ITEMID: 001-98022
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GULTYAYEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1951 and lives in Moscow.
6. At the material time the applicant held the position of Head of the Department of Justice of the Sakhalin Region (начальник Управления юстиции Сахалинской области).
7. On an unspecified date an external audit commenced in the said Department and embezzlement of budgetary assets was subsequently established.
8. On 25 February 2000 criminal proceedings were instituted in this connection.
9. On 28 February 2000 at 8 a.m. the applicant retained a lawyer.
10. On 28 February 2000 at 8:30 a.m. the applicant was arrested and placed in custody. Being questioned as a suspect in the case, the applicant availed herself of the right to remain silent and applied for release on bail or subject to personal surety.
11. On 29 February 2000 the investigator in charge refused to release the applicant, stating that, according to Article 101 of the Code of Criminal Procedure, “a measure of restraint could only be changed in the circumstances when it was no longer needed” and that “there were no such circumstances” in the applicant's case.
12. On the same date the applicant resigned from her position.
13. On 1 March 2000 the investigator in charge remanded the applicant in custody. The order, which was approved by a deputy prosecutor of the Sakhalin Region, referred to the danger of the applicant's absconding, the risk of her obstructing the establishment of the truth and influencing the witnesses who had been her subordinates, and to the gravity of the charges against her.
14. The applicant's request to release her subject to the imposition of another measure of restraint was examined and refused by the investigator on 2 March 2000.
15. On 6 March 2000 the applicant's lawyer appealed to the court against the applicant's pre-trial detention.
16. The application was examined by judge A. of the Yuzhno-Sakhalinsk Town Court (“the Town Court”) on 10 March 2000. At the hearing the applicant and her counsel reiterated their request for the applicant's release in view of her poor health, the fact that she had family commitments and a good reference from her former place of work. The judge confirmed the lawfulness of the applicant's remand in custody, having based this decision on “the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released”.
17. According to the applicant, the evidence referred to by Judge A. was a transcript of an audio tape recording of telephone conversations of another suspect, K. During one such conversation K. stated that “on Monday Nina Ivanovna will leave forever”.
18. On 12 April 2000 the Sakhalin Regional Court (“the Regional Court”) upheld the decision of 10 March 2000 on appeal.
19. Meanwhile, on 7 March 2000, formal charges of embezzlement and abuse of power had been brought against the applicant. Since the applicant's counsel was unable to attend the police station that day, the investigating authorities appointed another lawyer to assist her. However, in the absence of her counsel, the applicant refused to read and sign the decision to charge her.
20. On 15 March 2000 the applicant's lawyer challenged the decision of 7 March 2000 before the court, claiming that the applicant's right to defence had been violated. He also requested the court to release the applicant pending trial.
21. On 4 April 2000 judge A. of the Town Court disallowed the above complaint, having noted that the allegations advanced by the applicant's representative had already been examined and rejected by the courts during the first judicial review of the applicant's detention.
22. On 3 May 2000 the Regional Court set aside the above decision and discontinued the proceedings in respect of the complaint of 15 March 2000. The court noted, inter alia, that the applicant was entitled to appeal against the alleged infringement of her right to defence at the trial stage.
23. On 19 April 2000 the regional prosecutor extended the applicant's detention until 25 June 2000 on the ground that she might flee the trial or put pressure on witnesses while at liberty.
24. On 17 May 2000 the applicant challenged this order before the court, and requested to be released. She maintained, in particular, that she could not hinder the investigation or influence the witnesses, since the audit had terminated on 13 April 2000. The applicant also referred to poor conditions of her detention and deterioration of her health.
25. On 25 May 2000 judge A. of the Town Court dismissed the applicant's complaint as unfounded, with reference to the gravity of the charges, “the applicant's personality” and “the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released”. The judge also noted that the investigating authorities had produced a medical report stating that the applicant had no need of medical treatment.
26. In her appeal against the decision of 25 May 2000 the applicant stated, inter alia, that Judge A. should have been disqualified from reviewing her detention, as this judge had already considered and rejected her applications for release on two previous occasions.
27. On 25 June 2000 the Regional Court upheld the decision of 25 May 2000. With respect to the applicant's argument concerning Judge A., the court noted that the domestic law entitled a judge to examine a repeated complaint about the lawfulness of detention.
28. On 30 May 2000 a deputy prosecutor of the Sakhalin Region refused the applicant's request for release.
29. On 2 June 2000 the applicant was charged with a number of additional counts relating to embezzlement, abuse of power and forgery.
30. On 13 June 2000 the preliminary investigation was terminated and the applicant and her lawyer began studying the case file.
31. On 21 June 2000 the regional prosecutor ordered the extension of the applicant's detention until 10 August 2000.
32. The applicant appealed against the prosecutor's decision, claiming that she was unable to obstruct the establishment of the truth or influence the witnesses, since the investigation had already terminated. She also referred to her poor state of health.
33. On 24 July 2000 judge B. of the Town Court dismissed the applicant's complaint, holding that her detention was “in accordance with law” and necessary in view of the seriousness of the charges and the applicant's personality. The judge also took note of medical certificates produced by the applicant's lawyer as well as the aforementioned medical report adduced by the investigating body, and found the applicant's allegations that she was in poor health unsubstantiated.
34. On 13 September 2000 the Regional Court upheld the above decision on appeal. The court noted that the applicant was charged with a serious criminal offence and its severity alone could, according to Article 96-2 of the Code of Criminal Procedure, permit her continued detention.
35. On 8 August 2000 the applicant's counsel lodged a complaint against the investigator in charge, requesting the court to order the applicant's inpatient examination by an independent medical authority.
36. On 15 August 2000 Judge B. of the Town Court declined jurisdiction to examine the complaint, stating that it fell within the competence of the prosecutor. This decision was upheld on appeal by the Regional Court on 25 October 2000.
37. In the meantime, on 7 August 2000, the regional prosecutor extended the period of the applicant's remand in custody until 25 August 2000.
38. On 15 August 2000 the applicant appealed to the court against the prosecutor's order. Her complaint was assigned to Judge A. of the Town Court.
39. The applicant sought the withdrawal of the judge. On 18 August 2000 Judge A. dismissed the challenge.
40. At the hearing on 21 August 2000 the applicant and her defence counsel claimed that the preliminary investigation had been completed, that the applicant had finished studying her case file, and that therefore the investigating authorities had no reasons to believe that the applicant might flee or obstruct the establishment of the truth if at large. Moreover, the applicant posed no danger to the public and suffered from various health problems, which required proper medical treatment.
41. Having heard the parties, Judge A. found that the applicant should remain in custody, on account of the gravity of the charges and the risk of her absconding. The judge further rejected the applicant's complaints about her health as groundless. This decision was upheld on appeal by the Regional Court on 13 September 2000.
42. On 23 August 2000 the investigator refused to release the applicant, making a general reference to the absence of any circumstances proving that her detention was no longer needed.
43. On 25 August 2000 the applicant's case was forwarded to the Town Court for examination.
44. On 4 September 2000 Judge K. of the Town Court remitted the case for a further investigation and stated that the applicant should remain in custody in view of the seriousness of the charges.
45. The applicant appealed against the above decision in so far as it concerned her detention.
46. On 25 October 2000 the Regional Court dismissed the appeal.
47. Meanwhile, on 22 August 2000 the deputy Prosecutor General had authorised the applicant's detention until 25 October 2000. This order was served on the applicant on 15 September 2000.
48. On 17 September 2000 the applicant challenged the extension of her custody period before the Town Court, complaining, in particular, that she had not been notified of the order of 22 August 2000 in time.
49. At the hearing on 25 September 2000 the applicant also referred to the poor state of her health and the absence of any risk that she might abscond or hinder the investigation, which was at an end. Her arguments were examined and rejected as unfounded. Having acknowledged the fact that the order of 22 August 2000 had not been served on the applicant in due time, the court held that this fact did not affect the legal force of the extension order or the lawfulness of the applicant's detention. It therefore ordered the applicant's continued detention, with reference to the gravity of the charges against her. On 25 October 2000 the Regional Court upheld the first-instance decision.
50. On 16 October 2000 the applicant requested the investigator to release her.
51. On 17 October 2000 the investigator informed the applicant that there were no reasons to release her.
52. On 20 October 2000 the case was again transferred to the Town Court for examination on the merits.
53. On 4 November 2000 Judge K. of the Town Court scheduled a hearing in the applicant's case and held that “in view of the gravity of the charges [against the applicant] the measure of restraint applied to her should remain unchanged”. The decision did not specify the time-limit for the applicant's detention, nor did it refer to any other matters regarding the lawfulness of her detention.
54. On 17 November 2000 the applicant appealed against the above decision in so far as it related to her detention. She claimed that between 25 October 2000, when the period of her remand in custody had expired, and 4 November 2000 her detention had had no basis in domestic law. She further complained that the court had ignored her submissions about the state of her health.
55. On 13 December 2000 the Regional Court dismissed the applicant's appeal, finding that her detention was lawful. The court stated that the applicant had been charged with serious crimes, and could be detained on the sole ground of the dangerousness of those offences. With regard to the applicant's argument concerning her detention between 25 October 2000 and 4 November 2000, the court noted that the applicant's case file, including the indictment, had been transmitted to court on 20 October 2000, before the period of her remand in custody had expired. Accordingly, in the court's opinion, the statutory provisions governing the time-limit for detention during the preliminary investigation had been complied with in respect of the applicant. The court further stated that, upon referral of the case to court, the first instance had taken its decision in due time, as prescribed by Article 223-1 of the Code of Criminal Procedure.
56. The applicant's further requests for release were rejected by the Town Court on 22 and 29 December 2000 and 9 January 2001 with a reference to the absence of any “new grounds for altering [the applicant's] measure of restraint”.
57. On 6 February 2001 the Yuzhno-Sakhalinsk Town Court, composed of Judge K. and two lay assessors, convicted the applicant, along with another co-accused, of embezzlement, forgery and abuse of power, and sentenced her to six years and six months' imprisonment and confiscation of her property.
58. On 23 May 2001 the Sakhalin Regional Court upheld the sentence, having lifted the charges against the applicant on three counts with reference to a limitation period.
59. Thereafter the applicant applied unsuccessfully for a supervisory review.
60. On 30 September 2002 the applicant was released on parole.
61. According to the applicant, from 28 February until 29 March 2000 she was kept in the temporary holding facility of the Yuzhno-Sakhalinsk Department of the Interior (изолятор временного содержания управления внутренних дел г. Южно-Сахалинска, “the IVS”). In support of that submission, the applicant enclosed the authorities' letters dated 10 and 22 March 2000 respectively sent to her at the address of the IVS.
62. The applicant corroborated her account below with a written statement from one her former inmates.
63. The IVS was situated in the basement of the premises of the Department of the Interior. Following her arrest the applicant was placed in a cell measuring approximately 3 x 2.5 metres which was 2.5 metres high. There were no windows in the cell, with the result that there was no natural light, nor any fresh air. The inside temperature did not exceed 12oC. There was an iron sink and a cold-water tap, but the water pressure was very low. There was no toilet bowl or any other installation in the cell, and the applicant had to use the sink for her needs. The cell was overrun with mice, rats, lice, cockroaches and fungus.
64. The applicant was not allowed to take any toiletries or a change of clothes with her. She was not provided with any bedding and had to sleep on a plain wooden plank bed. During the first two days of her detention the applicant was not given any food or drinking water.
65. On 29 February 2000, in the evening, the applicant was transferred to another cell which accommodated four other inmates. The conditions in that cell were similar to those described above. It had no windows and was lit by a single 40-watt bulb. All the inmates except the applicant were smokers but the cell was ventilated only once a week when the detainees were taken to shower.
66. There was a big aluminium tank with a capacity of 80-100 litres in the cell. The tank, which had no cover, was used by the cellmates as a toilet. They stretched a piece of cloth over the top to try to reduce the smell. Every evening the cellmates took the tank out of the cell to the common toilet and washed it in turn using a hose with cold water. The tank was never disinfected.
67. The applicant was not provided with any bedding until a fortnight later, when she received it from her family, and slept on a wooden plank bed. The detainees were taken to shower no more than once a week; they were not given soap or any other toiletries or a change of clean underwear. During the entire period of her detention in the IVS the applicant did not have even one opportunity for exercise, due to the absence of the necessary facilities.
68. The applicant was allowed to receive food from her relatives, but, in her submission, she was hardly able to eat given that she had gastrointestinal problems and because of the poor sanitary conditions in the cell. The applicant, who suffered from heart, gastrointestinal and gynaecological conditions, was prohibited from receiving any medicines which she had been taking prior to her detention from her family with the result that her state of health deteriorated. Between 23 and 26 March 2000, following the applicant's complaints about aggravation of osteochondrosis, the IVS authorities called an ambulance and the applicant was given pain-relieving injections.
69. On 7 March 2000 the applicant's representative applied to the regional prosecutor's office, requesting the applicant's transfer into a separate cell.
70. In a letter of 13 March 2000 the regional prosecutor instructed the head of the Regional Department of the Interior to grant this request.
71. In their additional observations of 7 September 2007 the Government stated that throughout the entire period of her detention the applicant was held in remand centre IZ-62/1. They therefore provided no information relating to the applicant's alleged detention in the IVS.
72. The exact period during which the applicant was held in remand centre IZ-62/1 (subsequently IZ-65/1) in Yuzhno-Sakhalinsk (СИЗО- 62/1 – “the IZ-62/1”) and the conditions of her detention there are disputed by the parties.
73. According to the applicant, on 29 March 2000 she was transferred to the IZ-62/1, in which she remained until 30 September 2002. The applicant corroborated her account of the conditions in the remand centre with written statements by two of her former cellmates, dated 28 February 2001 and 7 December 2007.
74. In their observations of 15 December 2004 the Government indicated that the applicant was detained in the IZ-62/1 from 29 March 2000 until 29 September 2002. In their additional observations of 7 September 2007 the Government submitted that in the periods from 28 February until 29 March 2000 and from 29 March 2000 until 30 September 2002 the applicant was held in the IZ-62/1.
75. In their original observations, the Government based the account concerning the applicant's conditions of detention on a number of certificates issued by the head of the IZ-62/1 on 3 November 2004. In their additional observations, in reply to the Court's request that the description of the conditions of the applicant's detention be corroborated with documentary evidence pertaining to the period when she had been detained in the IZ-62/1, the Government submitted a number of certificates issued by the head of the remand centre on 21 August 2007, written explanations given on 17 August 2007 by several warders who had served in the IZ-62/1 at the relevant time, a copy of the applicant's medical file, and photographs of the cells which had accommodated the applicant. The certificates either describe the present-day conditions in the cells in which the applicant was kept or report on various aspects of the applicant's detention at the relevant period. The warders' written statements concern the conditions of the applicant's detention at the relevant period. The medical file is the only document issued during the applicant's detention. It reflects the applicant's medical history in the IZ-62/1.
76. According to the applicant, between 29 March and early May 2000 she was held in cell no. 53, then she was transferred to cell no. 47 in which she spent three months, in early August 2000 she was placed in cell no. 020 where she remained until the middle of October 2000, then she spent a month and a half in cell no. 49, and from later November 2000 until 30 September 2002 she was kept in cell no. 54. The Government disputed this submission. One of the certificates of 21 August 2007 submitted by them states that from 29 March until 29 May 2000 the applicant was held in cell no. 49, from 29 May until 29 June 2000 she was kept in cell no. 020, and from this latter date until 30 September 2002 she was kept in cell no. 54.
77. In the applicant's submission, cell no. 53 measured approximately 24 square metres and was 3 metres high. It was designed for ten detainees. The applicant shared this cell with five inmates. Cell no. 47 also measured approximately 24 square metres and was designed for ten detainees. It held nine inmates. The applicant shared cell no. 020 measuring about 8 square metres and designed for four detainees with another cellmate. Cell no. 49 measured 20 square metres and was designed for ten inmates. It accommodated the applicant and one more detainee. The applicant shared cell no. 54 measuring 14 square metres with another detainee.
78. According to the Government, cell no. 49 measures between 24.6 square metres, as indicated in a certificate of 3 November 2004, and 26 square metres, as indicated in a certificate of 21 August 2007. The cell is intended for seven detainees, whereas the applicant shared this cell with five cellmates. Cell no. 020 measures 8 square metres and is designed for two detainees. In the Government's submission, the applicant was held there alone. Cell no. 54 measures between 14 square metres, according to a certificate of 3 November 2004, and 15.1 square metres, as stated in a certificate of 21 August 2007. The applicant shared this cell, which could accommodate up to four detainees, with another cellmate.
79. According to the applicant, in each cell where she was kept there was a single window. In cell no. 53 the window measuring approximately 1 x 1.4 metres was partly covered with glass and partly with plywood and always remained shut, therefore there was no natural ventilation. In cells nos. 47, 020 and 49 the windows were not glazed, whereas in cell no. 54 the window, also measuring 1 x 1.4 metres, was only partly glazed. The applicant submitted in respect of her detention in cell no. 49 that the prison authorities had repeatedly refused to accept glass for the window from her husband and had not glazed the window before the middle of November 2000 following numerous complaints by the applicant to the regional prosecutor's office. In the applicant's submission, the windows in each cell were covered with metal grilles supplemented with “eyelashes”, which are metal strips covering the grille. From the outside the windows were covered with wooden shields, and therefore only refracted daylight could reach inside. Each cell was only illuminated with a single 60-watt bulb.
80. The Government submitted that during the entire period of the applicant's detention the windows in all the cells had been glazed and had never been covered with plywood. The size of the windows – 1.4 x 1 metres in cells nos. 49 and 54, and 0.8 x 0.8 metres in cell no. 020 – was sufficient to let in enough daylight to enable detainees to read. Each window had a vent which ensured proper natural ventilation of the cells. According to the Government, the shutters had been removed from the windows in the period from January to March 2003. As regards artificial light, the Government submitted that each cell was illuminated with a bulb of 75- up to100-watt in the day and with a 25-watt bulb in the night.
81. According to the applicant, she was the only non-smoker in the cells where all the other detainees smoked. There was no mechanical ventilation in any of the cells. The cells were damp, with concrete floors. In the winter the temperature in the cells did not exceed 12oC whilst in the summer it was stiflingly hot inside and the temperature reached 24-26oC. In the Government's submission, each cell was equipped with mechanical ventilation and the average temperature was maintained at the level of 2022oC with a humidity level of 55.3 per cent. They relied on a report reflecting the results of measurement on 17 August 2007 of temperature and humidity level in cells nos. 49, 020 and 54 of the IZ-65/1. The report was drawn up by a regional authority for hygiene and epidemiology and indicated that the temperature in the cells ranged between 23.5 and 23.9oC with the humidity level ranging between 54.4 and 58.4 per cent. The Government accepted that at least for some time the applicant had had to share a cell with smokers, but insisted that she had not endured severe suffering in this connection, given that a cell had been 3 metres high and had had natural and mechanical ventilation. They also submitted that on 29 May 2000, at the applicant's request, she had been transferred to cell no. 020, where she was held alone, and a month later she was transferred to cell no. 54, which she shared with a non-smoker.
82. It was not in dispute between the parties that each cell was equipped with a sink and a lavatory pan, that cold running water was available around the clock and that the detainees were also regularly provided with drinking water. The Government also submitted that detainees were provided daily with hot water for hygienic purposes. As regards the toilet, the applicant submitted that it had had no flush system and the inmates washed it with water from a bucket. The Government stated that the toilet in cells nos. 49, 020 and 54 had a flush system which filled with water run from a tap. The applicant also submitted that during the period of her detention in cell no. 54 the toilet was not disinfected even once.
83. According to the applicant, the lavatory pan was separated by a partition from the sink but not from the living area and dining table. The detainees' attempts to separate the toilet from them with curtains made of sheets were suppressed by the prison authorities. In the Government's submission, the sanitary installations were separated from the living area with a partition which was one metre high and offered privacy. The photographs show that the lavatory pan is separated from the living area by a thick partition and that in cells nos. 49 and 54 there is also a curtain in front of the pan.
84. According to the applicant, the cells were overrun with cockroaches, mice and rats. The Government stated that all the cells were disinfected twice a month during the summer period and once a month in the winter.
85. The parties did not dispute the fact that throughout the period of the applicant's detention in the IZ-62/1 she had had a personal sleeping place. According to the applicant, she was provided with a mattress, although it was of poor quality, and was allowed to take her own warm blanket, pillow and bed linen. The Government insisted that the prison authorities had provided the applicant with bedding, including a mattress, a pillow, a semi-woollen blanket, three sheets, two pillowcases and a towel, and that she had signed for these in a register of provision of detainees with bedding. They did not submit the document relied on. A certificate of 21 August 2007 indicates that the relevant documentation cannot be provided, since the time-limit for its storage does not exceed five years. According to the Government, the bed linen was changed weekly.
86. The parties further agreed that the applicant was allowed to take a shower once a week for 30 minutes. The applicant alleged, however, that she had to wash herself, along with ten to fifteen other detainees, using wash-basins in a room measuring 4 x 4 metres which adjoined another room measuring 2 x 2 metres. The latter room was equipped with two showers. According to her, the cellmates were provided with 50 grams of soap per week.
87. According to the applicant, the detainees were allowed exercise less than once a day for a period of thirty to sixty minutes. During the period of her detention in cell no. 53 she was taken for outdoor exercise on two or three occasions into a courtyard measuring approximately 2.5 x 2.5 metres. At the same time seven to ten detainees were walking in the courtyard. Each walk lasted about thirty minutes. The Government insisted that the applicant was allowed to take a walk every day for two hours during daylight hours.
88. In the applicant's submission, the scarce meals were of poor quality, but the prison authorities only allowed her to receive bread and flour products, sugar and tea from her family. She was not allowed to receive any dairy products, fish, meat or juices, which, according to the applicant, she needed in view of her gastrointestinal problems, or any other products such as jam or honey. According to the Government, the applicant, like all the other detainees, was provided with meals three times a day and received a well-balanced menu. In particular, she received daily 100 grams of cereals, 20 grams of noodles, 100 grams of meat, 100 grams of fish, 10 grams of fats, 15 grams of seed-oil, 30 grams of sugar, 500 grams of potatoes, 250 grams of vegetables and 550 grams of bread. A certificate of 21 August 2007 states that the relevant documentation cannot be provided, as it had been destroyed.
89. According to the applicant, before her placement in custody she had been suffering from heart, gastrointestinal and gynaecological conditions. In support of her submissions, she relied on medical documents confirming that she had undergone treatment in respect of those conditions in the 1990s. In particular, a certificate issued in March 2000 states that in November-December 1999 the applicant was diagnosed with hypertension and ischaemic heart disease and a certificate of 20 December 2000 confirms that the applicant had her gall bladder removed in 1991. There is also a certificate stating that the applicant was diagnosed with hysteromyoma.
90. The applicant further submitted that her health had deteriorated during her detention. In particular, she started suffering from gastritis, conjunctivitis, myopia and contracted a facial dermatological disease, demodicosis. The applicant adduced a copy of an extract from her medical file dated 18 April 2005 and medical documents of 26 February and 22 June 2006 confirming the presence of those diseases. In the applicant's submission, when in custody she repeatedly complained to the authorities about her poor state of health and requested an independent medical examination. She submitted copies of her written requests to various authorities.
91. In particular, on 6 April 2000 the applicant requested the head of the IZ-62/1 that she receive an independent medical examination.
92. On 24 April 2000 the applicant complained to the regional prosecutor that the medical examinations carried out in the IZ-62/1 were inadequate, that her medicines had been taken away and that the authorities had failed to have her independent medical examination carried out. She also complained that she had to share a cell with nine other detainees, all of them smokers, and that although the cells were severely infested with cockroaches the prison authorities made no attempts to exterminate them.
93. In a letter of 10 May 2000 the regional prosecutor's office informed the applicant about regulations which provided that medicine prescribed to suspects should be kept by a duty officer and taken by patients in the presence of that officer. In respect of the applicant's request to order an independent medical examination, the letter stated that there was no such obligation on the authorities. Lastly, the applicant was invited to address her complaints concerning sanitary conditions in the cell to the administration of the IZ-62/1 or to the administration of the Department for Execution of Punishments.
94. In her complaint of 17 May 2000 concerning the extension of her pre-trial detention (see paragraph 24 above) the applicant referred, inter alia, to poor conditions of her detention, stating that she was being kept in a poorly lit cell with smokers, that her sight had deteriorated, that her medicines had been seized and that she had not received adequate medical treatment and had been refused an independent medical examination.
95. On 22 May 2000 the applicant sent another complaint to the regional prosecutor, in which she again mentioned the authorities' failure to have her independent medical examination carried out and complained of deterioration of her sight, high blood pressure and aggravation of her health problems.
96. In May-July 2000 the applicant suffered from an inflammatory condition on her face which, according to her, proved to be demodicosis. In her submission, the treatment she received from prison doctors was ineffective. On 13 and 14 June 2000 the applicant sent complaints to the head of the regional Department for Execution of Punishments and the regional prosecutor in which she informed them that she was in need of urgent professional medical treatment for her acute facial condition, which could not be administered to her in the remand centre, and requested that she either be examined by specialists in connection with that condition, or admitted to a hospital for inpatient treatment.
97. On 3 August 2000 the applicant complained in writing to the head of the IZ-62/1 that there was no adequate medical assistance in connection with her heart condition and that medicines for injection and syringes which had been delivered by her family members had been taken away. She also mentioned that the cell in which she was being held was never ventilated.
98. On 2 November 2000 the applicant, with reference to her heart, gastrointestinal and gynaecological problems and the deterioration of her health in detention, requested the Yuzhno-Sakhalinsk Town Court to order an independent medical examination. On 12 November 2000 the applicant forwarded a similar request to the head of the IZ-62/1.
99. On 17 November 2000 the head of the IZ-62/1 sent a written request to the Town Court to allow an independent medical examination of the applicant.
100. According to the applicant, despite numerous requests, she had no proper medical treatment and her medicines were taken from her by the prison authorities. In the spring 2001 the prison authorities accepted from the applicant's relatives medicines for treatment of heart diseases and disposable syringes. However, according to the applicant, she was not administered any injection until the autumn of 2001 after her numerous complaints to the authorities. In the Government's submission, all the medicines received by the prison authorities from the applicant's relatives were delivered to the applicant, except for medicines for injection and syringes.
101. A copy of the applicant's medical file made during her detention in the IZ-62/1 submitted by the Government reveals the following.
102. On 29 March 2000, on the applicant's arrival at the remand centre, she underwent a medical examination which established that she was fit. During the examination the applicant stated that her gall bladder had been extracted and complained of pain in the small of her back. She made no other complaints.
103. On 31 March 2000 a duty paramedic attended the applicant in the cell, at her request. The officer took the applicant's blood pressure.
104. On 7 April 2000, upon the applicant's complaint of slight headaches and some bleeding from the ears, she was examined by a general practitioner and diagnosed with vegetative-vascular dystonia. The applicant was prescribed and administered medication.
105. On 12 April 2000 the applicant was received by the head of the IZ62/1 medical office in connection with her complaint that her medicines had been taken away. Some of the medicines were returned to her. The head of the medical office also took the applicant's blood pressure.
106. On 19 April 2000 the applicant was examined by a medical commission of the Central Hospital of the Department for Execution of Punishments, including a general practitioner and a surgeon. She complained of pain in the right pre-costal area and constipation. The applicant was diagnosed with biliary dyskinesia and prescribed pain-relieving medicines. Her general state of health was found to be satisfactory.
107. On 24 April 2000 the applicant's blood pressure was measured.
108. On 12 May 2000 the applicant refused to undergo a gynaecological examination by a gynaecologist from the city maternity and gynaecology hospital, stating that the person assigned to carry it out was incompetent. She insisted on an independent gynaecological examination as well as examinations by a dermatologist and an ophthalmologist.
109. On the same date the applicant was examined by the head of the ophthalmological department of the regional hospital, diagnosed with slight myopia and prescribed glasses.
110. On 16 May 2000 the applicant was examined by a duty paramedic in connection with the inflammation of her face. She was diagnosed with allergic dermatitis and prescribed antihistamine pills and ointment.
111. The next day the applicant was examined by a psychiatrist in connection with her complaints of insomnia and itching and eruptions on her face. The doctor concluded that she was “almost fit”.
112. On 22 May 2000 the applicant was examined by a duty paramedic in connection with her complaints of nausea, weakness and shooting pains in the heart area. She was diagnosed with presumed cardio neurosis and prescribed relevant treatment.
113. On 26 May 2000, upon the applicant's complaint to the effect that she was unable to take part in a court hearing scheduled for that day because of her poor physical condition, she was examined by a general practitioner who concluded that she was fit.
114. On 28 May 2000 the applicant was examined by a dermatologist in connection with her complaint of eruptions on her face. She was diagnosed with allergic dermatitis and prescribed antihistamines, vitamins and ointments.
115. On 29 May 2000 the applicant was examined by a general practitioner who diagnosed her with presumed osteochondrosis and premenopausal syndrome and prescribed relevant treatment.
116. On 5 June 2000 the applicant was examined by the head of the IZ62/1 medical office, who concluded that her dermatological condition was satisfactory.
117. The next day the applicant was examined by a dermatologist who also confirmed that she was fit.
118. On 21 June 2000 the applicant had a conversation with the head of the IZ-62/1 medical office as regards the administration of medicines for treatment of heart disease received from the applicant's family members. The applicant was invited to undergo an electrocardiographic monitoring necessary prior to the administration of that medicine, but she refused the monitoring, stating that the device was outdated.
119. On 22 June 2000 the applicant was attended and examined by the head of the Tselitel medical centre, who concluded that the applicant was suffering from premenopausal syndrome and suggested that she undergo treatment with hormonal medicines.
120. On 12 July 2000 the applicant was examined by a general practitioner, who diagnosed her with influenza and administered relevant treatment.
121. On 9 August 2000 the applicant was examined by a general practitioner, who found that she had post-cholecystectomy syndrome. She was prescribed relevant treatment.
122. On 30 August 2000 the applicant was examined by a duty paramedic as she stated that she had been on hunger strike since 25 August 2000. The paramedic weighed the applicant and took her blood pressure. Her physical condition was found to be satisfactory.
123. On 13 October 2000 a general practitioner examined the applicant, took her blood pressure and, at the applicant's request, prescribed her the medicines which had been delivered by her family members.
124. On 26 October 2000 the applicant was examined by a general practitioner and diagnosed with influenza. Relevant treatment was prescribed.
125. On 14 November 2000 the applicant was examined by a duty paramedic in connection with her complaint of headaches and weakness. The paramedic found that she had vegetative-vascular dystonia and recommended relevant treatment.
126. On 28 December 2000 a general practitioner diagnosed the applicant with acute laryngotracheitis and prescribed relevant treatment.
127. On 18 January 2001 the applicant was attended and treated by a general practitioner in connection with pharyngitis and vegetative-vascular dystonia.
128. On 8 February 2001 the applicant was examined by a general practitioner, diagnosed with acute tracheobronchitis and prescribed relevant treatment.
129. On 13 February 2001 the applicant was attended and treated by a general practitioner in connection with protracted tracheitis. On 15 February 2001 the general practitioner again examined the applicant and recommended that the treatment be continued.
130. On 6 March 2002 the applicant was examined by a general practitioner and diagnosed with follicular tonsillitis. Relevant treatment was prescribed. On 10 March 2002 she was attended by a duty paramedic who recommended that she continue with the treatment.
131. During the period of her detention in remand centre IZ-62/1 the applicant underwent fluorography examinations on six occasions; the examination disclosed no pathologies.
132. On 3 March 2000 the investigator in charge ordered the seizure of the applicant's flat pending trial.
133. On 16 March 2000 a deputy regional prosecutor rejected the applicant's complaint against the investigator's order.
134. On 28 July 2000 the applicant applied to a court, stating that the flat in question was the only housing for her family and therefore was immune from seizure.
135. On 8 August 2000 the Yuzhno-Sakhalinsk Town Court found in the applicant's favour and lifted the seizure.
136. On 3 October 2000, on an appeal by the regional prosecutor, the Sakhalin Regional Court quashed the above judgment and remitted the case to the first-instance court.
137. It appears that, following the applicant's conviction, on 11 March 2002, the Town Court lifted the seizure of the applicant's flat in a separate set of proceedings. The court noted that this apartment was the permanent place of residence for the applicant's family and was not subject to confiscation.
138. On 12 March 2002 the Town Court discontinued the proceedings on the applicant's action of 28 July 2000, since she had waived her claims.
139. Article 96 (Taking into custody) provides that taking into custody as a measure of restraint may be imposed in cases concerning criminal offences punishable by law with more than one year's imprisonment. The Article also refers to a number of serious criminal offences, including embezzlement, and provides that in respect of persons charged with those offences, taking into custody as a preventive measure may be applied on the sole ground of the danger presented by the criminal offence committed.
140. Article 97 (Periods of detention) provides that the duration of detention during the investigation of criminal cases may not exceed two months. This period may be extended by a relevant prosecutor to up to three months, and further detention can be authorised by a regional prosecutor (or a prosecutor of equal rank) to up to a maximum of six months. Extension of detention beyond six months is allowed in exceptional cases only with regard to persons charged with serious criminal offences, and can be authorised by a deputy Prosecutor General for a period of up to one year, and by the Prosecutor General for a period of up to one and a half years. Further extension of detention is not allowed: the person must be released immediately.
141.
142. Article 223-1 (Ordering a court session) provides that, if an accused is kept in custody, a judge shall take a decision to order a court session within fourteen days of the date when the criminal case was received by the court.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-67880
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: I.I.N. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: The applicant, Mr I.I.N., is an Iranian national, who was born in 1975 and currently lives in the Netherlands. He is represented before the Court by Mr H.A. Limonard, a lawyer practising in Zwolle. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 April 2001 the applicant applied for asylum in the Netherlands. He claimed that, in May 1999 and in June/July 1999, he had been arrested during a demonstration. On both occasions he had been ill-treated during his detention and released after one day. He further claimed that in January/February 2001 he had been caught by a policeman when he was kissing a male friend in an alley. He was arrested and taken to the vice squad police office where his particulars were recorded and his fingerprints taken. He was forced to write and sign a statement in which he declared that he was a homosexual and that he had been caught in flagrante delicto. After having been raped by this policeman, he was released the next day. He was told by the policeman that he should report daily to him at the vice squad police station. The applicant further stated that this policeman had raped him on two further occasions when he had reported to him at the police station. The applicant also claimed that, on 18 March 2001, he had attended a protest meeting in the course of which films had been shot and photographs taken, including photographs of the applicant in the company of a good friend. This friend was arrested at the meeting and released on the next day. On 4 April 2001, the friend's body was found in a ditch. The words “freedom of expression has this as a consequence” had been written on the body. Fearing the same fate, the applicant decided to flee Iran. He had travelled by car to Turkey and from there by airplane to the Netherlands. He arrived in the Netherlands on 23 April 2003.
On 31 October 2001, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's asylum request, holding that the applicant's account lacked credibility.
The applicant's appeal against this decision was rejected on 17 April 2003 by the Regional Court (arrondissementsrechtbank) of The Hague sitting in Assen. The Regional Court held:
“The Regional Court notes that the defendant has rejected the request under Article 31 § 2 (f) of the 2000 Aliens Act (Vreemdelingenwet). Pursuant to this provision, in the determination of an [asylum] application, account must also be taken of the fact that the alien has not been able to submit any supporting travel or identity documents or other documents necessary for the determination of the application, unless the alien can demonstrate that he cannot be held responsible for the non-production of such documents.
The defendant has observed in this context that it cannot be considered credible that the [applicant] would not have been in possession of personal documents during his journey though Iran and was unaware of the Iranian legal rules on this point since there is an identification obligation in that country for all persons from the age of sixteen onwards. In addition, and contrary to his stated intentions, the [applicant] has not had sent to the Netherlands documents from which his identity could be confirmed. The defendant furthermore does not consider it plausible that the [applicant] was unable to submit a single indicative element of proof of his journey to the Netherlands. The [applicant] has also been unable to submit newspaper reports about the events of 18 March 2001 or to indicate in which newspapers information about these events was published. However, according to the [applicant], such information had been published.
In addition to the above, the defendant has found that the [applicant], who indicated that he had been politically active, was unable to state clearly the activities in which he had been engaged. In the opinion of the defendant, the [applicant] has also given vague and incredulous statements about the events of 18 March 2001, the audiovisual recordings of these events, the death of his friend in relation to these events and the manner in which he was informed of his death. The defendant further considers it doubtful that the [applicant] participated in the meeting of 18 March 2001 as he would have attracted the negative attention of the authorities and would have been subject to an obligation to report daily. The [applicant] also remained two weeks in his home but failed to comply with his obligation to report daily. Also, the arrests and detentions alleged by the [applicant] in the months of May and June/July 1999 cannot be considered credible as in that period the [applicant] was still doing his military service. Being a conscript, it cannot be considered credible that he would have been unconditionally released on each occasion after one day without encountering any negative consequences, whereas an intelligence file on him would have existed.
The defendant also considers it not credible that the [applicant] would have been caught performing homosexual acts. Moreover, given what is known about that, it is not plausible that the [applicant] would be punished solely on account of homosexual conduct.
The Regional Court is of the opinion that the defendant's decision can pass the judicial test. ... In the court's opinion, the defendant could, having regard to the extensive reasoning in his decision as set out above, which has remained unchallenged in both the written and oral appeal submissions, in all reasonableness find the applicant's account not credible. The defendant has justifiably and on good grounds decided that the [applicant] cannot be regarded as a refugee.
As regards the report of the UNHCR (United Nations High Commissioner for Refugees) Berlin submitted by the applicant, the Regional Court considers that this cannot be given the significance sought by the [applicant]. According to the constant case-law, an official report (ambtsbericht) of the Minister of Foreign Affairs must be regarded as an expert report, and the contents of the report cited by the [applicant] do not contain a definite rebuttal of the information on the punishment of homosexuals set out in the official report of 24 August 2001. Therefore, it is not necessarily contradictory.
The [applicant] cannot, therefore, derive entitlement to a residence permit from Article 29 § 1 (a) of the 2000 Aliens Act.
Noting the above considerations, it has also not been established that the [applicant] has well-founded reasons for assuming that he, when expelled, runs a real risk of being subjected to torture, inhuman or degrading treatment or punishment ... The Regional Court further finds no appearance of such compelling reasons of a humanitarian nature linked to the reasons for leaving the country of origin that the defendant could not, in all reasonableness, have adopted the position that the [applicant] can be asked to return to his country of origin...”
The applicant's subsequent appeal was rejected on 16 July 2003 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State, which upheld the Regional Court's judgment of 17 April 2003.
The general official report (algemeen ambtsbericht) on Iran of the Netherlands Ministry of Foreign Affairs, dated 24 August 2001 and in so far as relevant, states:
“Homosexuality is a big taboo subject in Iranian society. There are however meeting places. It is known that there are some parks in Teheran where many homosexuals meet up in the evening. Generally speaking, it can be said that people seeking homosexual relations in Iran are known to find their way. It must however be noted that openness about that is avoided. A person does not openly display his or her sexual orientation. In Iran, in general, sexuality in public is surrounded by a certain degree of circumspection.
Homosexual contacts are not actively prosecuted. No cases of conviction solely for homosexual acts are known, although according to the Shari'a such acts attract the death penalty. If a conviction of a person also entails a charge of homosexuality, this is taken into account cumulatively in combination with other criminal offences related to alcohol, drugs and prostitution. A certain degree of openness is displayed in respect of these last matters.
These cases can be brought before both an ordinary (public) court and a Revolutionary Tribunal. If such matters are presented as “earthly corruption” (Mofsed fil Arz) the Revolutionary Tribunal has competence.
Sex change operations are permitted in Iran and are in practice performed.”
The most recent general official report on Iran of the Netherlands Ministry of Foreign Affairs, dated April 2004 and in so far as relevant, states:
“Homosexual acts do not form in practice a reason for persecution by the authorities. Homosexuality is a taboo subject in public life. It is known that there are parks in Teheran that serve as meeting places for homosexuals. There are no known cases in the past years of convictions based solely on the provisions of the Criminal Code – set out below – concerning homosexual acts. In 2003 the media reported in one case about a conviction of homosexual acts in conjunction with other offences such as rape and violence. According to some foreign observers there are indications that [accusations of sexual offences] are sometimes abused for political purposes, or as a means of pressure in conflicts between private individuals.
Legal framework
In Article 108 of the Iranian Criminal Code, homosexual conduct is defined as intercourse and related acts between two men. The hadd-punishment for homosexual intercourse is the death penalty; the manner of its execution is determined by the judge. This punishment applies to both “active” and “passive” participants in the intercourse, but only if they are adult and of sound mind, and have acted of their own free will. If one of them is a minor, he will – provided he has acted of his own free will – be given a ta'zirat punishment. The punishment of the adult will remain the haddpunishment. If both partners are minors, they will be judged according to ta'zirat. The ta'zirat punishment may run to 74 whiplashes (Articles 108-113 of the Iranian Criminal Code).
According to hudud [plural of “hadd”], the punishment for homosexual acts not involving intercourse is 100 whiplashes. ... If these acts have been repeated three times, and each time a hadd-punishment has been imposed, the death penalty is imposed the fourth time. ... Kissing another man out of lust attracts a ta'zirat punishment of up to 60 whiplashes (Articles 121-124 of the Iranian Criminal Code).
In order to be punished according to hudud, the person concerned must confess four times before a religious judge, otherwise he will be judged under ta'zirat. This confession is only legally valid if the person concerned is an adult, of sound mind and has made the confession of his own free will. Homosexual acts can only be proven by four male witnesses who have seen the deed with their own eyes. Testimony given by a woman is not valid. If testimonies turn out to be false, the witnesses will be prosecuted for this (Articles 114-119 of the Iranian Criminal Code).
The hadd-punishment shall be spared if the accused shows remorse before the witnesses give their statements. If he shows remorse after the witnesses have given evidence, the punishment will not be spared (Article 126 of the Iranian Criminal Code).”
In the UNHCR (United Nations High Commissioner on Refugees) Background Paper on Refugees and Asylum Seekers from the Islamic Republic of Iran, dated January 2001, the following is stated in respect of homosexuals:
“The Islamic Penal Law of Iran deals extensively with sodomy, lesbianism and pimping. Homosexuality is forbidden by Islamic law, and will be punished. Sodomy, defined as “sexual intercourse with a male”, is punishable by death if both parties “are mature, of sound mind and have free will”.310 It must be proven by either four confessions from the accused, the testimony of four “righteous men” who witnessed the act, or through the knowledge of a Shari'a judge “derived through customary methods”. If the accused repents before the witnesses testify, the penalty “will be quashed”.
According to the Ta'azirat of November 1983 (valid to June 1996) sentences of imprisonment for between one and 10 years and up to 74 lashes are possible. The death penalty may also be incurred if the act is deemed “Act against God and corruption on earth”. Since June 1996, the revised Ta'azirat omits direct threat of lashes or the death penalty, but may impose closure of premises where the act took place. ...
The most recent report of execution is of the death by stoning of a man in 1995, on charges of repeated acts of “adultery and sodomy”.”
A position paper on persecution of homosexuals in Iran, issued by the UNHCR Branch Office in Germany in January 2002 states inter alia:
“Although, in so far as known to the UNHCR, the most recent reported execution by stoning for repeated homosexual acts and adultery took place in 1995, local newspapers continue to report about executions of homosexuals. In the absence of a systematic observation of the human rights situation in Iran, it cannot be confirmed whether the persons concerned have been convicted and executed solely for homosexual acts or also for additional charges. It does occur that homosexuality is one of several charges. In view of the multiplicity of executions and lashings, it cannot be excluded the victims thereof include persons being punished – on grounds of homosexuality – by death or lashing as provided for on the Iranian Criminal Code. Against this background it cannot be asserted with certainty that the criminal law provisions on homosexuality only have a theoretical significance.”
A Danish fact-finding mission (Danish Immigration Service) to Iran in September 2000 issued a Special Report dated 16 January 2002 which, in so far as relevant, reads:
“5.5 Homosexuals
During their visit to Teheran, the delegation had an opportunity to discuss the situation for homosexuals in Iran with several of their contacts.
According to one source with a good knowledge of the Iranian judicial system, the penalty for homosexuality is death by hanging. There is no minimum punishment. However, the source stressed that the burden of proof is heavy. In order for sentencing to take place, the homosexual act must be testified to in court by four persons who witnessed the act, or else both of the persons involved must confess to the relationship. A government source added that cases relating to homosexuality are extremely difficult to prove. A Western embassy confirmed that the burden of proof is heavy. Another Western embassy said that the authorities in the source's home country attach great importance to the burden of proof when processing asylum applications from Iranian citizens whose claims are based on homosexuality.
A Western embassy said that it had never heard of cases relating solely to homosexuality. According to the same source, however, a man who had been charged with 15 counts of indecent behaviour had been executed the week before... He had also been found guilty of raping a 12 year old boy in his shop.
According to a Western source familiar with the homosexual scene in Tehran, it had never heard of cases being brought against homosexuals. The source thought that the homosexual community would be aware of any cases being brought against persons solely on the grounds of their homosexuality.
A source connected with a Western news agency thought that any cases brought against homosexuals would not be brought to public attention. In view of that fact, the source could not rule out the possibility that there might be cases where the charge relates to homosexuality. In that connection the source referred to a case in a military prison where a prisoner let slip to a warder about a homosexual relationship he had had. The prisoner was subsequently sentenced to 100 lashes.
According to a government source, homosexuals do not experience any problems in Iranian society; in other words, few cases relating to homosexuality have been brought before the Iranian courts.
However, according to a source with good knowledge of the Iranian judicial system, many cases concerning homosexuality have been brought before the Iranian courts. The source was unable to provide further details of the cases in question. With regard to sentences passed in such cases, the source could say only that the death penalty had been pronounced in several. The source added that if a case was not fully substantiated, it was for the judge to decide on the punishment.
When the delegation asked why such cases were brought, the source replied that this was because one of the parties involved in the homosexual relationship had contacted the courts.
According to a government source, a person cannot accuse himself. With regard to homosexuality, this means that – in his opinion – if an Iranian citizen reveals himself as a homosexual in a Danish newspaper, nothing will happen to that person when he returns to Iran.
Several Western sources, including one embassy, said independently that homosexuals do not face problems in Iran today. There are places where homosexuals meet. In that connection, two of the Western sources mentioned that there are parks in Tehran which are meeting places for homosexuals.”
The Canadian Immigration and Refugee Board report on the treatment of homosexuals in Iran dated 11 February 1998 and updated on 20 January 2003 states inter alia:
“Theoretically, homosexual behaviour is sharply condemned by Islam, but in practice it is present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates ... In practice it is only public transgression of Islamic morals that is condemned, and therefore Islamic law stresses the role of eye-witnesses to an offense. The police are not allowed to go in search of possible sinners, who can only be caught red-handed, and not behind the “veil of decency” of their closed doors ... The generally tolerant attitude toward homosexual practice can partly be explained by the fact that it will usually take place discreetly. Moreover it does not have serious personal consequences such as for example, heterosexual adultery would have. ...
According to the representative of the Swedish Amnesty Group for Gay and Lesbian Concerns ... who is also an activist working with the International Gay and Lesbian Association ... none of the few known executions of homosexuals and lesbians in Iran were carried out on the sole basis of homosexuality. ...
In its 1996 report the Embassy of Sweden states that:
The strict regulations for submission of evidence, four male witnesses to the homosexual penetration, alternatively four confessions from each of the active partners, renders a sentence for homosexuality almost impossible in practice. The police and justice administration do not take active measures to investigate the existence of homosexuality, nor do they actively hunt homosexuals. All in all, the situation in practice in Iran is drastically different from the impression conveyed by the Shari'a inspired penal code. According to the information from usually very reliable sources, no homosexuals have been executed in Iran for the last few years. In order to risk policiary sanctions – maltreatment or a short time in custody/jail, regardless of the fact that the penalty according to the law is death or whipping - a homosexual couple must behave with great indiscretion, almost provocatively, in a public place.
According to a sociologist specializing on Iran and chargée de conferences at the Sorbonne-Nouvelle (Paris-III), the law stipulates that people engaging in sexual relations with a person of the same sex ... would only be put on trial if the prosecution can produce four righteous men who witnessed the sexual act, or one of the partners admits to having sexual relations with another man ... If there are fewer than four men to testify to the homosexuality of a person, the accusation of homosexual activities cannot be proven. The sociologist stated that it would be suicidal to 'admit one's homosexuality' and added that such an admission is implausible. In practice, the burden of proof lies so heavily on the prosecution that ... a homosexual will very rarely be tried or sentenced. The sociologist has never come across any case that went to trial and stated there are many more stonings for heterosexual relations prior to marriage and for adultery than for homosexuality.
Another sociologist ... at the Université de Paris stated ... that legislative repression is not directed against 'homosexuals' but against heterosexual relations outside marriage. Repressing 'homosexual activities' is rare for the security forces because of the difficulty of identifying who is 'homosexual' and who is not since Iranian men have very close physical contact (holding hands and kissing) which is socially acceptable behaviour in Iran. It is very rare that a person would be arrested for 'homosexuality' but if a person were arrested and convicted as a homosexual the punishment would be harsh.
According to another sociologist and a researcher on Iran with the CNRS, although Muslim and Iranian laws punish 'homosexuality' by death, in practice, it rarely happens, except in the cases of pedophilia ... 'Homosexuality' is a common phenomenon and is tolerated as long as it does not disturb public order and remains a private activity. It would be repressed only when made public and asserted, an implausible occurrence in Iran.
A 2 February 1998 letter from the Director of the Iran Desk at the Alien Appeals Board of Sweden in Stockholm states that:
Furthermore it is not known that Iranian authorities are actively taking legal actions against homosexuals. It is most unlikely that the authorities would take proceedings against a homosexual as long as he does not manifest his disposition in an open and public manner. As far as the Alien Appeals Board knows not anyone has been prosecuted on homosexuality charges alone in Iran for the past seven to eight years.
There are many indications that there is a significant difference between the legal texts and the practice of the security forces.
As far as the behaviour of homosexual persons can be taken as a relevant indication about the degree of oppression of homosexuals, the impression is rather that the situation in Iran is relatively tolerant, since homosexuality is by no means unusual in Iran. Certain 'health clubs' in Tehran are for example known to be frequented by homosexuals. Furthermore, it is by no means unusual to meet openly homosexual persons –under otherwise heterosexual private circumstances like social events.
... There is a park in central Teheran called Daneshju (student) that is famous and well-known as a place where men who are looking for sexual relationships with other men meet. The sociologist added that the public and the security forces are aware of the park's reputation ...”
In a decision taken on 26 May 2003 in the case of K.S.Y. v. the Netherlands (Communication No. 190/2001), the United Nations Committee Against Torture rejected the complaints of a citizen of Iran who complained that the Netherlands were proposing to expel him to Iran where he claimed that he had previously been detained and tortured for his homosexuality and would face further risk of torture. It noted the contradictions and inconsistencies in his account and also “from different and reliable sources that there is currently no active policy of prosecution of charges of homosexuality in Iran”. It accordingly found that it had not been given enough evidence to conclude that the complainant would run a personal, present and foreseeable risk of being tortured if returned to his country of origin.
The Country Information and Policy Unit Assessment (Immigration and Nationality Directorate of the Home Office of the United Kingdom) on Iran, dated October 2003, states in its relevant part:
“6.167. Although homosexuality is never spoken about and thus a hidden issue, in practice it is not difficult to encounter homosexuals in Iran. There are special parks in Tehran, known as homosexual meeting places. There are also a large number of transvestites walking around in North Tehran. Furthermore, sex changes are permitted in Iran and operations are frequently and openly carried out. A different sexual orientation may, however, create problems. Still, homosexuality is practised every day, and as long as this happens behind closed doors within your own four walls, and as long as people do not intend to proselytise “transvestitism” or homosexuality, they will most likely remain unharmed.
6.168. Technically, homosexual behaviour is sharply condemned by Islam, and the Islamic code of law (Sharia law) adopted by Iran. Sodomy is punishable by death if both parties are considered to be adults of sound mind and free will. It must be proven by either four confessions from the accused, the testimony of four righteous men who witnessed the act or through the knowledge of a Sharia judge “derived through customary methods”. If the accused repents before the witnesses testify, the penalty “will be quashed”.
6.169. From a legal point of view it is important to take a look at Iranian law the Islamic Punishment Act, which carries the following provisions for homosexual acts:
Art. 110: The prescribed punishment for homosexual relations in case of intercourse is execution and the mode of the execution is at the discretion of the religious judge.
Art. 111: Homosexual intercourse leads to execution provided that both the active and the passive party are of age, sane and consenting.
Art. 112: Where a person of age commits homosexual intercourse with an adolescent, the active party shall be executed and the passive party, if he has not been reluctant, shall receive a flogging of up to 74 lashes.
Art. 113: Where an adolescent commits homosexual intercourse with another adolescent, they shall receive a flogging of up to 74 strokes of the whip unless one of them has been reluctant.
Art. 114 to 126 establish how to prove homosexual intercourse.
Art. 127 to 134 relate to lesbian sexual relations. Punishment for sexual intercourse among lesbians is 100 lashes and in case of recidivity 3 times execution.
6.170. So far, no cases of execution only on the grounds of homosexual relations have been identified. In fact, the burden of proof is quite high and it would be difficult to prove homosexual liaisons or intercourse. According to some reports in local papers there have been instances of execution of homosexuals. It is not confirmed whether the homosexual act alone led to execution or whether the person was accused on other charges too.
6.171. Last year there were reports that a man accused of sodomising and then murdering his nephew was to be thrown over a cliff in a sack. This was given widespread publicity by the Iranian opposition in the UK and was taken up by other wires, but we have heard no reports that the sentence was ever carried out.
6.172. However, jurisprudence, burden of proof notwithstanding, certainly has used accusations of homosexuality. Furthermore, it does happen that homosexuality is mentioned as one of the accusations amongst other offences held against the defendant. For instance, accusations of homosexuality have been used in unfair trials, such as the case of a Sunni leader in Shiraz in 1996/97, who was clearly prosecuted for political reasons. There have also been other political cases, although not in the recent past.
6.173. According to the Ta'azirat of November 1983, valid to June 1996, sentences of imprisonment between 1 and 10 years and up to 74 lashes are possible. The death penalty may also be incurred if the act is deemed “Act against God and corruption on earth”. Since June 1996 the revised Ta'azirat omits direct threat of lashes or the death penalty. The penalties of lashing and of death are, however, still judicial options, even though they are not mentioned within the revised Ta'azirat. Reports suggest that since 1996 they have rarely been used. The most recent report of execution is of the death by stoning of a man dates from 1995, on charges of repeated acts of “adultery and sodomy”. Reports of use of the death penalty in cases where the only offence is sodomy/execution are extremely difficult to substantiate, and are held to be an unlikely sentence. More usually lashing is the punishment.
6.174. However, strict though the legal position is, expert opinion consulted by the Canadian IRB [Immigration and Refugee Board] states “... in practice homosexuality is present, and has been in the past, for the most part tolerantly treated and frequently occurring in countries where Islam predominates... In practice it is only public transgression of Islamic morals that is condemned and therefore Islamic law stresses the role of eye-witnesses to an offence.”
6.175. The same source stated that the police are not empowered nor do they actively pursue homosexual activity of any kind that is performed behind the “veil of decency” of closed doors.
6.176. Sources indicate that there are held to be many differing levels of homosexual activity within Iranian society. In rural areas, even "lavat" - sexual activity can be considered socially to be compensatory sexual behaviour for heterosexual sexual intercourse, and the practitioners held not to be homosexuals. The key offensive practice is sodomy, or more particularly to be sodomised, as an unnatural inversion of God's creation, and some experts hold that “homosexuals” are understood in Iran to be willing passive partners.”


ITEMID: 001-61057
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MÕTSNIK v. ESTONIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1959 and lives in Tallinn.
9. On 1 June 1994 the Tartu police initiated criminal proceedings against the applicant on the suspicion of having committed an offence of satisfying his sexual desire in an unnatural manner.
10. On 25 October 1994 the applicant was formally charged with this offence. On the same day he was subjected to a preventive measure in the form of an obligation not leave his place of residence.
On 22 November 1994 the applicant was further charged with attempted rape.
11. On 13 January 1995 the preliminary investigation of the charges was complete.
On 18 January 1995, upon approval of the indictment by the Tartu Public Prosecutor, the applicant's criminal case-file was sent to the Tartu City Court (Tartu Linnakohus).
12. On 7 January 1997, by a decision of the City Court judge, the applicant was committed for trial.
13. On 17 February 1997 the judge ordered the serving of the indictment on the applicant who received it on 4 March 1997.
14. On 30 June 1997 the applicant wrote a letter notifying the City Court of his change of residence. However, he did not send out the letter, but handed it to his lawyer.
15. On 13 October 1997 the City Court summoned the parties and the witnesses to a hearing which was scheduled for 16 December 1997.
16. On 7 November 1997 the City Court was informed that it had not been possible to serve the summons on the applicant at the address indicated by him in October 1994. Consequently, the hearing was postponed.
In mid-December, the applicant's lawyer delivered to the City Court the applicant's letter of 30 June 1997 about his new address.
17. On 19 December 1997 the City Court scheduled a hearing for 12 February 1998.
On 12 February 1998 the hearing was adjourned on account of the absence of the applicant's lawyer for health reasons.
18. On the same day the City Court ordered that the applicant be taken into custody. It noted that the applicant had four prior convictions and considered that he could re-offend.
The applicant filed an appeal against the order directly with the Tartu Court of Appeal (Tartu Ringkonnakohus) which, on 17 February 1998, forwarded it to the City Court as appeals to a higher court must be presented through a lower court. On 5 March 1998 the Court of Appeal rejected the applicant's appeal.
19. In the meantime, on 18 February 1998, the City Court scheduled a new hearing for 11 March 1998.
On 2 March 1998 the applicant's lawyer requested that the hearing be adjourned as it was not possible for him to attend because of a meeting of the Bar Association. His request was granted.
20. On 4 May 1998 the applicant complained to the Office of the Chief Public Prosecutor (Riigiprokuratuur) about the delay in examining his case.
On 5 May 1998 he addressed a similar complaint to the Ministry of Justice, which asked the City Court to inform it of the reasons for lack of progress in the case.
21. On 21 May 1998 the City Court scheduled a hearing for 2425 August 1998.
22. By letters of 25 May 1998 and 26 May 1998 the Ministry of Justice and the prosecutor's office, respectively, informed the applicant that the reason for the delay in dealing with the case from January 1995 until late 1997 was the City Court's heavy workload. They also stated the reasons for the postponement of the hearings.
23. On 20 June 1998 the applicant requested the appointment of a lawyer by the court as he was dissatisfied with the services of the lawyer chosen by him.
24. The City Court heard the applicant's case on 24-25 August 1998.
On 24 August 1998 the applicant sought the adjournment of the hearing, arguing that the preliminary investigation had been incomplete and that he did not have a copy of the indictment, which was in the hands of his previous lawyer. He also disputed the legality of the appointment of his new lawyer and requested the removal of the public prosecutor from the case. His requests were dismissed as unfounded.
25. By a judgment of 26 August 1998 the City Court convicted the applicant of attempted rape and sentenced him to 4 years' imprisonment. The City Court heard the testimonies of the victim and two witnesses and examined two medical expert reports.
26. On 1 September 1998 the applicant lodged an appeal against the City Court judgment, arguing that his trial and conviction had been unlawful. The City Court had infringed procedural time-limits concerning the start of the trial stipulated in Articles 184(1) and 204 of the Code of Criminal Procedure according to which the court must take a decision to try the accused within 10 days from the seizure of the court, and the trial must start no later than 20 days from the taking of that decision. The applicant pointed out that his criminal case-file arrived in the City Court on 18 January 1995, but the decision committing him for trial was taken only on 7 January 1997.
At the hearing before the Tartu Court of Appeal on 28 October 1998 the applicant also pointed to the delay in examining his case at the first instance court.
27. By a judgment of 28 October 1998 the Court of Appeal dismissed the applicant's appeal and upheld the City Court judgment. It admitted that the time-limit for committing the applicant for trial had been exceeded, but found no substantial infringement of procedural law which would have entailed a reversal of the lower court judgment.
28. On 24 November 1998 the applicant filed an appeal with the Supreme Court (Riigikohus) in which he argued that the two-year delay in dealing with his case at the trial court was unlawful.
29. On 9 December 1998 the Supreme Court refused the applicant leave to appeal.
30. On 1 March 1999 the competent prosecutor refused the applicant's request to initiate criminal proceedings against the judge of the first instance court as the failure to comply with the procedural time-limits did not constitute a criminal offence.
31. By a letter of 5 March 1999 the Ministry of Justice informed the applicant that there were no grounds to initiate disciplinary proceedings against the judge since there was no evidence of an intentional infringement of procedural rules by him. However, the judge's attention had been drawn to deficiencies in his work.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81203
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FERREIRA ALVES v. PORTUGAL (No. 3)
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1953 and lives in Matosinhos.
6. When the applicant and his wife, H., separated, the Oliveira de Azeméis District Court, in a judgment of 10 July 1996, awarded parental responsibility for the couple’s daughter Rita to the child’s mother. The applicant was granted contact rights.
7. On 19 October 1998 H. brought proceedings before the Oliveira de Azeméis District Court seeking to have the applicant’s contact rights withdrawn. She alleged, in particular, that Rita did not wish to see her father and that since July 1998 she had shown signs of emotional distress after each visit to the applicant. The applicant objected to the request.
8. On 17 February 1999 the public prosecutor, acting in the child’s interests as required by the law, requested the judge to order a social inquiry report regarding Rita’s parents and a medical examination of the child. In an order of 22 February 1999 the judge acted on the prosecutor’s recommendation and asked the Institute for Social Reintegration (“the Institute”) to carry out the social inquiry. The judge refused a request by the applicant for H. to undergo a psychiatric expert examination, taking the view that it was not “appropriate”. On 11 March 1999 the applicant lodged an appeal against that decision. The judge decided to adjourn consideration of the appeal until the court gave its final judgment. The applicant then lodged a complaint with the President of the Oporto Court of Appeal seeking to have his appeal considered immediately. In a note dated 12 April 1999 which he addressed, in accordance with the law, to the President of the Court of Appeal, the judge of the Oliveira de Azeméis District Court confirmed his earlier decision to adjourn consideration of the appeal. The applicant was informed of this note on 14 April 1999. On 26 May 1999 the President of the Court of Appeal rejected the complaint.
9. On 17 February 2000 the applicant objected to the participation, as the representative of the public prosecution service, of the public prosecutor attached to the Oliveira de Azeméis District Court. He submitted that the official concerned had been removed from the case concerning the award of parental responsibility by his superior, the Oporto Regional AttorneyGeneral. In the applicant’s view, he should therefore withdraw from the current proceedings.
10. The judge requested the Regional Attorney-General to take a decision in that regard. On being informed of the request, the public prosecutor indicated in a document dated 3 March 2000 that he did not wish to comment on the matter, preferring to await the recommendation of the Regional Attorney-General. The applicant was not informed of the public prosecutor’s position.
11. On 30 March 2000 the Regional Attorney-General informed the judge of the Oliveira de Azeméis District Court that he had initially removed the prosecutor attached to that court from the case concerning the award of parental authority because criminal proceedings had been instituted against him following a complaint by the applicant. As the criminal proceedings had been terminated in the meantime, he had seen no further reason to keep the official concerned off the case concerning Rita. For that reason he had annulled his earlier decision. The Regional AttorneyGeneral appended several documents to his information note. The applicant was not informed either of the note or of the appended documents.
12. By an order dated 16 May 2000 the judge, referring to the information note from the Regional Attorney-General, rejected the applicant’s request for the prosecutor to withdraw. The applicant appealed against the order and requested that his appeal be considered at the same time as a possible appeal by him against the judgment.
13. On an unspecified date the applicant, relying on Article 6 of the Convention, asked to be informed of the various actions taken by the prosecution service in the proceedings.
14. In an order dated 6 June 2000 the judge refused the request, stating, inter alia, as follows:
“No rule exists requiring or recommending that the parties be informed of the actions taken by the prosecution service. The Portuguese judicial system does not permit such a step. The public prosecution service is neither a sovereign body nor an ordinary party to the proceedings. It possesses a separate status, enshrined in the Constitution. Citizens must respect the sovereignty of the Portuguese State and the legal and constitutional system in force, even if they challenge the system; this is a requirement of democracy [and] the rule of law.”
15. The applicant appealed against that decision on 23 June 2000. In an order of 28 June 2000 the judge declared the appeal inadmissible, taking the view that the impugned order related simply to the conduct of the proceedings (despacho de mero expediente) and was therefore not amenable to appeal. The applicant lodged a complaint against the new order with the President of the Oporto Court of Appeal, who rejected it on 23 January 2001.
16. On 9 June 2000 the public prosecutor commented on the content of the medical reports concerning Rita. He considered that the case was ready for trial and requested the judge to summon the two experts who had prepared the reports to attend the hearing. The applicant was not informed of the document submitted by the public prosecutor.
17. In an order of 13 June 2000 the judge set the case down for hearing on 22 and 23 November 2000. On the recommendation of the public prosecutor he decided to summon the two medical experts to appear.
18. As counsel for H. and Rita was absent, the hearing did not take place on 22 and 23 November 2000. On 31 January 2001 the judge issued an order in which he decided to adjourn the hearing until all the expert reports were available. Some of the expert examinations had had to be postponed several times owing to the absence of the applicant and H. They were conducted in May 2001 and March 2002 and the corresponding reports were added to the file on 24 and 28 June 2002.
19. In an order of 8 July 2002 the judge requested the Institute to carry out a further social inquiry concerning Rita. The corresponding report was added to the file on 13 December 2002. In a reversal of an earlier decision of 22 February 1999, the judge decided that the forthcoming hearing would not be tape-recorded. On 16 September 2002 the applicant appealed against that decision. On 11 July 2003, in accordance with the law, the judge of the Oliveira de Azeméis District Court addressed a note to the judges of the Court of Appeal reaffirming his decision. The applicant did not receive a copy of the note. In a judgment of 23 October 2003 the Oporto Court of Appeal dismissed the appeal of 16 September 2002.
20. On 2 July and 15 September 2003 the public prosecutor, referring to the findings of the Institute’s report, proposed to the judge that the applicant be granted provisional contact rights allowing him to meet Rita once a week in a public place. On 1 October 2003 the applicant, when invited to comment, stated that he had not been informed of the Institute’s report; he alleged a violation of Article 6 of the Convention on that account.
21. On 17 November 2003 the judge ordered that copies of all the medical and social reports be sent to the parties. He also awarded the applicant provisional contact rights. On 7 January 2004 the applicant appealed against the order, and more specifically against the conditions attached to his contact rights. In a judgment of 3 June 2004 the Court of Appeal dismissed his appeal.
22. Hearings took place on 24 May and 14 June 2004 and the court delivered its judgment on 15 July 2004. Basing its decision in particular on the deposition made by Rita, which it considered enlightened and persuasive, it allowed H.’s application in part and, while not withdrawing the applicant’s right of contact altogether, restricted it to two hours a week. The applicant appealed against that judgment to the Oporto Court of Appeal.
23. In a judgment of 9 June 2005 the Court of Appeal dismissed all the appeals lodged by the applicant during the proceedings and upheld the impugned judgment in its entirety. With particular reference to the appeal against the order of 16 May 2000, the Court of Appeal stressed that the prosecution service, while it could become an objective ally or adversary of the parties, had no power of decision, that power being reserved for the judge. It considered that there had been no breach of Article 6 § 1 of the Convention.
24. Article 744 of the Code of Civil Procedure, in its relevant part, reads as follows:
“1. On expiry of the time allowed to the parties to submit their respective memorials, the registry shall add any memorials that have been received to the case file, together with authenticated copies (certidões) and annexes, and shall submit them all to the judge to enable him to confirm his decision (sustentar o despacho) or rectify it (reparar o agravo).
2. If the judge confirms his decision, he may order that further authenticated copies be added to the file, which shall then be forwarded to the higher court.
...”
25. If the judge decides to confirm his decision, he must address a note to the competent court informing it of his position. This note is not communicated to the parties; the Evora Court of Appeal gave a judgment in which it considered that communicating the note served no purpose as it was not capable of conferring any rights on the parties or withdrawing such rights (judgment of 29 March 1979, published in Colectânea de Jurisprudência, 1979, Vol. II, p. 383).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1