prosecutor and a pathologist attended to the body of the person, “who had been strangled by a length of wire”. They observed a large number of footprints near the body. However, casts of these footprints were not made because there were too many of them and also because they were all mixed up. Similarly, no casts of the tyre marks observed near the body were made because it was concluded that these marks had been made by vehicles “which had nothing to do with the incident”. There was no sign of a struggle at the scene and there was also no evidence capable of providing clues about the perpetrator(s) of the killing. It was also noted in this report that the body had already been photographed by the police. The Prosecutor ordered the transfer of the body to the morgue at the Diyarbakır State Hospital for an autopsy.
34. According to the autopsy report, the body was taken to the hospital at around 9.30 a.m. the same morning. The applicant was already at the hospital when his brother’s body arrived. He identified his brother and stated that he had been missing for eight days, during which time the family had been unsuccessfully searching for him. He added that he did not know who might have killed his brother.
35. It was observed by the Prosecutor that rigor mortis had already set in. Also, a very large number of injuries and ecchymoses were observed on the face and on the trunk of the body. The doctor concluded that some of these injuries had been caused three days previously and some of them between six to twelve days previously.
36. According to a full autopsy carried out by the doctor, the cause of death was established as mechanical asphyxiation and it was concluded that the killing had been intentional. Taking into account the fact that rigor mortis had already set in, the doctor concluded that the death had occurred approximately 10-15 hours earlier. At the end of the autopsy, the body was photographed once more. The Prosecutor issued a burial licence and instructed the police officers to carry out a comprehensive investigation.
37. Also on 21 December 1994, at 3.30 p.m., a statement was taken from the applicant by the police chief at the Mardinkapı police station. The applicant stated that his brother had not returned to his house in the evening of 14 December 1994. The following day he had gone to the café which his brother used to frequent and asked the people there whether they had seen him. He was told by the people there that four persons had come into the café the previous day and gone straight up to Abdulkadir who had been sitting in the café. The four men and Abdulkadir had then left the café together and got into a white Renault estate car and driven away. The number plate of the car had not been “obvious”. The applicant stated that he did not know to what extent this sequence of events, which had been relayed to him by the people in the café, represented the truth. He also stated that he had tried to submit a petition to the Prosecutor at the Diyarbakır Court but that it was not accepted. He added that he did not suspect anyone in particular and that the family did not have any enemies. He finally stated that his brother had served a prison sentence after 1980 for an arms dealing offence.
38. On the same day, the police chief at the Mardinkapı police station took a statement from Aynur Çelikbilek, the widow of the applicant’s deceased brother Abdulkadir. Mrs Çelikbilek stated that her husband had left their family home at around 11 a.m. on 14 December 1994. When he had failed to return home in the evening, she had informed her brother-in-law, the applicant, and asked him to make the necessary enquiries in order to find her husband. Despite all their efforts, they had not been able to find her husband. She did not suspect anyone in particular and the family did not have any enemies. She had been told by the applicant that her husband had been taken away from the café in a white Renault car. She asked the Prosecutor to prosecute the persons who killed her husband.
39. Finally, on 21 December 1994 the police chief of the Mardinkapı police station forwarded to the Diyarbakır Police Headquarters his report in which he informed the latter about the body found in his area. He also appended to his report the two statements (see paragraph 37-38 above), the on-site reports and the sketch prepared the same morning (see paragraphs 31-33 above).
40. It appears that this report and its appendices were transferred to the Prosecutor’s office in Diyarbakır who opened an investigation into the killing the same day. The investigation was given the number 1994/9249.
41. On 23 December 1994 the Prosecutor instructed the Diyarbakır Police Headquarters to search for the perpetrator(s) of the killing.
42. On 6 January 1995 the Prosecutor repeated his instructions to the Diyarbakır Police Headquarters and asked to be kept informed every three months of any possible developments until the expiry of the statutory limitation period on 20 December 2014. The Prosecutor repeated his instructions to the Diyarbakır Police Headquarters on 1 January 1996, 28 February 1996 and 29 March 1996.
43. On 20 June 1996 the General Security Headquarters in Ankara sent a letter to the Ministry of Foreign Affairs in an apparent response to a request made by the latter on 10 June 1996, pursuant to which the former had been asked to “forward to the Ministry of Foreign Affairs the criminal records showing that the deceased brother of Abdurrahman Çelikbilek, who had made an application to the European Commission of Human Rights, had been involved in counterfeit and drugs dealing”. According to the letter sent to the Ministry of Foreign Affairs, Abdulkadir Çelikbilek had been prosecuted in 1985 and 1986 for drug dealing and counterfeit offences and imprisoned.
44. On 1 December 1996 the Diyarbakır Prosecutor’s office was informed by the chief of the Mardinkapı police station that they had been searching for the perpetrators of the killing but had not yet managed to find them.
45. On 6 December 1996 a police officer reported to the Mardinkapı police station that he had searched for the perpetrators of the killing but could not find them.
46. The Prosecutor in Diyarbakır repeated his instructions to the Diyarbakır Police Headquarters on 6 December 1996, 6 January 1997, 13 August 1997 and, finally, on 15 March 1999.
47. The relevant domestic law and practice are set out in the judgment of Tepe v. Turkey (no. 27244/95, §§115-122, 9 May 2003).
VIOLATED_ARTICLES: 13
2
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-95075
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GLUSHKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1954 and died on 10 September 2008.
5. On 3 April 1994 the applicant had a work-related accident. Subsequently, he received the status of a partially disabled person.
6. The applicant's former employer, the State company “Makeyivvugillya” (“the company”) paid the applicant a lump sum accident benefit and awarded him a monthly allowance for his disability.
7. In 2003 the applicant instituted proceedings in the Tsentralnogorodskoy Court of Makeyevka against the company and the State Insurance Fund for Industrial Accidents and Diseases (“the Fund”). He sought re-calculation of the above allowances and claimed compensation for losses sustained due to erroneous calculation.
8. On 29 October 2003 the court found for the applicant and awarded him 42,970.19 Ukrainian hryvnas (UAH), to be paid by the company, and UAH 12,485.76 to be paid by the Fund.
9. On 25 February 2004 the Tsentralno-gorodskoy District Bailiffs' Service of Makeyevka instituted enforcement proceedings.
10. On an unspecified date the Fund paid the applicant the full amount awarded under the judgment.
11. In the period from 24 December 2004 to 26 July 2005 the company partly paid its debt. The judgment remains unenforced.
12. The relevant domestic law is summarised in the Romashov v. Ukraine judgment (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-75221
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ZASURTSEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;(legal certainty);Not necessary to examine P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1947 and lives in Ruzayevka, Republic of Mordovia.
5. In 1987 the applicant took part in emergency operations at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examination which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded special monthly benefits from the State.
6. Until March 1999 the applicant received monthly benefits in the amount of 6,685.57 roubles (RUR). However, as from March 1999 the Ruzayevka Department of Social Security decreased the amount of the benefits to RUR 1,915 and as from May 1999 to RUR 525.29 on the grounds that the amount previously paid had been miscalculated.
7. Considering the decrease of the monthly benefits unlawful, in 2000 the applicant, together with two other plaintiffs, instituted proceedings against the Ruzayevka Department of Social Security.
8. On 30 June 2000 the Ruzayevskiy District Court granted the claim and found the decrease of the monthly benefits unlawful. The court awarded the applicant arrears for the period between 1 March 1999 and the date of the judgment in the amount of RUR 95,773.46 (approximately EUR 3,568) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 6,685.57 (approximately EUR 252). The judgment was not appealed against and became final.
9. On 3 October 2000 the execution proceedings were instituted.
10. The Prosecutor of the Republic of Mordovia brought an application for supervisory review of the judgment. The application was dated 7 December 2000. The execution proceedings were stayed until the examination of the application. The order to stay the execution proceedings, which referred to the application for supervisory review lodged by the acting Prosecutor of the Republic of Mordovia, was dated 18 October 2000.
11. On 14 December 2000 the Presidium of the Supreme Court of the Republic of Mordovia granted the application. The Presidium quashed the judgment of 30 June 2000 and remitted the case for a fresh examination on the grounds that the first instance court miscalculated the amount of the monthly benefits.
12. On 22 January 2001 the execution proceedings were terminated due to the quashing of the judgment.
13. On 22 March 2001, after the new examination of the case, the Ruzayevskiy District Court dismissed the applicant’s claim.
14. On 3 July 2001 the Supreme Court of the Republic of Mordovia upheld the judgment on appeal.
15. On 11 February 2002, following the applicant’s request of 8 August 2001, the Acting Chairman of the Supreme Court of the Republic of Mordovia brought an application for supervisory review of the judgments of 22 March and 3 July 2001.
16. On 21 February 2002 the Presidium of the Supreme Court of Mordovia granted the application. The Presidium quashed the judgments of 22 March and 3 July 2001 and remitted the case for a fresh examination on the grounds that the court’s calculation of the amount of the monthly benefits was unlawful.
17. On 1 March 2002 the Ruzayevskiy District Court stayed the proceedings concerning the applicant’s claim until the Constitutional Court pronounced on the relevant issue.
18. On 12 July 2002 the Ruzayevskiy District Court renewed the proceedings. It appears that at a certain stage the proceedings concerning the applicant’s claim were severed from the proceedings concerning the claims of the other two plaintiffs.
19. On 7 October 2002 the Ruzayevskiy District Court partially granted the applicant’s claim.
20. On 3 December 2002 the Supreme Court of the Republic of Mordovia quashed the judgment on appeal and remitted the case for a fresh examination.
21. On 27 January 2003 the Ruzayevskiy District Court partially granted the applicant’s claim. The court awarded the applicant arrears in the amount of RUR 471,981.80 (approximately EUR 13,756) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 17,443.22 (approximately EUR 508).
22. On 25 March 2003 the Supreme Court of the Republic of Mordovia varied the judgment of 27 January 2003. The court awarded the applicant arrears for the period between 1 March 1999 and 31 December 2002 in the amount of RUR 433,435.04 (approximately EUR 13,012) and ordered the Ruzayevka Department of Social Security to make monthly payments for his benefit in the amount of RUR 20,094.60 (approximately EUR 603). The court calculated the arrears for the whole period by index-linking the amount of the monthly payments to the pensioner’s subsistence minimum set yearly by the State Statistics Committee of the Republic of Mordovia.
23. On 8 April 2003 the execution proceedings were instituted. They were closed on 23 December 2003 due to full recovery of the judgment debt.
24. On an unspecified date the applicant applied for supervisory review of the judgments of 27 January and 25 March 2003. On 6 February 2004 the Supreme Court of the Republic of Mordovia dismissed the application.
25. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
26. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
27. Under the 1964 Code of Civil Procedure, which was in force at the material time, judgments became final as follows:
“Court judgments shall become legally binding on the expiration of the time-limit for lodging a cassation appeal if no such appeal has been lodged. If the judgment is not quashed following a cassation appeal, it shall become legally binding when the higher court delivers its decision...”
28. The only further means of recourse was the special supervisory-review procedure that enabled courts to reopen final judgments:
“Final judgments, decisions and rulings of all Russian courts shall be amenable to supervisory review on an application lodged by the officials listed in Article 320 of the Code.”
29. The power of officials to lodge an application (protest) depended on their rank and territorial jurisdiction:
“Applications may be lodged by:
1. The Prosecutor General – against judgments, decisions and rulings of any court;
2. The President of the Supreme Court – against rulings of the Presidium of the Supreme Court and judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;
3. Deputy Prosecutors General – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
4. Vice-Presidents of the Supreme Court – against judgments and decisions of the Civil Chamber of the Supreme Court acting as a court of first instance;
5. The Prosecutor General, Deputy Prosecutor General, the President and Vice-Presidents of the Supreme Court – against judgments, decisions and rulings of any court other than rulings of the Presidium of the Supreme Court;
6. The President of the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district, the Public Prosecutor of an autonomous republic, region, city, autonomous region or an autonomous district – against judgments and decisions of district (city) people’s courts and against decisions of civil chambers of, respectively, the Supreme Court of an autonomous republic, regional court, city court, court of an autonomous region or court of an autonomous district that examined the case on appeal.”
30. The power to lodge such applications was discretionary, that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review.
31. Under Article 322 officials listed in Article 320 who considered that a case deserved closer examination could, in certain circumstances, obtain the case file in order to establish whether good grounds for lodging an application existed.
32. Article 323 of the Code empowered the relevant officials to stay the execution of the judgment, decision or ruling in question until the supervisory review proceedings had been completed.
33. Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments:
“The court that examines an application for supervisory review may:
1. Uphold the judgment, decision or ruling and dismiss the application;
2. Quash all or part of the judgment, decision or ruling and order a fresh examination of the case at first or cassation instance;
3. Quash all or part of the judgment, decision or ruling and terminate the proceedings or leave the claim undecided;
4. Uphold any of the previous judgments, decisions or rulings in the case;
5. Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re-examination if substantive laws have been erroneously construed and applied.”
41. The grounds for setting aside final judgments were as follows:
“...
1. wrongful application or interpretation of substantive laws;
2. significant breach of procedural rules which led to delivery of unlawful judgment, decision or ruling...”
34. There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1