ITEMID: 001-107829
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GÖBEL v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of P1-1
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Klaus Köpp;Mark Villiger;Renate Jaeger
TEXT: 7. The facts of the case, as set out by the parties, can be summarised as follows.
8. The disputed land, having a surface area of 759 sq.m., including a dwelling house and business premises, is situated in Erfurt, on the territory of the former German Democratic Republic (GDR).
9. Under a notarially-registered agreement of 4 October 1938, the S. brothers, who were Jewish, sold this land for 256.000 reichsmarks (RM) to an industrialist, M. D. The S. brothers subsequently National-Socialist Germany and took refuge in Australia.
10. After 1945, the land, which was situated in the Soviet-occupied zone, was temporarily requisitioned by the State.
11. On 28 February 1946 the President of the Land of Thuringia (GDR) appointed an administrator and indicated that the land, which had been sold under duress, fell within the scope of the Reparations Act (Wiedergutmachungsgesetz) of 14 September 1945. It was thus supposed to be returned to the former owners or to their heirs.
12. Subsequently the restitution procedure was suspended, with a view to the amendment of the Reparations Act and to the systematic expropriation of the plots of land concerned.
13. On 18 October 1948 the administrator of the disputed property entered into a friendly settlement on behalf of the S. brothers with the widow and heir of M. D., under which the latter would remain the owner of two thirds of the land and the S. brothers would obtain the remaining one third, whilst in return waiving any claims against Mrs D.
14. Subsequently the S. brothers challenged this friendly settlement, arguing that they had not been consulted.
15. After the death of Mrs D., the two thirds of the property still owned by her was left to a community of heirs.
16. Under a notarially-registered agreement of 11 April 1992, one of Mrs D.’s heirs sold an initial share in the joint property (Anteil an der Miterbengemeinschaft) to the applicant for 90,000 deutschmarks (DM) and a second share to another purchaser, M. P., for the same amount. The agreement indicated that the applicant had been provided with a description of the events leading to the current property regime of the property in question (“wie es zu den momentanen Eigentumsverhältnissen gekommen ist”) and that this description covered the period from 22 April 1904 to 25 September 1987.
17. On 30 October 1992 the applicant was registered in the land register as a member of the community of joint owners.
18. In two letters, of 8 September and 17 December 1992, the heirs of the S. brothers sought the restitution of the remaining two thirds of the land in accordance with section 1(6) of the law on the resolution of outstanding property issues – the Property Act (Gesetz über die Regelung offener Vermögensfragen - Vermögensgesetz) of 23 September 1990 (see relevant domestic law and practice, paragraph 30 below).
19. In a notarially-registered agreement of 15 March 1993 the heirs of the S. brothers sold one third of the disputed land for DM 3,700,000 to Mrs T. The same agreement contained a clause indicating that the heirs of the S. brothers were also selling the remaining two thirds of the land for DM 6,800,000 under the condition precedent that they obtained its restitution (the procedure was pending before the domestic authorities and courts – see paragraphs 23 et seq. below).
20. On 31 January 1997 the applicant acquired a second share in joint ownership from M. P., which was also registered in the land register on 4 May 1998. The Government pointed out that the applicant had not provided evidence that he had paid for that acquisition, whereas the applicant indicated that the value of that second share had also amounted to DM 90,000 as stipulated in the initial agreement of 11 April 1992, and that he had acquired that share from M. P. in exchange for debts owed to him by the latter.
21. On 17 June 1997, the applicant entered into a notarially-registered sales agreement for his two shares for a total sum of DM 600,000 to the company Global Pacific Investment Trust, having its registered office in Vaduz (Liechtenstein). This agreement indicated that the parties had released the notary from his obligation to inspect the land register, in spite of his warning that the existence of third-party rights could not entirely be ruled out.
22. The applicant alleged that, on account of the restitution of the disputed property, he had been unable to fulfil his undertakings under that agreement.
23. In a decision of 8 November 1995 the Office for the Resolution of Outstanding Property Issues (Amt für die Regelung offener Vermögensfragen) of the town of Erfurt initially rejected the request by the heirs of the S. brothers, on the ground that the friendly settlement reached on 18 October 1948 had ruled out any request for restitution. The heirs of the S. brothers challenged that decision.
24. In a decision of 13 October 1997 the Office for the Resolution of Outstanding Property Issues for the Land of Thuringia (“Office for the Land of Thuringia”) upheld their request and ordered the restitution of the remaining two thirds of the land. The Office took the view that there was a presumption that the disputed land had been sold under duress in 1938, because the sale price had not been appropriate and it had not been established that the sale would have taken place without the NationalSocialist Party’s “rule”. Moreover, restitution could not be ruled out, whether because of the friendly settlement reached in the former GDR under the pressure of forthcoming expropriations without the agreement of those concerned, or for any of the other reasons given in section 4 of the Property Act, namely an acquisition in good faith at the time of the former GDR (see relevant domestic law and practice, paragraph 30 below). Under section 7a(2) of the Property Act, the applicant was entitled to the payment of consideration (Gegenleistung) for a sum equivalent to the sale price of his shares in 1938 at the conversion rate of DM 1 for RM 20, thus DM 1,250.
25. The applicant then took the matter to the Gera administrative court, complaining that the current purchasers were not responsible for the situation under the National-Socialist regime, that the friendly settlement had been valid and that the Office’s decision infringed his right to the enjoyment of his possessions under Article 1 of Protocol No. 1.
26. In a judgment of 17 April 2003 the Gera Administrative Court upheld the decision of the Office of the Land of Thuringia, in all its aspects, relying on sections 2(1) and 3(1) taken together with 1(6) of the Property Act (see relevant domestic law and practice, § 30 below). It explained that the Property Act had to be regarded as a law controlling the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1, having the legitimate aim of ensuring reparation for the injustice committed against Jewish citizens. Even supposing that the applicant had a possession within the meaning of that Article, the relevant provisions of the Property Act had validly defined the scope of his property right (zulässige Inhaltsbestimmung des Eigentumsrechts). He therefore had only a restricted right (eingeschränkte Rechtsposition). The Administrative Court concluded that restitution was not ruled out under section 4(2) of the Property Act, because the applicant had not acquired title to its pecuniary value (kein Eigentum an dem Vermögenswert) and had acquired his share after the entry into force of the Property Act. Nor had he been able to dispose of (verfügen) his property, and for that reason was simply registered in the land register as a member of the community of joint owners of the inherited estate.
The Administrative Court did not give the applicant leave to appeal against that judgment or to lodge an application for review with the Federal Administrative Court.
27. In a decision of 29 January 2004, the Federal Administrative Court dismissed the applicant’s appeal against the Administrative Court’s decision not to give him leave to lodge an application for review.
28. In a decision of 31 March 2004 the Federal Constitutional Court, ruling in a committee of three, rejected the applicant’s constitutional appeal.
29. On 26 July 2004 the applicant filed a request for compensation under the Law of 27 September 1994 on compensation in accordance with the Property Act – the Compensation Act (Gesetz über die Entschädigung nach dem Vermögensgesetz – Entschädigungsgesetz – see relevant domestic law and practice, paragraph 31 below) and that procedure is still pending.
30. On 29 September 1990 the Property Act of 23 September 1990, which was also to be part of the Unification Treaty (Einigungsvertrag), came into force. Under the Treaty the Property Act would remain in force in Germany after the reunification of the two German States on 3 October 1990. The Act’s purpose was, in particular, to settle any conflicts relating to property on the territory of the GDR in a manner that was socially acceptable, in order to ensure long-term legal security in Germany.
Section 1(1) of the Property Act provides that it is applicable to rights in respect of property that was expropriated at the time of the GDR and section 1(6) provides that it also applicable to persons against whom proceedings were brought in Germany between 30 January 1933 and 8 May 1945 on racist, political, religious or ideological grounds (weltanschauliche Gründe) and who had consequently lost their property “by forced sale, expropriation or other means”. Sections 2 and 3 of the Act complement section 1.
Section 3(1) of the Property Act provides that any property that became “people’s property” will be returned on request unless excluded by the law. Section 3(2) provides that if a number of parties make a request for restitution concerning the same property, it is the party that was “first” injured which is thus entitled. That means that, as in the present case, when property was sold under duress during the National-Socialist period, then subsequently expropriated in the former GDR, the heirs of the original Jewish owners have a priority right to restitution.
Restitution is ruled out if it proves impossible in practice (section 4 (1) of the Act) or if the purchasers acquired the property in good faith between 8 May 1945 and 18 October 1989 (section 4 (2) of the Act). However, it is not excluded if, as in the present case, the acquisition took place after that date.
Section 30a(1), first sentence, of the Property Act provides that applications for restitution had to be lodged no later than 31 December 1992.
31. In the event of the property’s restitution, section 7a(2) of the Property Act provides that consideration equivalent to the original sale price must be paid to the new purchasers. The conversion rate is DM 1 for RM 20. In this connection, no distinction is made between the heirs of the initial purchaser in the National-Socialist era and a new purchaser, who, as in the present case, has more recently acquired joint-ownership shares from the community of heirs of the initial purchaser.
Section 7a(3b) provides that the heirs of the initial purchaser or the new purchaser may also opt for the payment of compensation in accordance with the Compensation Act of 27 September 1994 if the original sale price had been paid in reichsmarks (RM) in the National-Socialist era. The objective of this provision was to alleviate the effect of the devaluations resulting from two changes of currency since that time. Only those persons who had acted in a manner contrary to the principles of humanity or who had abused their position in the National-Socialist era were to be excluded from the possibility of obtaining such compensation.


ITEMID: 001-112282
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOCH v. GERMANY
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1943 and lives in Braunschweig.
8. The applicant and his late wife B.K., born in 1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K. had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff. She further suffered from spasms. According to the medical assessment, she had a life expectancy of at least fifteen more years. She wished to end what was, in her view, an undignified life by committing suicide with the applicant’s help. The couple contacted the Swiss assisted-suicide organisation, Dignitas, for assistance.
9. In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that would enable her to commit suicide at her home in Braunschweig.
10. On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1) (6) of the German Narcotics Act (Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which was aimed at securing the necessary medical care for the individuals concerned. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life.
11. On 14 January 2005 the applicant and his wife lodged an administrative appeal with the Federal Institute.
12. In February 2005 the applicant and his wife, who had to be transported lying on her back on a stretcher, travelled for approximately ten hours over a distance of more than 700 kilometres from Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed suicide there, assisted by Dignitas.
13. On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication. A right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which laid down the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide.
14. Finally, the Federal Institute “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection (Rechtsschutzbedürfnis). In particular, the applicant could not improve his own position through an appeal, as his legal position had not been the subject of the administrative proceedings.
15. On 4 April 2005 the applicant lodged an action for a declaration that the decision of the Federal Institute had been unlawful (Fortsetzungsfeststellungsklage) and that it thus had a duty to grant his wife the requested authorisation.
16. On 21 February 2006 the Cologne Administrative Court (Verwaltungsgericht) declared the applicant’s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. The Federal Institute’s refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law (Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention, as they did not affect the way in which the applicant and his wife lived together.
17. Moreover, the applicant could not rely on his wife’s rights, as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity.
18. Finally, the court held that in any event the refusal of the Federal Institute to grant the applicant’s wife the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court’s judgment in the case of Pretty (see Pretty v. the United Kingdom, no. 2346/02, § 74, ECHR 2002III), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse. Therefore, the fact that the provisions of the Narcotics Act permitted exceptions only for what was medically needed could not be considered disproportionate.
19. On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the applicant’s request for leave to appeal. It found, in particular, that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die had existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a right to facilitate another person’s suicide. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention.
20. On 4 November 2008 the Federal Constitutional Court (Bundesverfassungsgericht, no. 1 BvR 1832/07) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife. Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert another person’s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases, which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor’s own interests.
21. Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State.
Under Article 2 § 2 of the Basic Law every person has the right to life and physical integrity.
The Federal Constitutional Court has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94).
22. The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances, which are considered as drugs, including pentobarbital of sodium in Annex III.
According to section 4 (1) no. 3 (a) of the Narcotics Act it is permissible to obtain the substances listed in Annex III if they are prescribed by a medical practitioner. In all other cases, section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices.
In accordance with section 5(1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction.
Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified (section 13 (1)(1) of the Narcotics Act).
23. Section 216 of the Criminal Code reads as follows:
“(1) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years.
(2) Attempts shall be punishable”
Committing suicide autonomously is exempt from punishment under German criminal law. It follows that the act of assisting an autonomous suicide does not fall within the ambit of section 216 of the Criminal Code and is exempt from punishment. However, a person can be held criminally responsible under the Narcotics Act for having provided a lethal drug to an individual wishing to end his or her life.
According to the case-law of the Federal Court of Justice (compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a lifeprolonging treatment of a terminally ill patient with the patient’s consent does not engage criminal responsibility. This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device (Federal Court of Justice, judgment of 25 June 2010, 2 StR 454/09).
24. The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities. The codes are largely similar to the Model Professional Code for German Doctors, section 16 of which provides as follows:
“(1) Doctors may – prioritising the will of the patient – refrain from life-prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person.
(2) Doctors may not actively curtail the life of the dying person. They may not put their own interests, or the interests of third parties, above the well-being of the patient.”
Contraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine.
In connection with the demand for doctor-assisted suicide, the 112th German Medical Assembly of May 2009 resolved that doctors should provide assistance in and during the process of dying, but should not help patients to die, as the involvement of a doctor in suicide would contravene medical ethics.
25. Recommendation no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as follows:
“9. The assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill and dying persons in all respects:
a. by recognising and protecting a terminally ill or dying person’s rights to comprehensive palliative care, while taking the necessary measures:
(...)
b. by protecting the terminally ill or dying person’s right to self-determination, while taking the necessary measures:
(...)
iii. to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person. Furthermore, safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure;
iv. to ensure that a currently incapacitated terminally ill or dying person’s advance directive or living will refusing special medical treatments is observed...
v. to ensure that – notwithstanding the physician’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account, provided they do not violate human dignity;
vi. to ensure that in situations where an advance directive of living will does not exist, the patient’s right to life is not infringed upon. A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined.
c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person’s while:
(i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”;
(ii) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person;
(iii) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.”
26. Comparative research in respect of forty-two Council of Europe Member States shows that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide is strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide is not a criminal offence; however, Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards (compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011).
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-22214
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GAUDIO v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Leonardo Gaudio, is an Italian national, who was born in 1951 and lives in Bari. He is represented before the Court by Mr A. Amenduni, a lawyer practising in Bari.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the manager of the Italian monthly newspaper Il Gazzettino di Adelfia.
In December 1990 an article was published about Mr F.B., who was the mayor of Adelfia until August 1988. It was entitled “Mayor [F.]B. seeks reimbursement on the basis of false invoices” (“Il Sindaco [F.]B. chiede rimborsi con fatture false”). In the article the applicant expressed himself as follows:
“The Adelfia Council settled some entertainment expenses incurred on 4 September of the same year [1988] by the then mayor, the socialist F.B., on the occasion of the passing through Adelfia of the long-distance runner L. M. Two invoices do not correspond to the day of the celebration. (...) The first invoice is dated 7 August 1988. (...) If the celebration was held on 4 September only, how is it possible that the ceremony had taken place some months in advance and on different days?”
“Il Comune di Adelfia liquidava alcune spese di rappresentanza sostenute il 4 Settembre dello stesso anno [1988] dall’allora Sindaco, il socialista F.B., in occasione del passaggio da Adelfia del podista L.M. Due fatture non trovano alcun riscontro con il giorno in cui si e’ svolta la manifestazione (...) La prima fattura porta la data del 7 Agosto 1988 (...) Se la manifestazione si e’ svolta nella sola giornata del 4 settembre, com’e’ possibile che i convenevoli sono stati consumati con alcuni mesi di anticipo ed in giorni differenti?”.
Copies of the invoices were also published.
In 1988, the Adelfia City Council had been dissolved by a judgment of the Regional Administrative Court. On 5 August 1988 a Government Commissioner had been appointed and on 8 August 1988 Mr F.B., the mayor, had handed over to him.
On 24 September 1991, acting on a complaint by Mr F.B., the judge responsible for preliminary investigations committed the applicant for trial. He was accused of defamation.
On 31 January 1992 the District Court found the accused guilty of defamation within the meaning of Article 595 of the Criminal Code, granting mitigating circumstances. It sentenced the applicant to a fine of 800,000 Italian lire (ITL) and ordered him to pay costs and damages to be determined in separate proceedings. The court held that the defamatory nature of the article was evidenced principally by the fact that the applicant had associated the mayor’s name with a request for reimbursement of false invoices without the necessary checks of the truth of the events. In particular, the court noted that the applicant had only verified that Mr F.B. was Adelfia’s mayor at the time of the issue of the invoices and that if he had ascertained the truth more fully, the applicant would have noticed the errors in the Government Commissioner’s deliberation of 25 November 1988. In fact, the latter had wrongly linked both the invoices of 22 June 1988 and 7 August 1988 to the passing through of the long-distance runner on 4 September 1988. In reality that event had taken place on 7 August 1988 and the invoice of 22 June 1988 had been issued for a mineral-water supply to the City Council. The court held that the defamatory nature of the article was also evidenced by the fact that the article had been published more than two years after the event. The court added that the invoices could be not considered false because they had been issued for services which had really been provided. The court concluded that the applicant was not entitled to assert the right to report current events (diritto di cronaca) and comment on them (diritto di critica) because, in the absence of the truth of the facts and of their objective reference, the article appeared to be the result of a specific intention to muckrake in respect of a particular person with a defamatory aim.
The applicant appealed. Relying on the right to report current events and to comment on them, he submitted that the divulgation of the news was justified by the public interest in knowing how the Adelfia City Council was spending public money. He alleged that the article also contained a putative truth (putativamente vera) because he had examined the Government Commissioner’s deliberation and the enclosed documents. Consequently, he had acted in good faith in relation to the inexactitudes he was accused of.
Evidence was heard from the applicant who declared that before publication he had telephoned the long-distance runner who told him that he had not taken part in any celebration on 7 August 1988 because he had left Adelfia the day before.
In a judgment of 11 March 1996 the Court of Appeal acquitted the applicant because the facts did not amount to a crime. The court confirmed that the invoices could not be considered false because they had been issued for services which had genuinely been carried out. Nevertheless, it held that the applicant’s doubts and considerations about irregularities in the proceedings had been justified by adequate evidential support, namely the Government Commissioner’s deliberation, that is, a public document. Consequently the court held that the applicant had sufficiently ascertained the facts before publication and concluded that he had been acted in good faith about the inexactitudes he was accused of.
The General Prosecutor and Mr F.B. lodged an application with the Court of Cassation.
In a judgment of 10 October 1996 the Court of Cassation overturned the judgment of the Court of Appeal of 11 March 1996 and remitted the case to another division of the same court to re-examine it. The Court of Cassation held that the grounds of the Court of Appeal’s judgment of 11 March 1996 were affected by flawed logic, because it had confirmed that the invoices could not be considered false, but held that the applicant had sufficiently ascertained the facts before publication. The court alleged that the applicant, as the manager of the newspaper, could not have been unaware that on 4 September 1988, when the long-distance runner was passing through, Mr F.B. was no longer mayor, that the entertainment expenses could not be attributed to him and that the invoice expenses were genuine and not to be linked with the celebrations of 4 September 1988.
In a judgment of 27 June 1997 the Court of Appeal re-examined the case, upheld the District Court’s judgment of 31 January 1992 and awarded costs against the applicant. The court held that the absence of good faith was evidenced first by the fact that the title of the article associated the mayor’s name with a request for reimbursement of false invoices; second by the fact that the applicant, as the manager of the newspaper, could not have been unaware of the political events in Adelfia and, in particular, that Mr F.B. was no longer the mayor at the time of the celebrations of 7 August 1988; and finally, by the fact that the applicant had stated that Mr F.B. had asked for reimbursements regardless of the fact that Mr F.B.’s name was written neither on the invoices nor in the Government Commissioner’s deliberation.
The applicant lodged an application with the Court of Cassation. First, he stressed an error in the Court of Cassation’s judgment of 10 October 1996 in relation to the date on which the long-distance runner had been passing through (it was on 7 August 1988 and not on 4 September 1988). He also stressed an error in the Court of Appeal’s judgment of 27 June 1997 which had stated that on 7 August 1988 Mr F.B. was no longer the mayor, whereas he had given the court the documentary evidence that Mr F.B. had handed over to the Government Commissioner on 8 August 1988. In relation to the accusations of defamation, the applicant alleged that he had noticed the error in the Government Commissioner’s deliberation about the date of the long-distance runner celebrations and about the City Council session of 22 June 1988 which the supply of mineral-water was destined to, because on that date no session had taken place. The applicant also alleged that before publication he had telephoned the long-distance runner who told him that he had never taken part in the celebration of 7 August 1988 because he had left Adelfia the day before. Finally, the applicant held that his aim was not to defame anyone, but to inform readers how public money was being spent by public authorities.
In a judgment of 27 November 1997, deposited with the registry on 18 February 1998, the Court of Cassation dismissed the application and upheld the Court of Appeal’s decision of 26 June 1996. The court held that the applicant’s allegations were irrelevant because he had not, in any case, given evidence that the invoices were false and that they had to be attributed to Mr F.B. Consequently, the court declared the appeal inadmissible and sentenced the applicant to a fine of ITL 1,000,000 and awarded costs against him.


ITEMID: 001-58848
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2000
DOCNAME: CASE OF MENNITTO v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. On 15 March 1984, pursuant to Law no. 833/78, which created the National Health Service and required regional governments, inter alia, to adopt appropriate measures for the prevention, screening and treatment of disabilities, the Campania Regional Council enacted Regional Law no. 11 (“the Regional Law”). Article 26 of the Regional Law authorised local public health services (Unità Sanitarie Locali – “USLs”) to grant allowances for the first three years after its entry into force to families caring for disabled members of their household directly in their own homes.
8. On 5 December 1989 the Management Committee (Comitato di gestione) of Benevento USL no. 5, applying Article 26 of the Regional Law, decided that 134 persons, including the applicant's son, satisfied the conditions entitling their families to payment of the allowance. The decision authorised only distribution to qualifying beneficiaries, depending on the date when they had been recognised as 100% disabled, of the sum of 35,328,240 Italian lire (ITL) for the year 1985; the applicant received ITL 84,720 in respect of the months of November and December 1985.
9. By a notice to pay served on 12 June 1993, the applicant asked Benevento USL no. 5 to grant him the allowance. He pointed out that the placing of his son's name on the list of persons who satisfied the conditions required by the Regional Law for entitlement to the allowance had not been followed by the payment provided for in Article 26 of the Regional Law.
10. As the USL did not reply, the applicant brought proceedings against it in the Campania Regional Administrative Court (“the RAC”) on 2 August 1993. Relying on Article 26 of the Regional Law, he sought a declaration that the lack of an answer from the USL – amounting to a refusal – had been unlawful and that he was entitled to the allowance in question for the years 1985, 1986 and 1987.
11. On 13 August 1993 the applicant requested that a date be fixed for the hearing. On 27 July 1995 he submitted an urgent request for a hearing date to be fixed, observing, inter alia, that the USLs were to be restructured on 31 December 1995 and that Italian legislation made no provision for financial continuity between the old entities and the new ones. He was therefore asking for his case to be set down because after the end of 1995 he would no longer be able to obtain the allowance he sought.
In a pleading filed on a date which has not been specified, USL no. 5 submitted, among other arguments, that it did not have capacity to defend the action (legittimazione passiva), on the ground that only the Region was required to make available the financial resources needed for payment of the allowance. It maintained that the applicant, who had received the allowance for the year 1985, within the limits of the budgetary appropriations, should have challenged the decision of 5 December 1989, but as he had not done so it had become final and the amount paid could no longer be called into question.
12. The case was heard on 14 January 1997. In a judgment of 14 January and 4 February 1997, the text of which was deposited with the registry on 3 March 1997, the RAC observed in the first place that the applicant was not required to challenge the decision in issue as it did not contain a refusal to pay the full amount of the allowance. On the contrary, there had been two valid alternative ways of interpreting the USL's conduct. For example, the applicant could have thought the USL was making a payment on account, while reserving final determination of the amount to be paid for a later assessment, or that it had decided to pay a larger sum with an initial instalment to be followed by others. On the merits, the RAC held that, once it had been verified that the statutory conditions for entitlement to the allowance had been satisfied, it should be paid in the quantum provided for in Article 26. The administrative authority thus had no discretionary power and its role should have been restricted to making a purely arithmetical calculation. The applicant had duly established that he was the father of a 100% disabled civilian living with his family; moreover, his son's name was the 95th in the list included in the decision of 5 December 1989. The USL should therefore have ruled on his application. However, as the Court of Cassation had stated when determining a dispute over jurisdiction (judgment no. 8297 of 11 October 1994), the applicant could not claim to have a “personal right” (diritto soggettivo perfetto) but only a “legitimate interest” (interesse legittimo), that is to say an individual position indirectly protected as far as was consistent with the public interest, which would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid. The RAC therefore dismissed the applicant's action in so far as it concerned recognition of his entitlement to the allowance in question.
13. On 20 June and 5 July 1997 respectively USL no. 5 and the Campania Regional Council appealed to the Consiglio di Stato. By a decision of 30 August 1997 the Consiglio di Stato stayed execution of the first-instance judgment.
14. On 14 November 1997 the Director-General of the ASL (Azienda Sanitaria Locale), the body which had taken the place of the USL, approved the text of a friendly settlement reached on 7 November between the administrative authority and the applicant, among others. Noting that in numerous similar cases the competent courts had nearly always recognised that the plaintiffs were entitled to the allowance for the years 1985-87, further noting that the settlement had been signed after it had been verified that the conditions required by the Regional Law had been satisfied, and having regard to the fact that the settlement was about to put an end to a high-profile case which would in all probability have gone against the administrative authority, given the line the courts had taken on the question, so that the public purse would be saved billions of lire, the Director-General ordered payment of the allowance. By a judgment of 25 November 1997, the text of which was deposited with the registry on 27 December 1997, the Consiglio di Stato took formal note of the friendly settlement the parties had reached and struck the case out of its list.
15. The allowance for the families of disabled civilians is governed by Article 26 of Regional Law no. 11 of 15 March 1984, the relevant parts of which provide:
“For three years after the entry into force of the present Law, local public health services shall be authorised to grant an allowance to families who undertake to provide direct care for persons suffering from mental or physical disabilities who are incapable of attending to their own primary needs and require constant assistance.
The allowance shall be granted in pursuance of the following objectives:
(a) returning to their families disabled people formerly in full-time institutional care;
(b) encouraging the practice of caring for disabled children within the family ...;
(c) socialising the disabled person and improving his relations with those around him;
(d) improving the lives of the families of disabled persons;
(e) creating a favourable environment for the life of the disabled person;
...
The amount of the family carers' allowance shall be 25% of the daily charge for attendance on persons hospitalised full-time.”
16. The Court of Cassation has given a number of rulings on the carers' allowance in connection with appeals on points of law concerning disputes over jurisdiction.
17. For example, in judgment no. 5386 of 12 May 1993 it held that, where the jurisdiction of the ordinary courts had been recognised in a decision which had become final, disputes concerning Article 26 of the Regional Law fell into the category of disputes over mandatory assistance, which came within the jurisdiction of the magistrate's court, sitting as an employment tribunal.
In judgment no. 8297 of 11 October 1994 it held that the administrative courts had jurisdiction over disputes about entitlement to the allowance, ruling that the beneficiary could not claim to have a personal right but only a legitimate interest, that is to say an individual position indirectly protected as far as was consistent with the public interest, and that this would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid.
The appellants in these two cases were in a similar situation to Mr Mennitto, but had applied to the ordinary courts.
18. The Campania RAC has upheld on many occasions the claims of other persons caring for disabled relatives.
In its judgment no. 251, deposited with the registry on 16 May 1995, it ruled:
“[The Court] declares that the claimant is entitled to receive the allowance provided for in Article 26 of [the Regional Law] ...;
Orders the respondent authority to pay the sum in question ...”
In that decision and in others (such as judgment no. 310 of 4 July 1995 and judgments nos. 323 and 324 of 6 February and 11 June 1996) the RAC gave the following reasons for its ruling:
“[Article 26 of the Regional Law] makes adoption of the decision to grant the allowance subject, among other requirements, to verification that beneficiaries satisfy the relevant qualifying conditions. When such verification had been made, determination of the amount to be paid should have required no more than a simple arithmetical calculation ...
In the light of these principles ..., exercise of the discretionary power pleaded by the USL has no bearing on the case, since otherwise it would be possible for an administrative decision to replace an assessment already ineluctably made by the legislature ...”
After finding that G.C. (the relative of the claimant in that case) was 100% disabled and required constant assistance, which was why, following tests carried out by the respondent authority, his name had been placed on the list of qualifying beneficiaries, the RAC ruled that there was an obligation to pay the allowance.
19. The Consiglio di Stato, ruling on the question of determination of the amount of the allowance, held that the Region could not be absolved from the obligation to make available to each USL a sum earmarked for families providing direct care to disabled persons and sufficiently large to ensure that each of these families would be able to receive the amount of allowance prescribed by law (judgment no. 766 of 3 October 1994).
In its judgment no. 172 of 17 February 1999 the Consiglio di Stato ruled that the amount of the allowance for families caring directly for disabled persons, in so far as it was fixed by law, could not suffer any reduction by the administrative authority, which in this matter had no discretion whatever with regard to quantum, and that that conclusion was not in contradiction with the nature of the legitimate interest of the disabled person's family.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102328
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KHALIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Vladimir Ivanovich Khalin, is a Russian national who was born in 1963 and lives in Staryy Oskol. He was represented before the Court by Mr A. Malykhin, a lawyer practising in Staryy Oskol. The Russian Government (“the Government”) were represented by Mr G. Matushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant repeatedly sued the regional social authorities for payment of various benefits on account of his participation in the cleaning-up operation following the Chernobyl nuclear disaster. In 2000 – 2005 the Staryy Oskol City Court of the Belgorod Region delivered five judgments in the applicant’s favour, awarding him several lump-sums in arrears and certain regular monetary payments. The judgments became final but their enforcement was delayed by the authorities.
On 15 January 2009 the Court delivered the Burdov (no. 2) pilot judgment cited above. It ordered the respondent State to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. It also ordered the Russian Federation to grant adequate and sufficient redress, within one year from the date on which the judgment became final, to all victims of non-payment or unreasonably delayed payment by State authorities of a judgment debt in their favour who had lodged their applications with the Court before the delivery of the present judgment and whose applications had been communicated to the Government under Rule 54 § 2 (b) of the Rules of the Court.
The present case was communicated to the Government on 4 June 2008. The Court’s proceedings in the case were adjourned until 4 May 2010 pending the implementation of the pilot judgment (see Burdov (no. 2), cited above, § 146, and point 8 of the operative part). The applicant was informed accordingly.
On 26 April 2010 the Staryy Oskol City Court of the Belgorod Region granted the applicant’s claim for damages resulting from delayed enforcement of the five judgments in his favour. It found that the five judgments had been fully enforced with various delays ranging between one and seven years, and ordered the authorities to pay a total of 235,000 Russian Roubles (approximately 6,000 Euro) in compensation for non-pecuniary damage. In so deciding, the court relied on Article 46 of the Russian Constitution, Articles 151 and 1069 of the Civil Code, and on the Convention provisions, as interpreted in the Court’s case-law.
On 22 June 2010 the judgment was upheld on appeal by the Belgorod Regional Court and became final.
On 24 August 2010 the court award was paid to the applicant.


ITEMID: 001-98253
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RANJBAR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 8. The applicants were born in 1972, 1982, 1985, 1978 and 1983 respectively and currently live in Sweden.
9. The applicants fled Iran and entered Turkey illegally on various dates in 2005 and 2006.
10. On various dates between 19 April 2005 and 3 October 2006, the applicants appeared at the office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey, which recognised their refugee status and issued them with refugee certificates on 24 August 2007.
11. On unspecified dates the applicants lodged asylum applications with the Turkish authorities and sought residence permits. They were questioned twice by police officers from the Aliens Department on various dates in November 2006 for an assessment of their asylum request. During the questioning the applicants stated that they had been members of different illegal organisations and had been involved in anti-regime activities in Iran. They had either been detained on numerous occasions or sentenced to imprisonment and/or punishment by lashing. They all maintained that they would face a personal risk of ill-treatment or death if they were to be returned to Iran.
12. The applicants were permitted to live in Van pending the asylum proceedings and were allowed to leave the city boundaries subject to specific permission. In this connection one of the applicants (Mostaba Naderani Vatanpur) was issued with a permit allowing him to travel to Ankara between 22 and 31 August 2007 for various resettlement interviews.
13. On an unspecified date the applicants' asylum request was rejected by the authorities on the ground that they had not complied with the relevant criteria. In respect of the fourth applicant, the interview forms indicated that the authorities did not find the applicant's replies credible and considered that he had left his country for higher economic standards.
14. On an unspecified date the applicants were apprehended and held at the Van Security Directorate for an undetermined period before they were notified of the deportation orders on 22 August 2007 at 12.30 p.m. The deportation orders bear the signatures of the applicants and a translator. The applicants were deported to Iraq on the same day.
15. Upon their arrival in Iraq the applicants claimed to have been held in detention for about a month. They then had lived in Northern Iraq for some five months before they were resettled in Sweden on 10 February 2008.
16. A description of the relevant domestic law can be found in the Court's judgment in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-69616
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TRUBNIKOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 2 (obligation to protect the right to life);Violation of Art. 2 (obligation to provide an effective investigation);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 7. The applicant was born in 1940 and lives in the village of Khokholskiy in the Voronezh Region. He is the father of Viktor Trubnikov, who was found dead on 13 September 1998 in a punishment cell of the prison where he had been serving his sentence. He had died of asphyxia caused by hanging. At the time of his death, Viktor Trubnikov was 26 years old and was due to be released 21 days later.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 8 July 1993 Viktor Trubnikov was remanded in custody in connection with criminal charges brought against him.
10. On 30 August 1993 Viktor Trubnikov was convicted of manslaughter and sentenced to seven years’ imprisonment. He was serving his sentence in the correctional labour colony (исправительно-трудовая колония) OZH 118/8 in Rossosh, Voronezh Region. He expected to be released on probation on 4 October 1998.
11. According to the records submitted by the Government, on three occasions in 1994-1995 Viktor Trubnikov had been found to be under the influence of alcohol and placed in a punishment cell. During his second disciplinary confinement, Viktor Trubnikov inflicted bodily injury on himself, and during his third disciplinary confinement he attempted suicide (see the section entitled “Medical records”).
12. Following the suicide attempt, Viktor Trubnikov was placed under regular psychiatric supervision.
13. On 13 September 1998 a prison football team, of which Viktor Trubnikov was a member, took part in a match outside the prison.
14. On return to the prison after the match, Viktor Trubnikov was found to be under the influence of alcohol. At 7.15 p.m. a prison officer placed him in a punishment cell where he was to be kept in solitary confinement before his inspection by the prison warder the following morning. At 8.20 p.m. Viktor Trubnikov was found dead, hanged by the sleeve of his jacket with another sleeve attached to a water pipe.
15. That evening the prison governor conducted an inquest. He examined six documents: (i) the order to place Viktor Trubnikov in the punishment cell, (ii) the disciplinary offence report, (iii) the report drawn up on finding Viktor Trubnikov dead, (iv) the site inspection report, (v) the site plan and (vi) the post mortem report. On the basis of this file, he stated that Viktor Trubnikov had hanged himself using the sleeve of his jacket and ordered that no criminal investigation be opened, as there had been no appearance that a crime had been committed. A reference was also made to his attempted suicide in June 1995, and it was stated that he had had suicidal tendencies.
16. On 15 September 1998 an autopsy was performed on the body. In October 1998 a post mortem report was issued according to which abrasions and bruises were found on the nose, hand, forearm and elbow. The expert came to the conclusion that death had been caused by pressure on the neck through hanging.
17. The applicant was informed orally that his son had committed suicide. He asked the prison authorities to initiate a criminal investigation. The authorities did not inform him that a decision had already been taken not to do so.
18. In March 1999 the applicant requested the Voronezh Regional Prosecutor’s Office to provide him with information about the circumstances of his son’s death. The request was transmitted to the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions.
19. On 8 April 1999 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions informed the applicant of the decision not to investigate the circumstances of Viktor Trubnikov’s death in criminal proceedings. The applicant was informed that his son had had a record of good conduct, that he had been rewarded on several occasions and that no conflict had been registered between him and other inmates or the prison administration. He was also informed that, in the circumstances, the decision not to institute a criminal investigation was lawful and well-founded.
20. On 16 April 1999 the Voronezh Regional Prosecutor’s Office informed the applicant of the refusal to institute criminal proceedings and invited him, on 30 April 1999, to view the case file concerning the death of his son.
21. On 30 April 1999 the applicant arrived at the prosecutor’s office for the appointment to view the file, but the officer in charge was absent and he could not gain access to the file.
22. On 26 June 1999 the applicant received a copy of the prison governor’s decision of 13 September 1998.
23. On 18 September 2000 the applicant lodged a request with the Rossoshanskiy District Court of the Voronezh Region that it order a criminal investigation into his son’s death. The court declined jurisdiction in the matter, however, on 2 October 2000. It stated that the institution of criminal proceedings fell within the competence of the prosecutor’s office.
24. After the case had been communicated to the respondent Government by the Court, the Voronezh Regional Prosecutor’s Office annulled the decision of 13 September 1998 on 5 February 2002 and instituted a criminal investigation into Viktor Trubnikov’s death.
25. On 23 March 2001 the applicant brought proceedings before the same district court to have the refusal of the prison governor to institute criminal proceedings declared unlawful.
26. On 20 March 2002 the Rossoshanskiy District Court of the Voronezh Region held that the decision of 13 September 1998 was unlawful. At the same time it discontinued the examination of the applicant’s claim as no longer necessary, given the prosecutor’s decision of 5 February 2002 which had already dealt with the issue.
27. In June 2002 two forensic examinations were carried out. First, experts were appointed to conduct a new autopsy of the body. Secondly, another group of experts carried out a posthumous examination of Viktor Trubnikov’s psychiatric and psychological condition.
28. The autopsy resulted in substantially the same findings as the first post mortem report, namely, that the death had been caused by mechanical asphyxia (more specifically, strangling), and established a mediumdegree alcoholic intoxication at the time of death.
29. On 27 June 2002 the posthumous psychiatric report was submitted. The experts concluded that at the time of his death Viktor Trubnikov had not been predisposed to suicide on account of any long or short-term psychiatric disorder. However, they concluded that he had been under the influence of alcohol and that it could have triggered his decision to commit suicide.
30. During the investigation the following witnesses were examined and gave the following testimonies:
(i) Six officers who were on duty at the prison entrance when Viktor Trubnikov returned to the prison after the football match, testified that he had been drunk and had behaved aggressively. He therefore had to be isolated in the punishment cell. They all stated that no force had been applied to him.
(ii) Two inmates who had been on the same football team testified that Viktor Trubnikov had been under the influence of alcohol on their return from the match, and that was why he had been stopped by the prison warders at the prison entrance. They stated that there had been no threats or violence at the prison entrance.
(iii) Three other inmates who had known Viktor Trubnikov well testified that he had had good relations with other inmates and warders and that there had been no conflict between him and the prison administration.
(iv) Six officers who had been on duty in the punishment ward when Viktor Trubnikov died, testified that he had been placed in the cell at about 7.30 p.m. and had been found dead during the warder’s round at 8.15 p.m. They stated that first aid had been administered, but that it had been too late.
(v) Inmates L. and M. testified that they had been confined to punishment cells next to Viktor Trubnikov. M. stated that at first they had communicated through the wall, but then Viktor Trubnikov had gone quiet. Neither of them had heard any noises or screams.
(vii) Two officers testified that they had witnessed Viktor Trubnikov’s previous suicide attempt in 1995 and administered first aid to him. They considered that that attempt had not been a genuine suicide, but that he had rather been trying to attract attention and demonstrate his independence.
(viii) Ms. K, the psychiatrist who had supervised Viktor Trubnikov, testified that his first suicide attempt had been demonstrative and had not reflected a genuine wish to die. She also considered, on the basis of her observations, that he had been likely to make another attempt, also demonstrative and not aimed at causing death, and that the probability of such behaviour increased under the influence of alcohol.
31. On 10 October 2002 the Voronezh City Special Prosecutor’s Office supervising penitentiary institutions terminated the criminal investigation, having established that Viktor Trubnikov had committed suicide.
32. On 3 March 2003 the applicant received a copy of the termination order of 10 October 2002.
33. The Government submitted a collection of medical records concerning Viktor Trubnikov’s condition throughout his detention. In so far as the copies are legible, they contain the following relevant entries.
34. On 13 July 1993, upon his arrest, Viktor Trubnikov was examined by a psychiatrist and found to be in good health.
35. On 10 September 1994 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell.
36. On 21 March 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he inflicted injuries on himself, recorded as follows:
“As a protest against being put in a punishment cell [Viktor Trubnikov] inflicted three horizontal cuts on his abdomen: measuring 10x2 cm, 8x2 cm and 6x1 cm, each about 1.5 cm deep. Minor bleeding ...”
37. From 21 to 27 March 1995 Viktor Trubnikov was kept in the medical block for treatment of the self-inflicted wounds.
38. On 22 June 1995 an alcohol test revealed that Viktor Trubnikov was under the influence of alcohol. He was placed in a punishment cell where he attempted to hang himself, as recorded:
“Emergency call for an attempted suicide. Trubnikov detained in the punishment cell No. 22 attempted to hang himself by a string attached to a water pipe ... Consultation with a psychiatrist is required.”
39. Following that incident, Viktor Trubnikov was supervised by a psychiatrist, Ms K., who made the following entries in the records.
On 23 June 1995:
“Complains about depression, unwillingness to live, weakness, insomnia, irritability. Psychologically [stable]. Enters into contact. Orientation in space and time, as regards own personality is correct. Depressed overall. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed at the time of examination. Diagnosis: short-term depressive reaction; suicide attempt. (i) [prescription medicines]; (ii) psychotherapy.”
On 24(29) June 1995:
“Conscious. Enters into contact. Depressed. Thinking is consistent. Demonstrative behaviour. Explains the suicide attempt by saying that he is ‘fed up with a life like that’. The attitude to the suicide attempt is not self-critical. Memory and reason are intact. No pathological psychiatric condition. Diagnosis: short-term depressive reaction. Suicide attempt. Fixation behaviour. Continue treatment.”
On 30 June 1995:
“Has no medical complaints. His mood is steady and positive. Goes in for sport. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms can be observed. Self-critical attitude to the recent suicide attempt. No acute psychiatric symptoms are observed. Prescribed rational psychotherapy. The next visit is scheduled for 25 December 1995.”
On 25 December 1995:
“Has no medical complaints. Mood is steady. Demonstrative behaviour. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: fixation behaviour. Prescribed rational psychotherapy. The next visit is scheduled for 25 June 1996.”
On 25 June 1996:
“Complains about depression, weakness, irritability, insomnia, inability to work. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia.”
On 25 December 1996:
“Has no medical complaints. His mood is steady. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. Memory and reason are intact. Demonstrative behaviour. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 June 1997.”
On 25 June 1997:
“Mood is changeable. Thinking is consistent. Self-critical attitude to the suicide attempt in the past. No acute psychiatric symptoms are observed. Diagnosis: hyposthenic form of neurasthenia. The next visit is scheduled for 25 December 1997.”
On 25 December 1997:
“Complains about depression, weakness, insomnia, irritability. No acute psychiatric symptoms are observed. Depressed. The next visit is scheduled for 25 June 1997.”
The next entry is dated 25 June 1997, although it immediately follows the above record of 25 December 1997:
“Condition has improved. Mood has stabilised. Thinking is consistent. Memory and reason are intact. No acute psychiatric symptoms are observed. Diagnosis: the same. The next visit is scheduled for 25 December 1998.”
The next entry is dated 17 February 1997, although it immediately follows the above record dated 25 June 1997:
“Has no medical complaints. Mood is steady, depressed. No acute psychiatric symptoms are observed. Diagnosis: depressive reaction. Attempted suicide in the past. No complaints at the time of examination. [Fixation]. The next visit is scheduled for 17 August 1998. Rat[ional] psychotherapy.”
40. On 8 August 1998 a psychological test revealed, inter alia, a potential psychiatric condition, a tendency towards impulsive reactions and, possibly, a tendency towards conflict with others.
41. The last record in Viktor Trubnikov’s lifetime was made on 17 August 1998:
“Complains about depression, weakness, insomnia, irritability. Enters into contact. Orientation is correct. Depressed. Thinking is consistent. No acute psychiatric symptoms are observed. No suicidal thoughts. Diagnosis: short-term depressive syndrome. The next visit is scheduled for [unclear].”
42. On 20 February 2002 the deputy prison warder in charge of the prison medical office issued a certificate that Viktor Trubnikov had been under permanent psychiatric supervision, having been diagnosed as suffering from neurasthenia and a psychopathic condition with depressive reactions.
43. Article 20 of the Constitution of the Russian Federation protects the right to life.
44. The Health Care (General Principles) Act of 22 July 1993 provides that persons serving a sentence in prisons are entitled to medical assistance at the State’s expense and, as the case may be, at institutions run by the general public health service (Section 29).
45. The Law on Penitentiary Institutions of 21 July 1993 provides that penitentiary institutions are responsible for inmates’ security and health care (section 13).
46. Article 18 of the 1997 Penitentiary Code, as it read at the material time, provided that inmates suffering from a psychiatric disorder which did not affect their capacity to serve a criminal sentence could be subjected to medical treatment at the penitentiary institutions. The authorisation of a competent court was required for any such treatment.
After recent amendments, the same provision specifies that such inmates include persons who pose a danger to others or themselves. The provisions currently in force require the penitentiary authorities to identify such inmates and to apply for a court order imposing medical treatment on them.
47 The 1960 Code of Criminal Procedure, which was in force at the material time, required that a competent authority institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3, 108-09).
48. No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed to a higher-ranking prosecutor or to a court (Articles 113 and 209).
49. During criminal proceedings, persons who had been granted victim status could submit evidence and file applications, had full access to the case file once the investigation was complete, and could challenge appointments and appeal decisions or judgments in the case. At an inquest, the close relatives of the deceased were to be granted victim status (Article 53).
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 2