ITEMID: 001-100293
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF UZUN v. GERMANY
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (victim);No violation of Art. 8
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
TEXT: 5. The applicant was born in 1967 and lives in Mönchengladbach.
6. In spring 1993 the North Rhine-Westphalia Department for the Protection of the Constitution (Verfassungsschutz) started a long-term observation of the applicant. The latter was suspected of participation in offences committed by the so-called Anti-Imperialist Cell (Antiimperialistische Zelle), an organisation which was pursuing the armed combat abandoned since 1992 by the Red Army Fraction (Rote Armee Fraktion), a left-wing extremist terrorist movement.
7. As a consequence, the applicant was occasionally kept under visual surveillance by staff members of the Department for the Protection of the Constitution and the entries to his flats were filmed by video cameras. The Department also intercepted the telephones in the house in which the applicant lived with his mother (from 26 April 1993 to 4 April 1996) and in a telephone box situated nearby (from 11 January 1995 until 25 February 1996). Moreover, post addressed to him was opened and checked (from 29 April 1993 to 29 March 1996).
8. Likewise, S., a presumed accomplice of the applicant, was subjected to surveillance measures from 1993. The Hamburg Office for the Protection of the Constitution intercepted telecommunications from the phone in his parents' house as well as his post. Moreover, staff members of the Office occasionally observed him.
9. In October 1995 the Federal Public Prosecutor General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which the Anti-Imperialist Cell had claimed responsibility. The Federal Office for Criminal Investigations was in charge of the investigations.
10. Following this, the applicant and S. were kept under visual surveillance by civil servants of the Federal Office for Criminal Investigation, essentially during the weekends between 30 September 1995 and their arrest on 25 February 1996. Moreover, the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by the Federal Office for Criminal Investigations (from October 1995 to February 1996). The telephones in that house, in a telephone box situated nearby and in S.'s flat in Hamburg were tapped by order of the investigating judge at the Federal Court of Justice (13 October 1995 to 27 February 1996). That judge further ordered observation by the police of the applicant and S. as well as of the cars used by them. The Federal Office for Criminal Investigations also observed the entry of S.'s apartment by means of video cameras (October 1995 to February 1996). Moreover, it intercepted the professional radio communication used by S.
11. In October 1995 the Federal Office for Criminal Investigations further installed two transmitters (Peilsender) in S.'s car, which the applicant and S. often used together. However, the applicant and S. detected and destroyed the transmitters. As they suspected that their telecommunications were being intercepted and that they were being observed, they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities.
12. In view of this, the Federal Office for Criminal Investigation built a Global Positioning System (GPS) receiver into S.'s car in December 1995 by order of the Federal Public Prosecutor General. Thereby it could determine the location and the speed of the car once per minute. However, the data were only recovered every other day in order to prevent detection of the receiver. This observation lasted until the applicant's and S.'s arrest on 25 February 1996.
13. GPS is a radio navigation system working with the help of satellites. It allows the continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time. It does not comprise any visual or acoustical surveillance. As opposed to transmitters, its use does not necessitate the knowledge of where approximately the person to be located can be found.
14. In the criminal trial opened against the applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December 1997, dismissed the applicant's objection to the use as evidence of the results obtained by his surveillance with the help of GPS. It found that Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below) authorised the use of GPS in the instant case. The reliable information thus collected could therefore be used at trial. This information was confirmed by the evidence obtained by the – legal – video and personal surveillance of the defendants. Moreover, contrary to the applicant's submission, the use of GPS did not require a court order because it had been aggregated with other, legal, methods of surveillance. According to the Code of Criminal Procedure, surveillance via GPS did not have to be ordered by a judge, as opposed to measures interfering more profoundly with the right to self-determination in the sphere of information (Recht auf informationelle Selbstbestimmung). Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question.
15. On 1 September 1999 the Düsseldorf Court of Appeal convicted the applicant, inter alia, of attempted murder and of four counts of causing an explosion and sentenced him to thirteen years' imprisonment. It found that the applicant and S., who had been the only members of the so-called AntiImperialist Cell since spring 1995, had placed bombs in front of the houses of members or former members of Parliament and in front of the Peruvian Honorary Consulate between January and December 1995.
16. The Court of Appeal noted that the applicant had availed himself of his right to remain silent when faced with the charges and that S. had admitted taking part in the bomb attacks only in general terms, without giving any details. However, circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty.
17. In particular, the Court of Appeal found that for the bomb attack carried out following the GPS surveillance of S.'s car, it had been shown that the car had been parked close to the scene of the crime on the day the offence was committed and on a few days prior to it. Moreover, the car had been located close to the places where the defendants had photocopied, hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb. This evidence was corroborated by information obtained by other methods of surveillance, in particular, the video surveillance of the entry of the applicant's home and the visual surveillance of the defendants by staff of the Federal Office for Criminal Investigations. The defendants' participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications.
18. In an appeal on points of law the applicant complained, in particular, about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS.
19. By a judgment of 24 January 2001 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. It found that the collection of data by GPS had a legal basis, namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore, the information obtained in this manner could be used in the criminal proceedings against the applicant.
20. In particular, the use of technical locating devices such as the GPS did not interfere with the applicant's home. As the applicant was suspected of offences of considerable gravity, namely participation in bomb attacks committed by a terrorist organisation, the use of GPS was a proportionate interference with his right to respect for his private life (as protected also by Article 8 of the Convention) and his right to self-determination in the sphere of information. Other methods of investigation would have had less prospect of success, as the applicant and S. had often succeeded in evading other measures of observation.
21. Endorsing the reasons given by the Court of Appeal, the Federal Court of Justice further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary. However, the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate. In any event, there had not been a total surveillance of the applicant, which alone could violate the principle of proportionality and a person's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings.
22. The Federal Court of Justice conceded that following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph 32 below) provided that any long-term observation lasting for more than one month had to be ordered by a judge, irrespective of whether or not technical means of surveillance were used. The need for a court order did not, however, previously emanate from the Code of Criminal Procedure, constitutional law or Article 8 of the Convention.
23. The applicant subsequently lodged a complaint with the Federal Constitutional Court. He claimed, in particular, that his surveillance by the North Rhine-Westphalia and Hamburg Offices for the Protection of the Constitution and by the Federal Office for Criminal Investigations from October 1995 until February 1996 and the judgments of the Court of Appeal and the Federal Court of Justice had infringed his right to privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS. There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law. Moreover, the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing.
24. On 12 April 2005 the Federal Constitutional Court, having held a hearing, dismissed the applicant's constitutional complaint (file no. 2 BvR 581/01). It found that his complaint was ill-founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal.
25. The surveillance of the applicant with the help of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. That provision was constitutional. In particular, the term “special technical means intended for the purpose of surveillance” was sufficiently precise. As opposed to visual or acoustic surveillance, it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS. The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques. However, there was a risk of infringement of the right to selfdetermination in the sphere of information, that is, the right of the individual to determine the use of data on him or her. Therefore, the legislator had to observe technical progress and, if necessary, safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions.
26. Moreover, the measure did not disproportionately interfere with the applicant's right to privacy. His surveillance did not destroy the essence of his private life. On the contrary, such surveillance by technical means could in some cases make more serious interferences, such as the interception of communications, unnecessary. Therefore, it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence (of considerable gravity) and if other methods of investigation had less prospect of success. Furthermore, the legislator had not been obliged to set up additional safeguards for long-term surveillance – which he later did by adopting Article 163f § 4 of the Code of Criminal Procedure – but could first observe the factual developments in this field.
27. Neither did the legislator have the duty to regulate the use of several surveillance measures at once. Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional, but could, as a rule, be prevented by the existing procedural safeguards. However, the Public Prosecutor's Office, when ordering a surveillance measure, had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time. Furthermore, the legislator had to observe whether, in view of future developments, the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities.
28. In the instant case, the interference with the applicant's rights by his surveillance by GPS was proportionate, notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance. The use of several observation measures at the same time had not led to total surveillance. He had been observed with the help of GPS only when he had travelled in S.'s car. Other surveillance measures had basically been used only at weekends and had consisted only to a minor extent of the interception of communications.
29. Article 100c § 1 no. 1 was inserted into the Code of Criminal Procedure by the Act on the fight against drug trafficking and other forms of organised crime (Gesetz zur Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der organisierten Kriminalität) of 15 July 1992. The relevant parts of Article 100c of the Code of Criminal Procedure, in its version in force at the relevant time, provided:
“(1) Without the knowledge of the person concerned
no. 1
a) photographs may be taken and visual recordings be made,
b) other special technical means intended for the purpose of surveillance may be used to investigate the facts of the case or to detect the perpetrator's whereabouts if the investigation concerns a criminal offence of considerable gravity and
if other means of investigating the facts of the case or of detecting the perpetrator's whereabouts had less prospect of success or were more difficult,
no. 2
private speech may be listened to and recorded using technical means ...
(2) Measures pursuant to paragraph 1 may only be taken against the accused. ... Measures pursuant to paragraph 1 no. 1 (b) ... may be ordered against third persons only if it can be assumed, on the basis of specific facts, that they are in contact with or will contact the perpetrator and that the measure will make it possible to establish the facts or to determine the perpetrator's whereabouts and if other means would offer no prospect of success or would be considerably more difficult.”
30. Pursuant to Article 100d § 1 of the Code of Criminal Procedure, in its version in force at the relevant time – just as for an order to tap a person's telephone (Article 100b § 1 of the Code of Criminal Procedure) – a court order was necessary to authorise the use of technical devices to bug and to record conversations made in private under Article 100c § 1 no. 2 of the Code of Criminal Procedure. However, that Article did not prescribe a court order for measures of investigation taken under Article 100c § 1 no. 1.
31. Pursuant to Article 101 § 1 of the Code of Criminal Procedure, the person concerned by a measure under Article 100c § 1 no. 1 (b) of that Code shall be notified of the measure taken as soon as this is possible without endangering the purpose of the investigations, public safety, life and limb of another person or the possible further use of an undercover agent involved in the measure.
32. On 1 November 2000 Article 163f of the Code of Criminal Procedure, on long-term systematic surveillance of suspects, entered into force. Pursuant to paragraph 1 of that Article, such surveillance lasting for more than twenty-four hours non-stop or applied on more than two days, could only be ordered in respect of persons suspected of an offence of considerable gravity and if other means of investigating the facts of the case or the suspect's whereabouts had considerably less prospect of success or were considerably more difficult. The measure was to be ordered by the Public Prosecutor's Office (paragraph 3). Pursuant to paragraph 4, the measure had to be restricted to a maximum of one month; any further extension could only be ordered by a judge.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-107556
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF O.H. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Persons of unsound mind);Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1952 and is currently in Straubing Prison.
6. Between 1970 and 1987 the applicant was convicted in eight judgments of offences including theft, robbery, extortion, assault and dangerous assault and spent some fourteen years in prison.
7. On 9 April 1987 the Munich I Regional Court convicted the applicant of two counts of attempted murder. It sentenced him to nine years’ imprisonment and ordered his preventive detention (Article 66 § 1 of the Criminal Code, see paragraphs 41-42 below).
8. The Regional Court found that in 1986 the applicant and an accomplice had shot at two policemen several times in order to escape arrest and criminal prosecution following the discovery of their plans to carry out an armed bank robbery using a stolen car. A psychological expert and a neurological expert consulted by the court, who had both examined the applicant in person, confirmed that the applicant was suffering from a personality disorder characterised, in particular, by antisocial conduct, which was, however, not serious enough to be classified as pathological. The court therefore considered that he had acted with full criminal responsibility. The applicant’s preventive detention was necessary as, owing to his criminal tendencies, there was a risk that he might commit similar serious offences in the future and he was thus a danger to the public.
9. On 21 August 1996 the Regensburg Regional Court ordered that the applicant’s preventive detention, imposed by the judgment of 9 April 1987 of the Munich I Regional Court, take place in a psychiatric hospital (Article 67c § 1 and Article 67a § 2 of the Criminal Code, see paragraphs 43 and 47 below) from 5 November 1996, when the applicant would have fully served his prison sentence. According to the report drawn up at the court’s request by an external psychiatric expert, L., the findings of whom the court endorsed, the applicant suffered from schizophrenia simplex characterised by autistic behaviour and from a serious personality disorder. The expert took the view that the applicant had not been diagnosed with that illness before 1990 because it was characterised mostly by disorders concerning the affectivity, thinking or personality and less by hallucinations or delusional ideas. He should therefore be transferred to a psychiatric hospital as soon as possible for socio-therapeutic treatment and medication. Without such treatment, the applicant, owing to his tendency to commit serious offences, was a danger to the public.
10. On 5 November 1996 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, in psychiatric hospitals in Haar and Straubing.
11. On 29 July 1999 the Regensburg Regional Court ordered that the applicant’s preventive detention should take place in prison instead of in a psychiatric hospital (Article 67a § 3 of the Criminal Code, see paragraph 47 below). It considered that the applicant’s preventive detention in a psychiatric hospital was not helping to rehabilitate him.
12. The Regional Court noted that the psychiatric expert, L., whom it had consulted in 1996, had taken the view that the applicant’s chronic schizophrenia could be better treated and his rehabilitation better furthered in a psychiatric hospital. A doctor at Haar Psychiatric Hospital had considered that the applicant suffered from an antisocial personality disorder and, possibly, from psychosis of a schizophrenic nature. The treating doctors at Straubing Psychiatric Hospital had, however, taken the view that the applicant’s rehabilitation could not be furthered in that clinic as the applicant, who suffered from a schizophrenic-type disorder and antisocial conduct, had persistently refused any of the therapies offered. The Straubing prison authorities had opposed the applicant’s transfer back to prison, arguing that the applicant’s illness could only be treated in a psychiatric hospital. The court, having heard the applicant in person, endorsed the hospital’s findings.
13. Since 26 August 1999 the applicant has been detained in a separate wing of Straubing Prison for persons in preventive detention.
14. The continuation of the applicant’s preventive detention in prison was ordered by the Regensburg Regional Court on 21 June 2001.
15. On 13 May 2004 the Regensburg Regional Court ordered that the applicant’s preventive detention was to take place in a psychiatric hospital (Article 67a §§ 1 and 2 of the Criminal Code, see paragraph 47 below). On 25 June 2004 the Nuremberg Court of Appeal quashed that decision for lack of sufficient findings as to the illnesses or disorders from which the applicant suffered and as to the need to treat these in a psychiatric hospital and remitted the case to the Regional Court.
16. On 17 March 2005 the Regensburg Regional Court ordered that the measure of the applicant’s preventive detention be further enforced in prison. It underlined that for the applicant to be transferred to a psychiatric hospital under Articles 67a and 63 of the Criminal Code, it was only decisive whether the applicant’s rehabilitation could be better furthered thereby; the preconditions of Article 63 of the Criminal Code (see paragraph 48 below) did not have to be met.
17. The Regensburg Regional Court endorsed the findings of a psychiatric expert, W., it had consulted. The expert had considered that the applicant most probably suffered from a serious personality disorder with antisocial and schizoid elements, but not from schizophrenia simplex. As he refused therapy and his conduct had not changed substantially since 1986 he was liable to reoffend if released. The expert held that he should not be transferred to a psychiatric hospital under Article 67a §§ 1 and 2 of the Criminal Code. His rehabilitation could not be better furthered by such a transfer, as required by the said provision, because the disorder from which he suffered could not be treated primarily by medication and he refused therapy. Expert W.’s findings were contested by the medical director of the psychiatric wing of Straubing Prison, who maintained that the applicant suffered from an illness, schizophrenia simplex, which could be adequately treated only in a psychiatric hospital.
18. On 5 October 2006 the Regensburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the applicant’s preventive detention to continue even after completion of ten years in such detention (Article 67d § 3 of the Criminal Code, see paragraph 46 below).
19. The Regional Court found that the applicant was liable to commit further offences, in particular assaults and robberies, if released. It further considered that the applicant was not to be transferred to a psychiatric hospital under Article 67a § 2 of the Criminal Code because his rehabilitation could not be better furthered thereby. It referred in this respect to the findings of the psychiatric expert it had consulted, P., who had found that the applicant refused treatment in a psychiatric hospital. The court noted that the fact that the applicant suffered from a mental illness and the particular nature of that illness was not decisive for its finding under Article 67a § 2 of the Criminal Code that the applicant’s rehabilitation could not be better furthered in a psychiatric hospital. Its view that the applicant’s preventive detention should take place in prison was confirmed by the fact that the applicant’s previous transfer to a psychiatric hospital had not yielded any success.
20. In reaching its decision, the Regional Court had regard to the report dated 25 May 2006 submitted by expert P. The latter, who had examined the applicant in person, had taken the view that the applicant, an antisocial personality, suffered from a schizophrenic-type disorder characterised by noticeable problems in the person’s conduct, thinking and mood, which gave the impression of schizophrenia, but without any symptoms indicating actual schizophrenia. He had considered that the applicant did not suffer from schizophrenia, a diagnosis made following several previous examinations and as maintained by the medical director of the psychiatric wing of Straubing Prison, L., who still considered that the applicant could be adequately treated only in a psychiatric hospital. Expert P. noted that since 2002 the applicant was no longer being treated in the psychiatric wing of Straubing Prison.
21. The psychiatric expert had further considered that the applicant was likely to reoffend in view of his numerous previous convictions and the fact that he had committed his offences in 1986 shortly after having been released from prison. Moreover, he had subsequently been convicted of assault (in 1995) and of a drug offence committed in prison (in 1989). He hardly had any social contact outside prison. His personality disorder had not been treated as he had refused psychiatric therapy. He had also refused to apply for relaxations in the conditions of his detention and had announced that he would abscond if granted leave under escort. Measures would need to be taken to prepare his conditional release, such as finding contact persons outside prison, social training and relaxations in the conditions of his detention as soon as this appeared justifiable.
22. By 4 November 2006 the applicant had served ten years in preventive detention.
23. On 27 December 2006 the Nuremberg Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it found that there was still a risk that, if released, the applicant, owing to his criminal tendencies, might commit serious offences, in particular assaults, robberies or thefts, resulting in considerable psychological or physical harm to the victims (Article 67d § 3 of the Criminal Code). His continued preventive detention was therefore still proportionate.
24. The Court of Appeal endorsed expert P.’s finding that the applicant’s rehabilitation would not have been better furthered by his transfer to a psychiatric hospital as he refused treatment.
25. On 25 January 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that his continued preventive detention after completion of ten years on the basis of the amended Article 67d § 3 of the Criminal Code, which had entered into force after he had committed his offence, violated his human dignity, his right to liberty, the prohibition of retrospective punishment and the right not to be punished twice for the same offence under the Basic Law.
26. On 23 July 2007 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 241/07). It found that the applicant’s complaint had no prospects of success. The criminal courts had verified the continued danger posed by the applicant in accordance with the standards set by the Basic Law. Article 67d § 3 of the Criminal Code, as amended in 1998, permitted the continued preventive detention, for several decades if necessary, of incorrigible offenders who persisted in refusing any treatment and remained a danger despite their advancing age.
27. Since 26 August 1999 the preventive detention order against the applicant has been executed in a separate wing of Straubing Prison for persons in preventive detention. Persons in preventive detention have certain privileges compared with convicted offenders serving their sentence.
28. In particular, at the relevant time, persons in preventive detention had more wide-ranging possibilities to occupy themselves in their spare time (one extra hour could be spent outside on non-working days; use of a well-equipped sports room; additional private telephone calls). They had shorter lock-up hours (some five hours less per day), more generous visiting times (up to seven hours extra per month) and more wide-ranging opportunities to purchase goods (four extra opportunities to buy a larger variety of goods). They further had the right to wear their own underwear, use their own bed linen and bath robes, and have more pocket money. They had bigger cells (the applicant’s cell measures approximately 8.75 sq. m) which they could equip with bigger TV sets and additional furniture.
29. The applicant is considered by the Straubing prison authorities to be a nervous choleric person filled with hatred. Numerous disciplinary measures have had to be imposed on him, in particular for assaults on fellow prisoners and insults directed at the prison staff. He neither has contact with his fellow prisoners nor does he receive any visits from outside the prison. Since 1991 it has no longer been possible to assign him suitable work in prison.
30. As regards the therapy offered to the applicant, he stopped taking medication shortly after having started treatment for schizophrenia simplex with which he was diagnosed in 1990. This led to disturbances in his thinking, insufficient energy and a risk of occasional hallucinations. The legal preconditions for the forced administration of medication have never been met.
31. Between November 1996 and August 1999 the applicant was offered psychiatric treatment for schizophrenia simplex with which he had been diagnosed in Haar and Straubing psychiatric hospitals but he was unwilling to undergo treatment.
32. In Straubing Prison the applicant consistently refuses to accept the treatment offered or to meet the psychiatric experts who come to examine him in person.
33. On 19 February 2009 the Regensburg Regional Court, sitting as a chamber responsible for the execution of sentences, ordered the applicant’s preventive detention to continue under Article 67d § 3 of the Criminal Code. Endorsing the findings made by the psychiatric expert it had consulted, N., the court found that there was still a risk that the applicant, owing to his criminal tendencies, might commit serious offences if released. There was a risk, in particular, that he might commit assaults and robberies, resulting in considerable psychological or physical harm to the victims. The court further considered that the applicant’s preventive detention should not take place in a psychiatric hospital under Articles 67a § 2 and 63 of the Criminal Code because, as had been convincingly shown by the expert, the applicant’s rehabilitation could not be better furthered thereby. The fact that the applicant suffered from a psychiatric illness was not decisive for the decision to be taken under the said provisions.
34. The expert consulted by the court, who had to draw up his report on the basis of the case file as the applicant had refused to submit himself for examination, found that the applicant suffered from an antisocial personality disorder, characterised by a lack of empathy, disregard for social rules, aggressive behaviour and a lack of feelings of guilt. He further suffered from a schizophrenic-type disorder, which was generally characterised by eccentric behaviour and abnormalities in the person’s thinking and mood, which gave the impression of schizophrenia without any symptoms indicating actual schizophrenia: the applicant displayed eccentric and mistrustful behaviour, lacked social contact and experienced occasional hallucinations. It was, however, very unlikely that he suffered from schizophrenia simplex. The disorders from which the applicant suffered had still not been treated successfully and he continued to refuse therapy and medication. Therefore, the applicant’s rehabilitation could not be better furthered in a psychiatric hospital, where a lack of disciplinary measures could lead to him displaying even more antisocial conduct. He considered that the applicant should be transferred to a psychiatric hospital under Article 67a § 2 of the Criminal Code if he no longer refused to take the necessary medication.
35. On 17 March 2009 the Nuremberg Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.
36. On 13 December 2010 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the Regensburg Regional Court’s decision of 4 November 2010 not to order his immediate release in view of the Court’s judgment of 17 December 2009 in the case of M. v. Germany (cited above). It found that the applicant’s objections had to be examined in different proceedings to be instituted ex officio under Article 67e § 1 of the Criminal Code (see paragraph 44 below).
37. The city of Straubing did not subsequently apply for the applicant to be placed in a psychiatric hospital under section 1 of the Bavarian (Mentally Ill Persons’) Placement Act (see paragraph 49 below). The psychiatric expert it had consulted, who had examined the applicant in person, had considered that the applicant suffered from a personality disorder with antisocial and schizoid elements, but not from a schizophrenic psychosis. The applicant’s free will was not impaired by that personality disorder so that the requirements for a placement in a psychiatric hospital under the said Act were not met.
38. Following the leading judgment of 4 May 2011 of the Federal Constitutional Court on preventive detention (see paragraphs 51-55 below), the Regensburg Regional Court initiated proceedings for a fresh review of whether the applicant’s preventive detention was to be terminated in the light of the principles established in the said judgment. The psychiatric expert consulted in the proceedings had to draw up her report on the basis of the case-file as the applicant refused to have himself examined by her. She took the view that the applicant suffered from a mental disorder (a schizophrenic-type personality disorder and a dissocial personality) within the meaning of section 1 of the Therapy Detention Act (see paragraph 50 below). It was his dissocial personality which contributed considerably to his dangerousness. In the expert’s view, it was highly likely that the applicant would commit further violent offences if released. On 25 August 2011 the Regensburg Regional Court, endorsing the findings of the psychiatric expert, decided not to declare the execution of the preventive detention order against the applicant terminated. The proceedings are currently pending before the Court of Appeal.
39. The applicant is currently still in preventive detention, imposed by the Munich I Regional Court on 9 April 1987 and taking place in a separate wing of Straubing Prison for persons in preventive detention.
40. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:
41. The sentencing court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public (Article 66 of the Criminal Code).
42. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).
43. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which has not taken place immediately after the judgment ordering it becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is served prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends the execution of the preventive detention order and applies a measure of probation; supervision of the person’s conduct (Führungsaufsicht) commences with the suspension.
44. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this timelimit is two years (paragraph 2 of Article 67e).
45. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).
46. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the offender’s conduct. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a(3) of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
47. Article 67a of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them. Under Article 67a § 2, read in conjunction with § 1, of the Criminal Code, the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator’s reintegration into society can be better promoted thereby. The court may quash that decision if it later emerges that no success can be achieved by placing the perpetrator in a psychiatric hospital (Article 67a § 3). The duration of the placement is determined by the provisions which apply to the measure ordered in the judgment (Article 67a § 4).
48. The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
49. Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons’) Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act).
50. Furthermore, on 1 January 2011, following the Court’s judgment in the case of M. v. Germany (cited above), the Act on Therapy and Detention of Mentally Disturbed Violent Offenders (Therapy Detention Act – Gesetz zur Therapierung und Unterbringung psychisch gestörter Gewalttäter) entered into force. Under sections 1 § 1 and 4 of that Act, the civil sections of the Regional Court may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention. Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under Article 66 § 3 of the Criminal Code. The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life, physical integrity, personal liberty or sexual self-determination of another person. The person’s detention must be necessary for the protection of the public.
51. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
52. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003.
53. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 50 above). As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
54. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung; see § 89 of the Federal Constitutional Court’s judgment). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution (see §§ 82 and 89 of the Federal Constitutional Court’s judgment).
55. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
VIOLATED_ARTICLES: 5
7
VIOLATED_PARAGRAPHS: 5-1
7-1
VIOLATED_BULLETPOINTS: 5-1-a
5-1-c
5-1-e


ITEMID: 001-111178
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KOZHAYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Belarus);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Extradition);Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1974 and lives in Moscow.
6. On 21 September 2004 the Belarus authorities instituted criminal proceedings against the applicant on charges of extortion. On 11 November 2004 the applicant was found guilty of extortion and sentenced to four years’ detention in an open detention facility.
7. In 2005 the applicant escaped from the detention facility and arrived in Moscow.
8. On 1 April 2005 the Belarusian authorities issued an arrest warrant against the applicant in connection with his escape, which is a criminal offence in Belarus.
9. On 11 February 2009 the Prosecutor’s Office for the Gomel Region (in Belarus) opened criminal proceedings against the applicant for escape from the detention facility and for being an accomplice to an attempted murder by a group of people in 1998. This second accusation concerned Article 139 § 1 of the Belarusian Criminal Code in conjunction with its Article 14 (see paragraphs 62-63 below). On the same date, the Prosecutor’s Office ordered his detention and issued an arrest warrant.
10. On 23 November 2009 the applicant was arrested in Moscow and remanded in police custody. On the same day, the Belarusian authorities confirmed that the applicant was being prosecuted in Belarus and asked the Russian authorities to arrest him pending the submission of a formal extradition request.
11. A Russian prosecutor applied to the Savelovskiy District Court of Moscow seeking authorisation of the applicant’s detention with a view to extradition. On 25 November 2009 the District Court granted this request and ordered the applicant’s detention, referring to Articles 108 and 466 of the Russian Code of Criminal Procedure (“the CCrP”) and to Article 61 of the Minsk Convention (see paragraphs 31, 37 and 53 below). No limit on the duration of the applicant’s detention was specified in the detention order. The applicant did not appeal.
12. On 24 December 2009 the Russian Prosecutor General’s Office received an extradition request in respect of the applicant from the Belarusian authorities. It contained the following information:
“The investigation has established that [the applicant], acting with pre-meditation and in concert with Sh. and I., assisted I. in attempting to murder P. ... The victim remained alive ...
If extradited, [the applicant] would not be prosecuted or punished for any criminal offence other than those indicated in the extradition request... He will not be subjected to torture, inhuman or degrading treatment or punishment... The extradition request is not aimed at persecuting him for political reasons or on racial, religious or national grounds. The acts for which extradition is sought are not punishable by the death penalty ...”
13. On 18 January 2010 the District Court examined a request from a prosecutor and extended the term of the applicant’s detention until 23 May 2010, with reference to the statutory six-month period contained in Article 109 of the CCrP, as well as to Article 466 of the CCrP and Article 61 of the Minsk Convention. The District Court relied on the following considerations:
(i) the applicant was being prosecuted in Belarus for a particularly serious offence for which the statutory limitation period had not expired;
(ii) a detention order had been issued by Belarusian authorities; and
(iii) the applicant’s detention was necessary in relation to an “extradition check procedure” pending in relation to the extradition request from the Belarusian authorities.
14. The detention order of 18 January 2010 was upheld on appeal on 24 February 2010.
15. On 12 April 2010 the Russian Prosecutor General’s Office issued an extradition order on the charges under Article 139 § 1 of the Belarusian Criminal Code, in the following terms:
“[The applicant] has been charged under Articles 139 § 1 and 415 of the Belarusian Criminal Code, in conjunction with its Article 14 ... He has been accused of assisting, in concert with others, Mr I. in committing attempted murder ...”
Extradition on the charges under Article 415 of that Code was refused. The extradition order does not contain an assessment of the risk of the applicant being subjected to inhuman or degrading treatment or punishment.
16. After the expiry of the previous detention order on 23 May 2010, on 24 May 2010 the District Court examined a request from a prosecutor and extended the applicant’s detention until 23 November 2010. The court considered that the prosecutor’s delay in applying for the extension did not impede the court’s examination of the request and could not justify its dismissal.
17. On 23 June 2010 the Moscow City Court upheld the detention order of 24 May 2010.
18. In the meantime, the applicant sought judicial review of the extradition order of 12 April 2010 before the Moscow City Court. Several hearings were scheduled and adjourned because the applicant sought to obtain additional evidence, lodged refugee and temporary asylum applications and subsequently brought judicial review proceedings concerning those applications (see paragraphs 25-27 below), or because one of his lawyers could not attend a court hearing. The City Court considered that the outcome of the above applications and proceedings were relevant to the judicial review of the extradition order and that the review proceedings before it therefore required adjournment.
19. The applicant argued that he should not be extradited to Belarus because he feared being subjected to ill-treatment and capital punishment there and because he was a follower of the Hare Krishna movement.
20. On 6 September 2010 the City Court confirmed the extradition order. The court held as follows:
“... [The applicant’s] application to the migration authority for temporary asylum does not affect the examination of the extradition order on judicial review. Such application, lodged after his arrest, should not affect the court’s conclusions concerning the extradition order ...
As follows from the information provided by the Russian Ministry of Foreign Affairs, there is no information concerning any persecution in respect of [the applicant] in Belarus for political, religious or other reasons.
As follows from the Belarusian Criminal Code, the offence with which he has been charged in Belarus is not punishable by the death penalty. The Belarusian Prosecutor General’s Office provided assurances that [the applicant] would not be prosecuted for any other offenses committed prior to extradition and would not be subjected to any proscribed form of ill-treatment or punishment ...”
21. On 20 October 2010 the Supreme Court of Russia upheld the judgment of 6 September 2010. The appeal court held as follows:
“[The applicant’s] arguments concerning persecution on political or religious grounds were properly examined and dismissed by the first-instance court ... Its judgment should not be set aside because the extradition order was issued before any final court decision on the refugee application ...”
22. The twelve-month period of the applicant’s detention was set to expire on 23 November 2010. Thus, having examined a prosecutor’s request, on 19 November 2010 the City Court extended the applicant’s detention to 23 May 2011, the date on which the maximum statutory detention period of eighteen months would be reached (see paragraph 31 below). The court noted that the applicant had lodged an application before the Court; that the Court had indicated, under Rule 39 of the Rules of Court, to the Russian authorities not to enforce the extradition order until further notice; and that such indication remained in force. The court held as follows:
“The Supreme Court’s ruling of 29 October 2009 requires that detention of a person with a view to extradition should be determined under the procedure prescribed in Article 109 of the CCrP ... It provides that detention beyond twelve months and until eighteen months may be ordered, in exceptional circumstances, in relation to an investigator’s applications and in relation to particularly serious offences... The present case discloses exceptional circumstances, taking into account the gravity of the charges ...”
Apparently, the applicant did not appeal.
23. On 16 May 2011 the applicant was released from detention on an undertaking not to leave his town of residence.
24. As stated in a letter of 1 July 2010 signed by the representative of the Moscow Chapter of the International Society for Krishna Consciousness, the applicant was married to a Russian national and they were raising a child in compliance with the “Vedic standards”. The marriage ceremony had been religious and had followed the Vedic rules. As indicated in another similar letter, the applicant had joined the Hare Krishna movement in the 1990s and had been actively involved in the movement as a follower and a preacher.
25. The applicant applied for refugee status, stating that between 1992 and 2005 he had distributed printed material in Belarus about the Hare Krishna movement and had practised and taught yoga. From 1997 onwards he had started to “have problems” with the Belarusian authorities because of his religion and related activities. He had been arrested on several occasions. In 2004 he had wanted to open an educational institution in Minsk, which would have taught the teachings of Bhaktivedanta Swami. In 2004 he and his wife had been poisoned and his wife had been admitted to hospital. Thereafter, they had had to move to another town in Belarus. Soon thereafter, a criminal case had been opened against the applicant and he had been sentenced to four years’ imprisonment. He feared ill-treatment and the imposition of the death penalty on account of the criminal charges against him, if returned to Belarus.
26. By a final decision of 17 August 2010 the City Court rejected the applicant’s refugee application. The court considered that his allegations concerning criminal prosecution in the country of origin did not disclose any risk of ill-treatment; he had not provided any evidence concerning any previous persecution or a risk of persecution on religious grounds; between 2005 and his arrest in 2009 he had not sought protection in Russia on any such grounds; his application had thus been no more than a challenge to the extradition proceedings pending in respect of him.
27. In September 2010 the applicant applied for temporary asylum on similar grounds. His application was rejected by the migration authority on 4 October 2010. This refusal was confirmed by the Federal Migration Authority on 17 January 2011, stating that:
“The Belarusian Criminal Code provides for capital punishment as an exceptional penalty. Such sentences are carried out. Conditions of detention are in line with generally acceptable standards (see the Ministry of Foreign Affairs, no. 2031/1 of 10 March 2010). The Belarusian Prosecutor General’s Office indicates that the charges against the applicant do not entail the death penalty as a possible sentence. The MFA has no information about torture, ill-treatment, unlawful arrest, discrimination, persecution for racial, religious or social reasons in Belarus ... The applicant has not provided convincing facts in support of his fear of being a victim of religious persecution in Belarus. The criminal prosecution in respect of him has no connection to his claimed religious beliefs. He would be able to lodge an appeal against the trial judgment ...”
The applicant did not seek judicial review of the above refusals.
28. Everyone has the right to liberty and security (Article 22 § 1). Detention is permissible only on the basis of a court order. The length of time for which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2).
29. The term “court” is defined by the Code of Criminal Procedure (“the CCrP”) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54).
30. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2).
31. Chapter 13 of the CCrP governs the application of preventive measures. Detention is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a criminal offence punishable by at least two years’ imprisonment when it is impossible to apply a more lenient preventive measure (Article 108 § 1). A court request for remand in custody is submitted by an investigator (следователь) with the support of the head of the investigative authority or by the police officer in charge of the inquiry (дознаватель) with the support of a prosecutor (Article 108 § 3). A request for remand in custody should be examined by a judge of a district court or a military court of a corresponding level in the presence of the person concerned (Article 108 § 4). Appellate courts should examine appeals lodged against judicial decisions on remand in custody within three days (Article 108 § 11). The period of detention pending the investigation of a criminal case must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level. Further extensions up to twelve months may be granted with regard to persons accused of serious or particularly serious criminal offences (Article 109 § 2). Extensions up to eighteen months may be granted on an exceptional basis with regard to persons accused of particularly serious criminal offences (Article 109 § 3).
32. A preventive measure can be applied with a view to ensuring a person’s extradition in compliance with the procedure established under Article 466 of the CCrP (Article 97 § 2).
33. Chapter 54 of the CCrP (Articles 460-468) governs the procedure to be followed in the event of extradition.
34. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4).
35. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be denied: a Russian citizen (Article 464 § 1-1) or a person who was granted asylum in Russia (Article 464 § 1-2); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1-3); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law (Article 464 § 1-4); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1-5). Finally, extradition should be denied if the act that gave grounds for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1-6).
36. In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a penalty for another criminal offence in Russia, his extradition may be postponed until the prosecution is terminated, the penalty is lifted on any valid ground or the sentence is served (Article 465 § 1).
37. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to “take measures” in order to decide on the preventive measure in respect of the person whose extradition is being sought. The preventive measure is to be applied in accordance with established procedure (Article 466 § 1).
38. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2).
39. Verifying the compatibility of section 31 § 2 of the Law on the Legal Status of Foreign Nationals in the USSR of 1981, the Constitutional Court ruled that a foreign national liable to be expelled from Russia could not be detained for more than forty-eight hours without a court order.
40. Assessing the compatibility of Article 466 § 1 of the CCrP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
41. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the CCrP and the provisions in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests.
42. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or in excess of the time-limits fixed in the Code.
43. The Prosecutor General asked the Constitutional Court for official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition.
44. The Constitutional Court refused the request on the grounds that it was not competent to indicate specific provisions of criminal law governing the procedure and the maximum periods for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction.
45. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified.
46. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.
47. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish maximum periods for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...”.
48. In Ruling no. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“the Ruling”), it was stated that, pursuant to Article 466 § 1 of the CCrP, only a court could order the remand in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of remand in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s request for that person to be remanded in custody (paragraph 34 of the Ruling). In deciding to remand a person in custody, a court was to examine whether there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP.
49. In extending a person’s detention with a view to extradition, a court was to apply Article 109 of the CCrP.
50. When carrying out actions requested under the Minsk Convention, to which Russia and Belarus are parties, an official body applies its country’s domestic laws (Article 8 § 1).
51. Extradition for the institution of criminal proceedings can be sought with regard to a person whose acts constitute crimes under the legislation of the requesting and requested parties and which are punishable by imprisonment for at least one year (Article 56 § 2).
52. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is being sought, except in cases where no extradition is possible (Article 60).
53. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must make reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or detained before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).
54. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of remand in custody (Article 62 § 1).
55. In support of his complaint of a risk of ill-treatment, the applicant referred to a 1997 report from the United Nations Human Rights Committee; a 2000 report of the UN Committee against Torture; and 2005-2006 reports by the UN Special Rapporteur on human rights in Belarus.
56. The applicant also relied on a 2004 report of the UN Working Group on Arbitrary Detention and, deploring appalling conditions of detention in Belarus, the 2008 report on the international fact-finding mission from the International Federation for Human Rights (“the FIDH”).
57. Lastly, the applicant referred to the Human Rights Watch Report “Shattering Hopes. Post-Election Crackdown in Belarus”, as well as the report entitled “Belarus. Restrictions on the Political and Civil Rights of Citizens Following the 2010 Presidential Election” issued by the FIDH.
58. Furthermore, as reported by Amnesty International, in June 2010 the Belarusian House of Representatives set up a working group to draft proposals on imposing a moratorium on the death penalty. However, Belarus has continued to hand down death sentences despite international pressure. Reportedly, four people were sentenced to death for murder in 2009 and two people were sentenced to death for murder in 2010. In 2011 two more people were sentenced to death.
59. In 2010 the UN Committee against Torture considered the fourth periodic report of Belarus, which contained information in relation to the period under review (September 1999 – August 2009). In 2011 the Committee adopted, inter alia, the following conclusions (CAT/C/BLR/CO/4):
“... 6. The Committee is seriously concerned about numerous, consistent reports that detainees are frequently denied basic fundamental legal safeguards, including prompt access to a lawyer and medical doctor and the right to contact family members, and this pertains especially to those detainees charged under article 293 of the Criminal Code. Such reports include cases raised jointly by several special procedure mandate holders, including the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, and pertaining to, inter alia, Andrei Sannikov who made an allegation during trial in May 2011 about the denial of his rights to prompt access to lawyer, to contact family and to medical treatment despite injuries caused by the authorities during arrest, and Vladimir Neklyaev ...
10. The Committee is deeply concerned over the numerous and consistent allegations of widespread torture and ill-treatment of detainees in the State party. According to the reliable information presented to the Committee, many persons deprived of their liberty are tortured, ill-treated and threatened by law enforcement officials, especially at the moment of apprehension and during pre-trial detention. These confirm the concerns expressed by a number of international bodies, inter alia, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Human Rights Council (resolution 17/24), the United Nations High Commissioner for Human Rights and the Organization for Security and Cooperation in Europe. While noting article 25 of the Constitution which prohibits torture, the Committee is concerned about the substantial gap between the legislative framework and its practical implementation (arts. 2, 4, 12 and 16)...
11. The Committee continues to be deeply concerned about the persistent and prevailing pattern of failure of officials to conduct prompt, impartial and full investigations into the many allegations of torture and ill-treatment and to prosecute alleged perpetrators, the lack of independent investigation and complaint mechanisms, the intimidation of the judiciary, the low level of cooperation with international monitoring bodies, which have led to serious underreporting and impunity ...
16. While noting the information provided by the State party that the definition of torture contained in article 1 of the Convention is used for the purpose of criminal prosecution of perpetrators of acts of tortures and the Office of the Procurator-General is preparing a bill on amendments to the criminal legislation, the Committee is concerned that such definition of torture has never been applied by domestic courts. The Committee remains concerned that the national legislation does not contain provisions defining torture and ensuring absolute prohibition of the torture. It is also concerned that articles 128 and 394 of the Criminal Code do not criminalize torture in accordance with article 4, paragraph 2, of the Convention (arts. 1, 2 and 4) ...”
The Committee’s observations contain the following conclusions concerning conditions of detention and the death penalty in Belarus:
“19. While welcoming efforts made by the State party to improve the living condition of detained persons (CAT/C/BLR/4, paras. 21 ff.) and the State party’s acceptance of the recommendation made in the course of the universal periodic review to that end (A/HRC/15/16, para. 97.30), the Committee remains deeply concerned about continuing reports of poor conditions in places of deprivation of liberty, including an appeal by the Special Rapporteur on the question of torture concerning the conditions in several places of detention such as the SIZO in Minsk (A/HRC/4/33/Add.1, para. 16). This includes the problem of the overcrowding, poor diet and lack of access to facilities for basic hygiene and inadequate medical care (arts. 11 and 16) ...
27. The Committee is concerned by reports of the poor conditions of persons sentenced to death, and regarding the secrecy and arbitrariness surrounding the execution of persons sentenced to death, including reports that the families of persons sentenced to the death penalty are only informed days or weeks after the execution has taken place, that they are not given the opportunity for a last visit to the prisoner, that the body of the executed prisoner is not handed over to the family and the place of burial is not disclosed to them. Furthermore, the Committee is deeply concerned at reports that some death row prisoners are not provided with fundamental legal safeguards and the discrepancy between reports of the authorities and other, various sources on this matter. Although the Committee notes that a parliamentary working group continues to consider the possibility of establishing a moratorium of the death penalty, it regrets the execution of two death row inmates whose cases were being reviewed by the Human Rights Committee, despite its request for interim measures ...”
60. Some other reports and information concerning Belarus have been summarised by the Court in Puzan v. Ukraine, no. 51243/08, §§ 20-24, 18 February 2010.
61. Article 59 of the Belarusian Criminal Code provides, in its current version, that the death penalty can be exceptionally imposed for certain particularly serious criminal offenses related to premeditated murder with aggravating circumstances.
62. As follows from Article 139 § 1 of the Code, in its current version, murder is punishable by a prison term from six to fifteen years. The death penalty is enumerated in Article 139 § 2 among the possible sentences for certain specific situations, such as: murder committed by a group of people; murder of two or more people; murder of a child, an elderly person or a pregnant woman; murder in connection with kidnapping; and murder committed to cover up another criminal offence.
63. Article 14 § 1 of the Code provides a definition of an attempted/inchoate criminal offence. Its paragraph 2 specifies that “liability for an attempted offence should be imposed under the same Article of the Code”. Article 67 of the Code provides that the death penalty should not be imposed for an attempted offence.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-f
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-102754
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GIEDRIKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Mr Elijus Giedrikas, is a Lithuanian national who was born in 1971 and lives in Panevėžys. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 July 1999 a prosecutor instituted criminal proceedings in a case where a hostage had been taken in the territory of Lithuania, then removed and held in the Republic of Latvia.
On 10 November 1999 the applicant was arrested and questioned as a suspect in that case. On 11 November 1999 he was charged with taking a hostage and remanded in custody.
On 7 March 2000 the prosecutor ordered that the applicant be released from custody on bail.
On 6 December 2001 the prosecutor informed the applicant that a milder remand measure – the obligation not to leave his place of residence – would be imposed on him.
On 11 April 2006 the prosecutor of the Panevėžys Regional Prosecutor’s office discontinued the pre-trial investigation with regard to the applicant since the prosecution of the crime had become time-barred. The authorities also revoked the obligation for the applicant not to leave his place of residence.
The applicant appealed, arguing that the criminal proceedings in his case had been protracted and that the prosecutors, not being able to collect evidence against him, had been stalling the pre-trial investigation until the prosecution would become time-barred. Moreover, whilst the pre-trial investigation had been pending, he was obliged not to leave his place of residence and therefore could not travel, search for a job or participate in employment competitions. The applicant requested the prosecutors to reopen the pre-trial investigation and to discontinue his case on rehabilitation grounds.
By a ruling of 16 June 2006, the prosecutor dismissed the applicant’s request as unfounded. The prosecutor observed that the case was complicated as it involved twelve suspects and a crime which had been committed in the territories of two States – Lithuania and Latvia. It followed that the length of the pre-trial investigation was reasonable and did not violate the applicant’s right to a trial within a reasonable time. The prosecutor also observed that the crime had been committed in 1999 and that the national law provided for a five year term to prosecute it. Therefore it had been correctly decided to discontinue the pre-trial investigation as having become time-barred.
The applicant appealed.
On 16 March 2007 the Panevėžys City District Court found that the domestic law indeed provided for a possibility to discontinue the criminal proceedings as being time-barred. It observed, however, that a person’s guilt could be established only by a judgment of a court. By discontinuing the criminal proceedings as time-barred the applicant had been left accused of a crime with all the legal and moral consequences stemming from that. As under the domestic law the pre-trial judge could not himself discontinue the criminal proceedings on rehabilitation grounds, the Panevėžys City District Court returned the case to the prosecutor and ordered him to rectify the situation.
On 11 April 2007 the prosecutor again discontinued the pre-trial investigation with regard to the applicant on the ground that the prosecution had become time-barred. The applicant appealed.
On 16 August 2007 the Panevėžys City District Court, having examined the evidence collected during the pre-trial investigation, decided that there was no proof that the applicant had committed the crime with which he had been charged. Consequently, the pre-trial investigation in respect of the applicant had to be discontinued by way of acquittal. The Panevėžys City District Court further noted that even though on 16 March 2007 the case had been returned to the prosecutor, the latter failed to perform any actions for five months and had ignored the court’s ruling by repeating his original decision. The court decided that, in order to avoid further delays, it was competent to resolve the question itself, and ruled that the pre-trial investigation of the applicant had been discontinued on the ground that no crime had been committed.
The prosecutor challenged the decision, lodging a petition to the President of the Panevėžys City District Court.
On 31 August 2007 the President of the Panevėžys City District Court adopted the final procedural decision and dismissed the appeal.
The applicant instituted proceedings for non-pecuniary damage against the Republic of Lithuania. He argued that from 10 November 1999 to 31 August 2007 he had been a suspect in a criminal case, the proceedings lasted unduly long and therefore caused him great moral suffering. The applicant claimed 8,000,000 Lithuanian litas (LTL, approximately 2,317,000 euros (EUR)) in non-pecuniary damages and LTL 3,200 (EUR 927) which he paid for his defence in criminal proceedings.
In a decision of 10 June 2009 the Panevėžys Regional Court relied on Article 6.272 of the Civil Code and Article 6 § 1 of the European Convention on Human Rights and granted the applicant’s claims in part. The court found that when instituting criminal proceedings and charging the applicant the authorities followed the law. Moreover, the rules of criminal procedure were observed when remand measures – detention, bail, obligation not to leave his place of residence – were imposed on the applicant. The Panevėžys Regional Court found, however, that the pre-trial investigation in the applicant’s case had not been conducted with sufficient intensity and speediness, too few procedural actions had been performed and none at all for certain rather long periods. In contrast, no actions of the applicant that would have contributed to the length of proceedings were established. As a result, there was a breach of the applicant’s right to a trial within a reasonable time, enshrined in Article 6 § 1 of the Convention.
As to the non-pecuniary damage award, the first instance court acknowledged that the criminal proceedings at issue had caused the applicant much distress. The applicant was dismissed from his job and negatively portrayed in the press. His situation was further compounded by the length of the proceedings, the serious nature of the charges against him and the fact that he had to endure various remand measures. Those negative repercussions extended to the applicant’s family members. In the light of the above and having considered the practice of the European Court of Human Rights, the Panevėžys Regional Court deemed it equitable to award the applicant a sum of LTL 8,000 (EUR 2,317) for non-pecuniary damage he had sustained. Moreover, noting that the criminal proceedings against the applicant were discontinued on rehabilitation grounds, the court also decided that the State should cover the applicant’s defence costs in the sum of LTL 3,200.
On 14 May 2010 the Court of Appeal upheld the above decision, fully concurring with the first instance court to the effect that the length of the criminal proceedings was not justified. The award for non-pecuniary damage remained at LTL 8,000. The appellate court however lowered the sum for the applicant’s legal costs by LTL 1,000, because it was established that those costs were incurred on 27 December 2007 that is four months after the criminal proceedings had been discontinued.
The applicant submitted an appeal on points of law; however, by a ruling of 20 August 2010 the Supreme Court refused to examine it as raising no important legal issues.
On 17 September 2010 the Ministry of Justice ordered a bank to transfer to the applicant the sum of LTL 10,200, in “compensation for pecuniary and non-pecuniary damage”.
Article 6.272 of the Civil Code allows a civil claim for pecuniary and non-pecuniary damage, in view of the unlawful actions of the investigating authorities or court, in the context of a criminal case. The provision envisages compensation for an unlawful conviction, an unlawful arrest or detention, the application of unlawful procedural measures of enforcement. According to recent domestic case-law, this provision may also allow claims for damages arising from the excessive length of criminal proceedings (see Norkūnas v. Lithuania, no. 302/05, § 26, 20 January 2009).
The court practice also provides that on the basis of the above legal norm civil liability of the State arises irrespective of whether there was guilt of the investigating authorities or court. For the liability to arise it is sufficient that the authorities’ actions (inaction) would be unlawful, that they had caused damage and there must also be a causal link between those actions (inaction) and damage (the Supreme Court’s ruling of 4 February 2009 in civil case no. 3K-3-5/2009 and the ruling of 20 April 2007 in civil case no. 3K-3-169/2007).
Furthermore, Article 6.272 of the Civil Code is to be applied directly – a court must apply it in a civil case for damages irrespective of whether a procedural measure, which the plaintiff alleges has caused damage, had ever been challenged in criminal proceedings (the Supreme Court’s ruling of 7 June 2006 in civil case no. 3K-7-183/2006).