ITEMID: 001-68880
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HUDSON v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Richard Owen Hudson, is a British national, born in 1955 and living in Derby, United Kingdom. He is represented before the Court by Mr S. Jacobi, a lawyer practising in the United Kingdom.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a driver of one of the lorries that transported oil for NATO from Greece to the former Yugoslav Republic of Macedonia. He was involved in a car accident that happened on 26 July 1999, around 9.30 p.m., in which two persons lost their lives and three others were injured.
At 10.50 p.m., the investigating judge on duty was informed about the accident. At 11.15 p.m. the investigating judge and the public prosecutor went to the scene. A record of the scene was made and personal data taken from all participants in the incident as well as data concerning the vehicles.
The inspection report of the investigating judge stated, inter alia, the following:
“...
GENERAL CONDITIONS
The inspection was carried out at night, with no visibility and under dry and windy weather conditions. The traffic accident had happened about 10.00 p.m. under the same weather conditions
...
There are road markers on both sides of the road. The road has a horizontal sign - a full white line ...
...”
The report described the traces made on the road by the car, the position where broken glass and different parts of the car were found, and the damage suffered by other vehicles in the incident.
The investigating judge ordered that an expert report on civil engineering be prepared, photos be taken of the location of the accident and the applicant's blood be tested for possible presence of alcohol. She also took away the tachograph tape of the applicant's vehicle.
At 10.00 a.m., there was a hearing before the investigating judge. The applicant appointed a local lawyer on the recommendation of the British Consul. The applicant and his lawyer were present at the hearing. The minutes of the hearing, signed by the applicant, the judge and the interpreter, stated as follows:
“Due to the fact that the defendant is a foreign citizen and does not speak Macedonian, an authorised court interpreter, Petkova Projka from Gevgelija, was present at the questioning.
He was informed of the [Public Prosecutor's] Request to Open Investigation Proceedings with proposal that the applicant be put in detention ... dated 27.7.1999 on reasonable suspicion that he had committed a criminal offence of having endangered traffic safety within the meaning of Article 300 § 4 in connection with Article 297 § 3 of the Penal Code.
The court interpreter was replaced before the applicant had been informed of the [prosecutor's] request. Kristina Prenda [the second interpreter] from Gevgelija was engaged as a sworn court interpreter of the Gevgelija Trial Court.
After the applicant had been informed of the Request submitted by the prosecution [and] translated by Kristina Prenda - the interpreter ... the defendant stated that he had understood the Request to Open Investigation Proceedings with the proposal that the applicant be put in detention pending trial.
In accordance with Articles 3, 63 and 210 of the Code of Criminal Procedure [the applicant was informed] that he was entitled to remain silent, that he had the right to defend himself in any way he perceived best, or not to present his defence and not to answer questions, that he could call evidence and could appoint a legal representative, and, indeed, he appointed Saso Dukovski from Skopje as his legal representative ...
The defendant stated that he would remain silent, but that he would give his defence later in view of the fact that he felt depressed due to the accident.
...
The applicant's legal representative proposed that the applicant should not be detained pending trial, as there were no circumstances indicating that the defendant should be put in pre-trial detention, or that he would tamper with witnesses, or re-offend, and bearing in mind that the British Embassy would not allow the defendant to leave the territory of the [former Yugoslav] Republic of Macedonia and would not issue him a new passport.
The defendant stated that he had stopped of his free will and had not tried to abscond [from the place of accident]
...”
The investigating judge decided to detain the applicant pending trial.
The same day the investigating judge interrogated the other three drivers who drove lorries in the convoy with the applicant. They were from Croatia and Bosnia and Herzegovina. From the minutes of the questioning of two of them it appears that the applicant's lawyer was present at the questioning.
According to their separate accounts they had been driving at a speed of 70 km/hour in the direction Gevgelija-Skopje. The applicant, who was the last in the motorcade, overtook the third lorry on the section of the road that was marked with full white line on their side. When the applicant had started overtaking the second lorry and had been positioned on the lane reserved for the vehicles coming from the opposite direction, the driver of the first lorry had noticed that a car appeared from the curve and gave a signal to the applicant. The applicant had been trying to return to the lane, while the car had started to brake in order to avoid the collision with the applicant's vehicle. It had not bumped into the applicant's vehicle, but went to the right and off the asphalt road. As a result a huge amount of dust arose, so the witnesses had been unable to see what happened afterwards. One of the witnesses stated that he had noticed that the applicant had managed to return to the right lane. Afterwards he noticed that the front left side of the last lorry in the motorcade had been damaged and behind it the car had tumbled over on its right side.
On 29 July 1999 the three passengers in the car gave evidence to the investigating judge. The applicant's lawyer, albeit summoned, failed to appear at the hearing. According to their statements, on 27 July 1999 they had been travelling from Valandovo to Gevgelija in their cousin's car. After they had passed a curve, they suddenly noticed that their lane had been blocked by a freight vehicle coming from the opposite direction. The driver of the car had started to brake. In order to avoid direct collision the driver had turned sharply to the right and went off the asphalt road to the earth path. Their car had hit the grass embankment, and then the driver turned the steering wheel to the left. The car had started turning around and couple of times it hit one of the freight vehicles. It had continued to slide and stopped overturned on its right side. The witnesses had pulled themselves out of the vehicle and were taken to hospital in a taxi.
On 29 and 30 July 1999 the brother and the father of the deceased gave evidence to the investigating judge.
By decisions of 25 August, 24 September, 22 October and 19 November 1999 the investigating judge extended the applicant's pre-trial detention.
The applicant's lawyer objected to the expert report, communicated to him on 1 October 1999, as regarded its estimation of the speed at which the applicant and the car were travelling, and requested the expert to prepare an additional report. A translation of the report was transmitted to the applicant on 5 October 1999.
At a later date further information was provided by the expert.
On 6 October 1999, the applicant was brought before the investigating judge to give his view of the evidence presented so far. His counsel and the interpreter were present. The applicant maintained his right to silence. He and the interpreter signed the minutes. The applicant claimed that only those questions which dealt with his basic personal details were interpreted to him and that he was unaware of the purpose of the hearing.
On 20 October 1999, the applicant, who remained in pre-trial detention, was indicted for causing death and injuries by negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code. The indictment contained a schedule of the evidence which the Public Prosecutor adduced before the court. On 22 October 1999, the court interpreter who had immediately translated the contents of the indictment, gave a copy to the applicant. A copy was also given to the applicant's counsel. On 4 November 1999, a translated copy of the indictment was given to the applicant.
On 17 November 1999 a hearing took place before the Gevgelija Trial Court. The public prosecutor read out the indictment which contained a schedule of the evidence on which the prosecution relied. The interpreter orally translated the indictment. In the minutes it was recorded that the applicant stated that he had understood the indictment.
The applicant, in the presence of his lawyer, gave the following account:
“On 27 July 1999 around 9.15 p.m. I was travelling from Greece to [the former Yugoslav Republic of] Macedonia and I had already completed all procedures at the border. I was driving at a speed of 70 km/hour [in a motorcade] with three freight vehicles. First I started overtaking the third vehicle and I passed it, then I started overtaking the second vehicle in order to come behind the first freight vehicle. While I was positioning myself behind the first vehicle I noticed that from the opposite direction a vehicle was approaching, that is, I first saw the light of the vehicle and then the vehicle. I actually heard the sound of the vehicle that was braking out of control. Then I shifted behind the first vehicle and in order [for me to enter the right lane] the second vehicle decelerated its speed and I started to move behind the first vehicle. I had no reason to stop because I did not bump into anything, my vehicle and the vehicle from the opposite direction passed one by another. I started to decelerate. ... The first vehicle started to decelerate and I slowed down without braking ...
Then the police came and they approached my lorry - all of that in about twenty minutes. My passport was taken away, then I waited for half an hour and during that time I walked towards the vehicle, I mean the passenger vehicle, however, I could not get to it because there were so many people.
...
Then I went as, I said above, in the police vehicle. Then I was taken to hospital and to the site where the accident happened ...
I do not agree with everything that is stated in the indictment. I was not driving at a speed of 90 km/hour, I was driving at a speed of 70 km/hour. I did not see where the passenger vehicle was hit, I only saw that we passed one by another and then I lost it from sight. I think that the passenger vehicle was going at speed superior to 117 km/h. I think that the driver of the passenger vehicle had time to pass by safely and I think that the driver of the passenger vehicle, in a moment of panic, lost control of the vehicle. Maybe my lights blinded the driver of the passenger vehicle because in Britain the lights are directed oppositely, since we drive on the left side.
...
The fact that I was driving at a speed of 70 km/h I noticed from my tachograph. I had a tachograph in the vehicle when I entered [the former Yugoslav Republic of] Macedonia. I used the tachograph for twenty-four hours in my vehicle. On 26 July in the vehicle I put two tachographs, one in Greece which is a member of the European Union and one in [the former Yugoslav Republic of] Macedonia ...
I am hundred percent sure that I changed the tachograph at approximately 8.30 p.m. on the territory of [the former Yugoslav Republic of] Macedonia ...
I changed the tachograph because of a different law of the European Union - a different regime.
...
The police requested my tachograph, I gave them the tachograph, and I want to make this clear: I gave three tachographs to the police, the tachographs that I previously pulled out and put into a folder, one of which I took out of the lorry and the other two that had already been pulled out.
...
[The speed] of my vehicle is limited to 85-86 km/hour according to the mechanic in the tachograph centre in Britain. The speed can vary 88, 86 km/h the most.
... The lights of my vehicle such as they are positioned helped me to see the passenger vehicle and maybe they blinded the passenger vehicle. The first time that I saw the light from the opposite side I thought that they were from another road, because of the curve and the angle of movement of light. And then the lights suddenly turned towards me.
...”
At that hearing the passengers from the car were also interrogated. They confirmed their statements given to the investigating judge. From the minutes it appears that the parties stated that they had not had any questions to put to the passengers.
The drivers of the articulated lorries, albeit summoned, failed to appear before the court.
The expert on civil engineering gave, inter alia, the following account:
“On the ground of the evidence submitted ... I prepared a written report ... I calculated and established the speed of the defendant before the overtaking and at the time of the overtaking according to the tachograph log sheet submitted from [the applicant's] vehicle and from the other tachograph log sheets taken from the three other freight vehicles. From the tachograph log sheet of the defendant in Greece after 12 noon [it appears that] he drove at a speed of 60 to 90 km/h and in some places he even moved with [speed] superior to 100 km/h, those were only occasional movements.
...
The tachograph log sheet was taken out at 8.30 p.m. That means that the tachograph log sheet shows the movement of the vehicle only until 8.00 p.m. and not after that. The log sheet until that time was in the tachograph. This is a one day log-sheet. [The log sheet] is unified and he could have entered [the former Yugoslav Republic of] Macedonia with it.
...
The speed of the other freight vehicles was established completely from the tachograph log sheets. It was approximately 70 to 72 km/h ....
All three [other freight] vehicles moved at the constant speed of about 72 km/h. For the defendant to overtake and the fact is that he overtook [them], the speed has to increase, at least for 20 km/h, since we know that the [other] vehicles were moving at 70 km/h.
...
The tachograph log sheet ... it cannot be established from which vehicle it originates nor the date can be established since it has to be noted down. If the time on the watch of the tachograph is set accurately than the time when the accident happened cannot be registered on the tachograph of the defendant. The [number] of km that appear on the tachograph of the defendant of 230km matches the number of km between Pathras and Evzoni ...
The distance between the third and the second vehicle was approximately 200m to 250m and was enough if [the applicant] was moving at speed of 90 km to overtake the third vehicle ... and to start overtaking the second vehicle ... Estimated from the tachographs, the car accident happened between 9.32 p.m. and 9.44 p.m. depending on the time set on the watch of the tachograph. The line of diagram of the defendant shows 90 km/h.
...
I took a general position that the maximum allowed speed was 100 km/h. If the driver or assistant driver, I am talking in general, is fastened with a safety belt, the probability that he would be thrown out from the vehicle in the case of the accident is very small. In this particular case, I do not know if the driver and assistant driver were fastened ...”
As the applicant's counsel put questions to the expert which he could not answer immediately, it was proposed to put the questions in writing for the expert to give his view later during the proceedings. Although an interpreter was present at the hearing, the applicant alleges that only the questions put to him were interpreted.
The hearing resumed on 1 December 1999 when again, according to the applicant, only questions directed at the applicant were translated by the interpreter. The expert replied to the defence counsel's previous questions. Defence counsel applied to obtain fresh expert evidence. The prosecution objected. The court rejected the application.
At the hearing of 13 December 1999 the medical expert gave evidence. The other drivers in the convoy still did not appear. With the agreement of the public prosecutor and defence counsel, their statements before the investigating judge were read out. The court again rejected the defence's proposal to obtain further expert evidence, finding that the explanations by the expert had established the facts to a sufficient extent. The final remarks of the parties were delivered.
On 16 December 1999 the applicant was found guilty of having committed a criminal offence with negligence within the meaning of Article 300 § 4 in conjunction with Article 297 § 3 of the Penal Code by the Gevgelija Trial Court. In particular, he had not observed the traffic rules and as a result of his negligent behaviour two people died and three other were injured. He was sentenced to two years and six months' imprisonment by the Gevgelija Trial Court. The court had examined additionally the statement of the father of one of the victims, the report of the Republic Institute of Jurisprudence Expertise, the report of the investigation on the spot with the sketch-map, the police report, the photos, the blood and urine test and the hospital discharge of the three passengers.
Relying on the above evidence the court, inter alia, found that:
“... on the motorway Gevgelija-Skopje the defendant, travelling constantly at 90 km/h, which is 20km/h faster than the allowed speed for that category of vehicles, overtook the third freight vehicle and lined in the motorcade behind the second freight vehicle, shortly after at the same speed, he started outflanking and overtaking the second freight vehicle, although it was dark and the visibility was low, nearby the difficult curve to the right, where ... a white full line indicates that overtaking and driving in the first lane is prohibited, just as the defendant was about to complete his action, a car appeared ...
... from the curve on the opposite side of the motorway, because of the imminent danger of direct collision the driver now deceased started intensively to brake and after some time of intensive braking on his right lane, he stopped braking and turned the steering wheel to the right, avoided the collision with the defendant's vehicle and [the car] skidding went to the right and it completely went off the motorway into the right [grass] embankment, hit it, returned to the motorway where it turned over several times and overturned [the car] had slid for about 60 to 65 meters it went on the left lane where it first hit the left front of the third vehicle in the motorcade, driven by Lukica Menalo, and then it hit the left side [of the same vehicle] where the tool and spare tires are usually kept. According to the tachograph sheets taken from the freight vehicles of Lukica Menalo, Marijo Grmoja and Mile Maslac [the drivers], it is established that their vehicles [had been travelling] at constant speed of about 70 to 72 km/hour. The tachographs were in the mentioned vehicles [of Lukica Menalo, Marijo Grmoja and Mile Maslac] at the time of the accident. The tachograph taken from the defendant's vehicle shows that it had been put on 9.07 a.m. on 26 July 1999 and had been removed at 8.30 p.m. i.e. before the accident happened ... .and was sufficient that the defendant moved at speed of 90 km/h which was 20km/h more than the speed of the third and the second freight vehicle and it was approximately 20km/h higher than the allowed speed for that category of vehicles ... [to overtake the lorries].”
On 24 January 2000 the applicant's lawyer lodged an appeal with the Skopje Appellate Court. He complained, inter alia, that the lower court:
a) had failed to give reasons for its finding that the defendant's vehicle had been travelling at 90 km/hour;
b) had considered the incorrect tachograph evidence;
c) had failed to ensure that the car was subject to a technical examination;
d) did not note that the expert report on civil engineering was imprecise, that some elements were incorrect and that this shortcoming was not corrected in the additional report;
e) had failed to afford the defence the facilities to arrange for the blood of the deceased driver to be examined for its alcohol or drug content;
f) had based its judgment on the witnesses' statements which were imprecise and inconsistent; and
g) had paid little if any intention to the individual responsibility of the driver, as he drove at a higher speed than that allowed at that section of the motorway, that the car had not been technically examined and that the passengers had not fastened their seat belts.
At the public hearing of 14 March 2000, in the presence of another court interpreter, the Skopje Appellate Court dismissed the appeal and endorsed the reasons in the lower court's decision.
The Skopje Appellate Court reduced the applicant's sentence to two years' term of imprisonment holding that the fact that the driver of the car had been driving at a higher speed than the one allowed was a mitigating circumstance in respect of the applicant's guilt. The applicant alleged that nothing was translated to him apart from the figure “two years”.
On 29 April 2000, the applicant submitted an extraordinary petition for review to the Supreme Court, claiming inter alia that the facts of the case had not been properly established and the evidence wrongly assessed.
On 1 June 2000 the Supreme Court refused to examine the extraordinary petition for review (Барање за вонредно преиспитување на правосилна пресуда). The court, inter alia, found that the applicant was served with the Appellate Court's judgment through the court interpreter on 27 March 2000. The applicant's lawyer lodged the above petition with the Supreme Court on 29 April 2000, therefore after the one-month time-limit prescribed by Article 411 § 2 of the Code of Criminal Procedure.
On 12 July 2000 Gevgelija Trial Court ordered the applicant to pay damages to the victims of 4,310,000 denars.
In December 2000 the applicant was released from prison and returned to the United Kingdom.
After his arrest on 27 July 1999, the applicant claimed that he was forced to sleep in a chair in the police station and that he was given limited food. During his time in Gevgelija prison, he claimed that he shared a cramped, squalid cell without running water and with poor sanitary facilities. Although his cell had two beds and he mostly shared with another prisoner, there were occasions when there were five in the cell, with three sleeping on the floor. He spent 31 days in solitary confinement in a cell with a hole in the ground as a toilet.
The Government stated that on arrival at the police station on 27 July 1999 the applicant was accommodated in the office of the police administrator until 8.00 a.m. and that he was given food and watermelon. He contacted his wife several times by phone. After 8.00 a.m., he was placed in the detention room, which had sanitary facilities and running water. On the way to court for the hearing at 10.00 a.m. he was given a sandwich. After he was remanded in custody, at 8.20 p.m. on 27 July 1999 the applicant was taken to Gevgelija prison where he was accommodated initially alone in a double cell. On 28 July 1999, the vice consul of the British Embassy accompanied by the applicant's lawyer visited the applicant there. After some time, another inmate joined him in the cell and for a certain period he was detained in a three-bed cell. The detention facilities in the prison had been renovated in 1998 and each cell had a sanitary facility and running water. There were showers and shaving facilities available separately. The applicant was checked by the prison doctor regularly and on his request on five further occasions while on four occasions he was able to see a specialist outside the prison.
On 29 March 2002 the applicant was sent to Idrizovo Prison in Skopje to serve his sentence.
Article 22 § 6 provides, inter alia, that a bench of three judges of the first instance court shall decide on appeals lodged against the decisions of the investigating judge.
Article 382 § 1 provides, inter alia, that a person shall have the right to appeal against the decisions of the investigating judge.
Article 3 §§ 1, 2 and 3 provides, inter alia, that a person who has been summoned or apprehended shall be informed promptly, in a language that he understands, of the reasons for his summoning, apprehension or any charge against him, of his legal rights, and shall have the right not to make any statements. He shall be informed of his right to remain silent, to consult with a lawyer, to have a lawyer of his choice present during questioning, as well as, to inform a third party of the fact of his detention. Everyone arrested or detained shall be brought within 24 hours before a judge who shall promptly decide on the lawfulness of the detention.
Article 4 §§ 1 and 2 provides, inter alia, that everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone charged with a criminal offence shall be informed promptly, in a language which he understands and in detail of the accusations and circumstances against him, shall have adequate time and facilities for the preparation of his defence and the right to communicate with the legal representative of his own choosing, to be present at the trial and to defend himself in person or through legal assistance of his own choosing, to be given free legal assistance, when the interests of justice so require and to examine or have examined witnesses.
Article 63 §§ 1 and 2 provides, inter alia, that every person has a right to be legally represented in pre-criminal and court procedure. Before the first interrogation, the suspect in pre-criminal procedure and an accused person must be informed of the right to have a legal representative of their own choosing who may be present at the interrogation.
Article 70 provides, inter alia, that everybody detained shall have the right to consult his legal representative without any restriction or supervision.
Article 71 provides, inter alia, that the legal representative may undertake all the actions that the applicant has the right to undertake on the applicant's behalf.
Article 186 provides, inter alia, that the investigating judge shall promptly inform an arrested person of the right to appoint a legal representative who may be present at his questioning and shall assist the arrested person in finding a legal representative if the need may be.
Article 7 §§ 2 and 3 provides that everybody in the criminal proceedings shall be informed of his right to the free assistance of an interpreter provided that he cannot understand or speak the language used in court.
Article 8 § 4 provides that a foreign citizen who is apprehended shall have the right to submit his documents to the court in his language.
Article 210 §§ 1, 2, 4 and 8 provides, inter alia, that the accused who is being questioned shall first be asked about his personal data. Then he shall be informed of charges against him, the reasons why he is a suspect and he shall be asked to put forward his defence. He shall be informed of the right to remain silent. He may make statements without any restrictions in respect of facts against him and may state all facts in his defence. The accused may be questioned only after he finishes his statement.
A person may be questioned in the absence of his legal representative only if he waives this right, save in cases when the law provides that the presence of a legal representative is obligatory.
Article 193 § 4 provides, inter alia, that everybody detained pending trial may ask to be put alone in a pre-trial detention facility.
Article 194 §§ 1, 2 and 3 provides that the persons detained pending trial shall have the right of an uninterrupted daily rest of eight hours. They may obtain food, clothes, bed sheets, books, newspapers at their own expense if approved by the investigating body. The detained persons may use means necessary to maintain the hygiene in the pre-trial detention facility.
Article 195 provides, inter alia, that the officials working for the diplomatic representative offices may, on the approval of the investigating judge, visit and speak without any supervision with a person detained pending trial who is a citizen of their country. After the person is indicted such an approval shall be given by the president of the bench.
Article 197 §§ 1, 2 and 4 provides, inter alia, that the president of the competent trial court shall supervise the conditions of detention of the persons detained pending trial. He shall visit the detained persons at least once a week and, without the prison warders being present, inquire with the detained persons about the food they are given, other necessities and the treatment that they have received. The responsible judge shall undertake all the necessary measures to correct all the shortcomings in this respect. The president of the competent court and the investigating judge shall have the right to visit the detained persons at any time, speak to them and hear their complaints.
Under Articles 69 and 124 a lawyer has the right to consult all the documents in the case-file from the day the prosecution authorities request the investigating judge to open preliminary investigation. A defendant enjoys that right from the day he has been questioned by the investigating judge.
Article 160 provides that the parties may ask the investigating judge to undertake different actions in the course of the investigation.
Article 161 §§ 4 and 7 reads as follows:
“4. The prosecution, the defendant and the defendant's lawyer shall have the right to be present when an investigating judge is examining a witness who will not be heard at a public hearing ...
...
7. Persons present at the interrogation of a witness may ask the investigating judge to put questions to him ...”
Article 319 § 1 provides, inter alia, that at the trial after the presiding judge has finished the interrogation of a witness or an expert, the accused and his lawyer have the right directly to put questions to him on the approval of the presiding judge.
Article 325 § 1 reads as follows:
“When an allegation is based on a statement of a person, that person shall be heard at a public hearing. The right to cross-examine him shall not be lost because the transcript of his statement is read out, or because he has already given a written statement.”
Article 307 §§ 1 and 2 provides that the indictment against the defendant shall be read out at the beginning of the hearing by the prosecutor.
Article 308 §§ 1, 3, 4 and 5 and Article 309 § 4 provide that after the indictment is read out or orally explained the presiding judge shall interrogate the defendant. He shall ask the defendant whether he understands the indictment and if not the presiding judge shall elaborate it. Then he will ask the defendant to give his opinion on each of the items of the indictment and to present his defence. The defendant shall have the right not to give his defence. After the interrogation of the defendant the presiding judge shall ask him if he wishes to add something in connection with his defence.
Article 310 § 1 provides, inter alia, that the prosecutor and the legal counsel may interrogate the defendant.
Article 274 §§ 1 and 2 reads as follows:
“1. The parties shall have the right to call ... evidence at the hearing even after the case is listed for a hearing.
2. If the presiding judge dismisses the request to call fresh evidence, the parties shall have the right to call evidence at the public hearing.”
Under Article 314 § 2 the courts may obtain, even at their own motion, evidence which they consider will assist in establishing the truth.
Article 354 read together with Articles 355 § 3 and 275 provides that an appeal may be lodged with the Appellate Court when a hearing took place in the absence of the court interpreter.
Article 411 §§ 1 and 2 reads as follows:
“(1) A defendant who has been convicted and sentenced to imprisonment or to youth custody by a binding judgment shall have the right to lodge an extraordinary petition for review in the cases set forth in this Code.
(2) [The extraordinary petition for review] may be lodged within one month from the day the accused was served with a binding judgment”
Article 412 reads as follows:
“The Supreme Court shall have jurisdiction to deal with such an extraordinary petition for review.”
Article 413 § 1 in conjunction with Article 356 §§ 1, 2, 3, 4 and 6 lays down that the above petition may be lodged on the grounds that the act or omission of the convict does not constitute a criminal offence under the Penal Code, there is a justification excluding criminal responsibility, there is a justification excluding the prosecution of the convict (for example: he is granted amnesty), the lower courts applied law wrongly and a heavier penalty is imposed than the one prescribed by the Penal Code for such an offence.
Article 413 § 2 in conjunction with Article 355 §§ 1, 5, 8, 9 and 10 lays down that such a petition may be lodged on the grounds that the bench was improperly composed or the judgment was rendered by a judge who was not present at the hearing, the convict was not prosecuted by a competent prosecutor, the final judgment is based on inadmissible decisive evidence, the courts decided on issues other than the ones set out in the indictment and there is a breach of the principle of reformatio in pejus.
Article 413 § 3 specifies that such a legal remedy may be lodged if the convict's right to defence was breached during the course of the trial, or because the provisions of the Code of Criminal Procedure in respect of the appellate proceedings were breached provided that that was decisive for the outcome of the proceedings.
Article 414 §§ 2, 3, and 5 provides, inter alia, that the petition for review shall be lodged through the trial court, that the president of the trial court or of the competent court shall refuse to examine the extraordinary petition for review which was lodged out of the time limit, and that the competent court may decide to suspend an execution of a binding judgment until the petition for review is dealt with.
Article 415 in conjunction with Article 408 provides that when the Supreme Court grants the above petition it may substitute the binding judgment with its own verdict or quash the decisions of the lower courts and remit the case to them, or declare that the lower courts erred in law.


ITEMID: 001-97472
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GUZENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Volodymyr Stanislavovych Guzenko, is a Ukrainian national who was born in 1960 and lives in the town of Korosten, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's family and Mr. B. shared a communal apartment. In March 1998 the Korosten Local Executive Council granted Mr B.'s request to privatise his part of the apartment (“the disputed property”). Subsequently, Mr B. gave the disputed property as a donation to Mrs T. and Mrs Ta.
On 3 November 1998 the applicant and his wife instituted proceedings against Mr B., Mrs T. and Mrs Ta., and the Korosten Local Executive Council in the Korosten Court challenging the privatisation and seeking to have the donation contract declared null and void. In particular, the applicant alleged that Mr B., being a Russian national, had no right to privatise the disputed property.
Since Mr B. was residing in Russia, on 19 May 1999 the court asked the Embassy of the Russian Federation in Ukraine (the Embassy) to provide it with the information about Mr B.'s nationality. On 24 May 1999 the Head of the Consular Department of the Embassy replied that the requested information had been confidential. He further indicated that the Ukrainian authorities could lodge a request with the Ministry of Justice of the Russian Federation, as prescribed by Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”).
On 16 September 1999 the applicant sought a ruling to request the Russian authorities to state whether Mr B. had been a Russian national on the date of the privatisation. He also requested suspension of the proceedings until the Korosten Court received a reply. On 11 November 1999 the court granted the applicant's petition.
In December 1999 the request was transmitted to the Russian authorities. The Korosten Court requested that Mr B. be questioned, the applicant's claim be served on him and that he be summoned to the Korosten Court. The Korosten Court also asked for copies of the documents concerning Mr B.'s nationality on the date of the privatisation.
In the period from 3 November 1998 to 15 December 1999 the Korosten Court scheduled some ten hearings. They were scheduled at intervals ranging from several days and two or three months.
On 5 June 2000 Mrs T. and Mrs Ta. lodged a counterclaim, seeking a ruling to oblige the applicant's family not to hinder them in their use of the apartment. They also claimed compensation for pecuniary and non-pecuniary damage.
On 16 February 2001 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the reply from the Russian authorities had been received. Since the request was not executed in a due manner, it was sent back to the Ministry of Justice of the Russian Federation.
On 21 March 2001 the applicant lodged an additional claim. He requested the Korosten Court to rule that he had the right to use the disputed property.
On 12 February 2002 the Deputy Head of the Zhytomir Regional Department of the Ministry of Justice of Ukraine informed the Korosten Court that the request in respect of serving the documents and questioning Mr B. had not been performed by the Russian authorities, since Mr B. had failed to appear before them.
On 14 March 2002 the court scheduled a hearing. It was adjourned as the parties failed to appear.
On 3 April 2002 the Korosten Court dismissed the applicant's petition that a new request be sent to the Russian authorities. The applicant unsuccessfully challenged the judge sitting in his case.
On 23 April 2002 the court held a hearing in the case.
On 6 August 2002 Mr B. authorised Mr T. to represent him in the proceedings before the Korosten Court.
On 21 August 2002 the court partly allowed the claims lodged by Mrs T. and Mrs Ta. and rejected the applicant's claims. In particular, the court found that on the date of the privatisation Mr B. had had Ukrainian nationality. The court found no proof in support of the applicant's allegations. The applicant appealed against the judgment contesting, in particular, the first-instance court's finding that Mr B. had been a Ukrainian national at the time.
According to the Government's observations, in October 2002 the court of appeal, following the applicant's request, asked the Ministry of Justice of the Russian Federation to provide it with the information about Mr B.'s nationality. The reply containing information about Mr B.'s nationality reached the court of appeal on 19 June 2003. Neither the applicant nor the Government informed this Court of the content of that reply.
On 4 December 2002 the court of appeal dismissed the applicant's appeal as unsubstantiated and upheld the judgment given by the first-instance court.
In January 2003 the applicant lodged an appeal in cassation with the first-instance court, which transferred it for consideration to the Supreme Court.
On 31 October 2003 the Supreme Court remitted the appeal in cassation to the first-instance court, for certain shortcomings to be rectified by the applicant.
In a ruling of 3 December 2003 the Korosten Court stated that the applicant could re-lodge his appeal in cassation after these shortcomings had been rectified, but before 20 December 2003.
On 19 December 2003 the applicant re-lodged his appeal in cassation.
On 26 February 2004 the Supreme Court upheld the decisions of the lower courts.
The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January) provides as follows:
“1. The judicial authorities of the Contracting States shall extend legal assistance in civil, family, and criminal matters in accordance with the relevant provisions of the present Convention....... “
“When acting pursuant to this Convention, the competent judicial authorities of the Contracting States shall communicate with one another through their central, regional, and other agencies, unless a different liaison procedure is prescribed hereunder. The Contracting States shall determine lists of their central, regional, and other agencies duly empowered to maintain direct contacts by notice to the depository.”
“The Contracting States shall provide one another with legal assistance by performing such procedural and other acts as are stipulated by the legislation of the Contracting State requested to take such measures, including, but not limited to, the execution and sending of documents, the conduct of inspections and searches, the recovery and delivery of physical evidence, the performance of expert examinations, the questioning of parties to the proceedings, third parties, suspects, indicts, victims, witnesses, and experts, efforts to track down certain individuals, criminal prosecution, the extradition of persons to be held criminally liable or face that punishment already fixed for them in appropriate sentences, the recognition and enforcement of judgments in civil matters, verdicts on civil claims, executive endorsements, and the service of process.”
“1. When acting upon a letter of request, the authority addressed shall apply the legislation of its own country. If petitioned by the authority seeking assistance, it may also apply the procedural rules of the Contracting State where the latter is based, unless such rules are inconsistent with the legislation of the Contracting State where such assistance is sought.
2. If the authority addressed is not competent to satisfy the request submitted, it shall pass it onto a competent authority and shall notify the authority requesting assistance accordingly.
3. If petitioned by the authority seeking assistance, the authority addressed shall notify the latter and the other parties concerned of the time and place of the request's fulfilment so that they should be able to attend its satisfaction in accordance with the legislation of the Contracting State where such assistance is sought.
4. Where the precise address of the person identified in a letter of request is unknown, the authority addressed shall take the measures necessary to ascertain such address in accordance with the legislation of the Contracting State where such authority is based.
5. After completing its action on a letter of request, the authority addressed shall return the corresponding documents to the authority which applied for that assistance; where the legal assistance sought cannot be provided as requested, the authority addressed shall also report those circumstances that prevent such performance and shall return the corresponding documents to the authority seeking that assistance.”
“1. That judicial authority addressed by a letter of request shall serve process in accordance with that procedure in effect in its Contracting State if the documents to be delivered have been executed in the latter's language or in Russian or are accompanied by duly certified translations into such languages. Otherwise, it shall pass such documents on to the recipient if the latter agrees to accept them voluntarily.
2. If the documents concerned cannot be delivered at the address indicated in a letter of request, the judicial authority addressed shall initiate the measures necessary to ascertain such address. Should it prove impossible for the judicial authority addressed to find out that address, it shall advise the judicial authority seeking assistance accordingly and return the documents due for service.”
“The requested service of process shall be confirmed by an appropriate acknowledgement which shall be signed by the recipient and evidenced by the official seal of the judicial authority addressed, indicate the date of such service, and carry the signature of an officer of the serving judicial authority, or by another document issued by the latter and describing the manner, place and time of the service performed.”


ITEMID: 001-90358
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NERATTINI v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1938 and lives in Samos.
6. On 17 August 2007 the applicant was arrested in flagrante delicto for receiving a package containing 71 grams of cannabis and remanded in custody. Following his arrest, the applicant’s house was searched. The investigating authorities found and seized a large number of Egyptian and Greek antiquities, including small statues, ancient coins, vessels and fossils.
7. On 18 August 2007 the applicant was brought before the Public Prosecutor of Samos who charged him with having received a package containing drugs. Concerning the antiquities found in the applicant’s house, the Prosecutor decided not to press charges unless new evidence was adduced.
8. On 20 August the investigating judge at the Samos Criminal Court, after questioning the applicant, remanded him in custody with effect from 17 August, the date of his arrest, on the grounds that there were serious prima facie indications that the defendant had committed the drug-related offence and that it was necessary to prevent him from absconding and to make sure that he would not commit further offences.
9. On 24 August 2007 the applicant applied for release on bail.
10. On 10 September 2007 the Indictment Division of the Samos Criminal Court rejected the applicant’s request (decision no. 49/2007). It held as follows:
“... [the way that the packet was carefully prepared] reveals a dexterous and studied action, established by the choice of special means for the commission of the crime of drug trafficking, as well as a collective action. Furthermore, during the lawful search of the accused’s house ... a significant number of antiquities were found, including in particular, 41 coins from different periods, a small statue of Apollo, a small bronze statue of Bacchus, an ancient vessel, a fossil in lava from the volcano of Santorin, part of a fresco and numerous Egyptian antiquities, the possession of which demonstrates the perpetrator’s propensity to commit further offences relating to antiquities. In view of the above, there is very serious evidence of the applicant’s guilt and ... his request should be rejected since it is reasonably considered that even the replacement of his pre-trial detention by preventive measures would not be sufficient to ensure his appearance in court and the execution of any judgment the court may deliver.”
11. On 18 February 2008, the Public Prosecutor submitted to the Indictment Division of the Samos Criminal Court his proposal to prolong the applicant’s detention in compliance with Article 287 of the Code of Criminal Procedure (see paragraph 17 below), since the applicant had been in detention for six months.
12. On 7 March 2008 the Indictment Division of the Samos Criminal Court replaced the applicant’s pre-trial detention by preventive measures (decision no. 5/2008). In particular, it held that:
“... the prolongation of the applicant’s pre-trial detention is not absolutely necessary since he has a known residence in Samos, and has family and property in Greece, he has not made preparations with a view to absconding, he has never been a fugitive in the past and it is improbable, on the basis of his criminal record and his social and professional status, that he will commit further crimes if he is released. In the light of the above and in view of the applicant’s old age and serious health problems ... the Indictment Division considers that the prolongation of the detention imposes on the applicant a disproportionate burden and that his appearance in court and the execution of any judgment the court may deliver can be ensured by the above preventive measures: (a) prohibition from leaving the country and (b) an obligation to report to his local police station twice a month. ...”
13. Subsequently, the Public Prosecutor laid supplementary charges against the applicant for misappropriation of antiquities. On 28 March 2008 the investigating judge questioned the applicant in that connection.
14. It appears from the case-file that the criminal proceedings against the applicant are still pending before the investigating authorities.
15. The applicant suffers from various health problems, including chronic duodenal ulcer, persistent urinary problems, inguinal hernia (when part of the intestine bulges through a weak area in muscles in the groin, the area between the abdomen and thigh) and degenerative spine disorders. He often complains of hemoptysis (coughing up blood), intense epigastric pain and melena.
16. The applicant was frequently hospitalised in the Prison Hospital in order to undergo medical examinations. On several occasions he was granted leave to be consulted by external doctors and undergo special examinations in Public Hospitals, including gastroscopy, echocardiography and chest X-rays. According to the medical certificates submitted by the applicant and the Government, the results of a number of medical examinations (kidneys, bladder and prostate ultrasound, chest computed tomography, bronchoscopy and heart triplex ultrasound) were imminent. The applicant was prescribed medication for his urinary and gastro-intestinal problems. Concerning the inguinal hernia, surgical treatment was advised.
17. Article 6 of the Greek Constitution reads as follows:
“1. No person shall be arrested or imprisoned without a reasoned judicial warrant which must be served at the time he is arrested or remanded in custody, except when caught in the act of committing a crime.
...
4. The maximum duration of detention pending trial shall be specified by law; such detention may not exceed a period of one year in the case of felonies or six months in the case of misdemeanours. In entirely exceptional cases, the maximum durations may be extended by six or three months respectively, by decision of the competent judicial council.”
18. The relevant provisions of the Code of Criminal Procedure read as follows:
“1. During the preliminary procedure, if there are serious indications of guilt, preventive measures may be imposed on a person accused of a felony or an offence punishable with a sentence of imprisonment of at least three months, and provided that these measures are considered to be strictly necessary ....
...
3. Detention on remand may be imposed instead of preventive measures, provided that the conditions of paragraph (1) are fulfilled, only if the accused is charged with a crime and does not have a known residence in the country or has made preparations with a view to absconding or has been a fugitive in the past ... or it is reasonably considered that if he is released, it is most probable, in the light of his previous conduct or the special circumstances of the incriminated act, that he will commit further offences. The gravity of the charge cannot by itself serve to justify the detention on remand.”
“1. Where detention on remand has lasted six months in the case of felonies, or three months in the case of misdemeanours, the Indictment Division shall give a final, reasoned decision on the question whether to prolong detention or release the accused. ...
2. In all cases, and until adoption of the final decision, detention on remand in respect of a single offence shall not exceed one year for felonies or six months for misdemeanours. In exceptional circumstances these limits may be extended by six months or three months respectively by a reasoned decision, against which no appeal shall lie, of
(a) the Indictment Division of the Court of Appeal ...
(b) the Indictment Division of the Court of First Instance ...”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-2


ITEMID: 001-85859
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GARDNER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Richard Gardner, is a British national who was born in 1949 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 15 April 1998. On 1 September 2000, the applicant made a claim for widows’ benefits. On 8 September 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant made a request for reconsideration. On 26 September 2000 his claim was reconsidered but the decision remained unchanged.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-69287
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ROSLON v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Alfred Rosłoń, is a Polish national who was born in 1950 and lives in Warszawa.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 April 1995 the applicant lodged a claim with the Warsaw Regional Court (Sąd Wojewódzki w Warszawie) to have his defective car exchanged for a new one
The proceedings, following the defendant's cassation appeal, are pending before the Supreme Court.
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
“1. Parties
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-4523
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: PEDERSEN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: The applicant, a Norwegian citizen born in 1964, resides in Tanumshede, Sweden. Before the Court she is represented by Mr Jan Palmblad, a lawyer practising in Strömstad, Sweden.
The applicant and A.V. have two children: a son, A, born in 1983, and a daughter, H, born in 1984. Following the parents’ divorce in 1990, the children lived with their mother, the applicant, and had regular contacts with A.V. who lives in Norway. The applicant later started a relationship with H.E. who moved in with the applicant and the two children. In September 1995 it was discovered that he had sexually assaulted H and in November 1995 he was convicted and sentenced to one year in prison. As a consequence, during the period of September 1995 – May 1996 the social authorities in Tanum made an investigation of the family’s situation.
On 16 June 1996 A.V. removed the children from their home against the applicant’s will. The applicant then instituted proceedings in the Court of Enforcement (namsretten) of Hadeland and Land, invoking the 1980 Hague Convention on the Civil Aspects of International Child Abduction and requesting that the children be returned to her. On 31 July 1996 the court gave a decision in her favour and on 11 August 1996 the children were returned to Sweden.
On 20 November 1996 A.V. instituted custody proceedings in the District Court (tingsrätten) of Strömstad, requesting that custody of H be transferred to him. The District Court ordered the social authorities in Tanum to submit an opinion in the case, which they did on 5 December 1996. The opinion contained factual information on the family’s situation but did not express any preference as to which parent should be awarded custody.
The District Court held an oral hearing on 10 December 1996. The applicant, A.V. and their respective lawyers were present at the hearing. By an interim decision of 17 December 1996 the court decided that, pending the final determination of the custody issue, H should continue to live with the applicant.
A.V. appealed against the interim decision to the Court of Appeal (hovrätten) for Western Sweden. The applicant requested that the appellate court hold a further hearing in the case.
On 23 January 1997 the Court of Appeal rejected the request for a hearing, finding it unnecessary. It further quashed the District Court’s decision and prescribed that H should live with A.V. on an interim basis. No appeal lay against the appellate court’s decision.

On 19 February 1997 the applicant filed a petition with the Supreme Court (Högsta domstolen), requesting that the Supreme Court reopen the interim issue or decide that the lack of a hearing in the Court of Appeal constituted miscarriage of justice (domvilla).
By a decision of 28 February 1997 the Supreme Court rejected the applicant’s petition.
On 29 May 1997 the social authorities submitted its opinion on the custody issue to the District Court. Noting that the social authorities recommended that A.V. be awarded custody of H, the applicant considered that there were little prospects of success in the case. She proposed therefore that she and A.V. should continue to have joint custody of H but that H should live with A.V. An agreement to this effect was signed by the applicant and A.V. on 30 June 1997. Subsequently, at the request of both parties, the District Court struck the case out of its list of cases.


ITEMID: 001-98338
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GOROSHCHENYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1967 and lived in St Petersburg until his arrest. He is now serving his sentence in a correctional colony in Omsk.
6. On 4 October 1999 the applicant was arrested on suspicion of fraud. Two days later he was charged with aggravated robbery. On the following day the St Petersburg City Prosecutor authorised his detention, finding that the applicant was liable to reoffend, pervert the course of justice and abscond, as he was charged with a particularly serious criminal offence, had been living unregistered in St Petersburg and in 1995 had been placed on the wanted persons' list owing to his absconding from an investigation into aggravated fraud. The prosecution authorities used the same grounds while further extending on 25 October and 17 December 1999 and 23 June 2000 the detention of the applicant and his eight co-defendants.
7. On 12 May 2000 the applicant was charged with organisation of a criminal enterprise, twelve counts of robbery, unlawful possession of a weapon, theft of a weapon, forgery of documents, fraud, aggravated theft and intentional destruction of property. On 7 September 2000 he was committed to stand trial before the St Petersburg City Court.
8. On 6 October 2000 the St Petersburg City Court fixed the first trial hearing for 24 October 2001 and, without providing any grounds, held that the applicant should remain in custody. The Government, relying on a letter drafted on 17 July 2007 by the acting first deputy of the St Petersburg City Court President, stressed that it had been impossible to schedule the first trial hearing for an earlier date because the City Court judges had been overburdened with cases. In particular, 502 cases were pending before twenty judges.
9. The first hearing fixed for 24 October 2001, as well as the following one listed for 27 November 2001 had been adjourned because the presiding judge was participating in other unrelated proceedings. The hearing fixed for 10 January 2002 was rescheduled because a co-defendant was ill and two counsel failed to appear. The hearing on 25 January 2002 also did not take place owing to the absence of free courtrooms.
10. Between 29 January and 18 March 2002 the City Court held eighteen hearings. Of four hearings fixed between 18 March and 25 September 2002, two were postponed because the presiding judge was participating in other proceedings and two were rescheduled because two co-defendants and a lawyer were ill.
11. On 1 July 2002 a new Code of Criminal Procedure became effective. On the same day the St. Petersburg City Court extended the applicant's and his co-defendants' detention until 30 September 2002, holding that they were charged with especially serious criminal offences and were liable to reoffend, pervert the course of justice and abscond. The defendants and their lawyers were not present at the hearing.
12. On 7 October 2002 the Supreme Court of the Russian Federation quashed the decision of 1 July 2002, finding that the City Court had not summoned the defendants and their lawyers.
13. On the following day the City Court re-examined the detention issue and retrospectively extended the applicant's detention for three months, until 30 September 2002. It held that the applicant and his co-defendants were charged with serious criminal offences and that if released they could pervert the course of justice, reoffend or abscond. The City Court did not cite any factual circumstances supporting its conclusion of the defendants' liability to interfere with the proceedings, to commit another offence or escape the trial.
14. The two trial hearings fixed for 23 October and 11 November 2002 were adjourned because counsel was ill. The following hearing was scheduled for 28 November 2002.
15. On 23 December 2002 the Supreme Court quashed the decision of 8 October 2002 in respect of the applicant and ordered a re-examination of the detention issue. It noted that the applicant's lawyer had been summoned to the hearing on 8 October 2002. However, he had been ill and unable to attend. The Supreme Court, reiterating that the City Court had accepted the reason for the lawyer's absence as valid, concluded that in such circumstances it should have adjourned the examination of the detention matter in respect of the applicant.
16. The City Court once again re-examined the detention matter on 24 December 2002 and retrospectively extended the applicant's detention until 30 September 2002, referring to the same grounds as in the previous detention orders.
17. The applicant and his lawyers, including retained counsel, Mr R., appealed against the decision of 24 December 2002.
18. On 11 March 2003 the Supreme Court dismissed the applicant's appeal against the decision of 24 December 2002 because no procedural or substantive violations had been established and refused to examine the statement of appeal submitted by Mr R. because the latter did not attend the appeal hearing.
19. In the meantime, on 25 September and 26 December 2002 the St Petersburg City Court, using collective orders, extended the detention of all co-defendants, including the applicant, until 30 December 2002 and 30 March 2003, respectively. The reasons for the extensions were identical to those that had been given in the previous detention orders. Both detention orders were upheld by the Supreme Court on 9 December 2002 and 12 March 2003, respectively. The Supreme Court found no violations of substantive and procedural law.
20. Between 28 November 2002 and 13 March 2003 the City Court scheduled twenty-six hearings, of which six were postponed to obtain attendance of witnesses and victims, seven were adjourned owing to counsel's illness or inability to attend, four were rescheduled because defendants were not brought to the court-house from the detention facility and one was fixed for a later date to allow defendants to study new materials presented by the prosecution.
21. On 13 March 2003 the St Petersburg City Court extended the applicant's and his co-defendants' detention until 30 June 2003. It noted that the defendants were charged with particularly serious criminal offences, certain “episodes of criminal activity” had not yet been examined in open court and the defendants were still liable to abscond and pervert the course of justice. The trial hearing fixed for 13 March 2003 was rescheduled for 2 April 2003. On 26 May 2003 the Supreme Court examined the grounds of the applicant's appeal against the decision of 13 March 2003 and upheld the decision.
22. Between 2 April and 24 June 2003 the City Court listed twenty-nine hearings, of which two were postponed because the defendants were not transported to the court-house, two hearings were adjourned owing to the prosecutor's or counsel's illness and one was rescheduled because victims and witnesses failed to appear.
23. On 24 June 2003 the St Petersburg City Court extended the applicant's and his co-defendants' detention, holding that they were charged with serious criminal offences and were liable to abscond. It appears that on an unspecified date the detention order was upheld by the Supreme Court.
24. At the hearing on 25 June 2003 the applicant unsuccessfully asked the St. Petersburg City Court to invite his non-marital partner as a “public defender” in the proceedings.
25. Of four hearings fixed between 26 June and 7 July 2003, three were adjourned due to a lawyer's illness.
26. On 7 July 2003 the St Petersburg City Court held that another lawyer should be appointed to replace the frequently ill counsel. The new lawyer was afforded ten days to study the case file.
27. On 14 July 2003 the applicant complained to the City Court that he had been ill-treated in a detention facility. The City Court referred the complaint to the St. Petersburg City Prosecutor, who on 11 December 2003 dismissed it as unsubstantiated and informed the applicant of his right to appeal against that decision to a higher-ranking prosecutor or a court. No appeal followed.
28. According to the applicant, on the day of a court session reveille was at 5 or 6 a.m. Inmates were brought to a small room of 6 square metres where they were kept for several hours. The room was cold in winter. It was dirty and poorly lit. At about 9 a.m. transportation of inmates to the courthouse began. Inmates were placed into an overcrowded van and transported in inhuman conditions for many hours; the van called in on the way at several courthouses until the inmates reached their destination. The inmates received no food for the entire day.
29. On 21 July 2003 the St Petersburg City Court found the applicant guilty of aggravated robbery and fraud and sentenced him to twelve years' imprisonment. The City Court discontinued the proceedings in respect of the remaining charges either because the prosecution had dropped the charges or the limitation period had expired. It based its one hundred and thirty-four-page judgment on statements by numerous witnesses, victims and defendants who had been heard in open court, material evidence and expert opinions. The City Court, with the applicant's consent, read out statements by three witnesses who had not been heard in open court. Those statements were made during the pre-trial investigation. The applicant was represented by retained counsel who had assisted him throughout the criminal proceedings and a court-appointed lawyer.
30. On 15 January 2004 the Supreme Court examined the appeals lodged against the judgment of 21 July 2003. It discontinued the proceedings in respect of the fraud charges because the limitation period had expired and upheld the remaining conviction. The Supreme Court reduced the applicant's sentence to eleven years' imprisonment.
31. On 21 June 2007 the Kuybyshevskiy District Court of Omsk, having established that the applicant “had definitely taken his first steps on the road to improvement”, authorised his release on probation. The management of the correctional colony supported that finding. The applicant was released on 4 July 2007, after the decision of 21 June 2007 had become final.
32. From 14 October to 10 December 1999 the applicant was detained in facility no. IZ-47/1 in St Petersburg, commonly known as Kresty. On 10 December 1999 he was transferred to facility no. IZ-47/4 in St Petersburg, where he was kept until 3 April 2004.
33. According to the applicant, the general conditions of his detention in those facilities were similar. Relying on written statements by his former fellow inmates, he argued that he had been detained in three different cells in facility no. IZ-47/1 and ten different cells in facility no. IZ-47/4. The cells had six sleeping places and housed from eight to twenty-five inmates. Given the lack of beds, inmates slept in shifts. The sanitary conditions were unsatisfactory. The lavatory pan was not separated from the rest of the cell. At no time did inmates have complete privacy. Anything the applicant happened to be doing – using the toilet, sleeping – was subject to observations by warders or inmates. The cells were infected with bedbugs and lice but the administration did not provide any insecticide. Windows, measuring 0.6 square metres, were covered with thick metal bars that blocked access to natural light and fresh air. The bars were only removed in February 2003. In addition, only four cells had glazed windows. It was extremely cold in winter and was hot, stuffy and excessively damp in summer. There was no artificial ventilation. Inmates had an hour's daily exercise. On his admission to a detention facility he was given a mattress and a thin blanket. The food was of poor quality. Inmates were allowed to take a shower three times a month. The applicant contracted several infectious skin diseases. Medical assistance was not provided as the facilities lacked necessary medicines and encouraged inmates' relatives to bring them.
34. The Government, relying on certificates issued in July 2007 by the directors of the detention facilities, submitted that in facility no. IZ-47/1 the applicant had been detained in three different cells measuring 7.6 square metres and equipped with six sleeping places. In facility no. IZ-47/4 he stayed in nine different cells, measuring from 6.6 to 30.5 sq. m. On days when the applicant was to be transferred to a courthouse for trial hearings he was taken to “gathering cells” which measured 6.6 square metres. The Government did not provide information on a number of sleeping places in the cells in which the applicant had been kept in facility no. IZ-47/4. They also stressed that no information on the number of inmates in the both facilities was available as the documents had been destroyed. However, according to the Government, the applicant had an individual sleeping place at all times.
35. Citing the information provided by the directors of the facilities, the Government further submitted that the cells received natural light and ventilation through windows which had been glazed. Cells in facility no. IZ-47/1 had one window 1 metre wide and 1.1 metre long. The smaller cells in facility no. IZ-47/4 were equipped with one window and the bigger cells had two windows of the same size of 0.88 square metres. At the inmates' request window glass was removed in summertime and put back in when the temperature outside decreased. The windows were covered by thick bars with “eyelashes”, that is, slanted plates approximately two centimetres apart welded to a metal screen. In compliance with the recommendations of the Russian Ministry of Justice issued on 25 November 2002, the latter construction was removed from the windows on an unspecified date in 2003. The cells had ventilation shafts. The heating system in the both detention facilities functioned properly. The cells were equipped with lamps which functioned day and night. Each cell was equipped with a lavatory pan, a sink and a tank with potable water. The pan was placed 1.5 metres from a dining table and was separated from the living area by a partition. Inmates were allowed to take a shower once a week. Each inmate was given at least fifteen minutes to take a shower. The cells were disinfected. The Government, relying on the information provided by the director of the facility, further stated that the applicant was given food “in accordance with the established norms” three times a day. As follows from medical documents presented by the Government, since his placement in detention facility no. IZ-47/4 the applicant gained 21 kilograms, weighing 85 kilograms in December 1999 and 106 kilograms in May 2004. According to the Government, detainees including the applicant were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. In November 1999 the applicant requested medical assistance, complaining of pain in the right elbow. A preliminary diagnosis of osteoarthritis was made. However, further medical examinations and specific tests did not confirm that diagnosis. The Government further insisted that the applicant's allegations that he had contracted skin diseases were false. They supported their submissions with a copy of the applicant's medical record and various medical certificates.
36. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
37. Until 1 July 2002 criminal law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
38. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 89 of the old CCrP, Article 98 of the new CCrP).
39. The Russian Constitution of 12 December 1993 provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor, supported by appropriate evidence (Article 108 §§ 1, 3-6).
40. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).
41. Before 14 March 2001, remand in custody was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment, if they had previously defaulted, had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
42. The Codes make a distinction between two types of remand in custody: the first being “during investigation”, that is while a competent agency – the police or a prosecutor's office – is investigating the case, and the second being “before the court” (or “during judicial proceedings”), at the judicial stage. Although there is no difference in practice between them (the detainee is held in the same detention facility), the calculation of the time-limits is different.
43. After arrest the suspect is placed in custody “during investigation”. The maximum permitted period of detention “during investigation” is two months, but this can be extended for up to eighteen months in “exceptional circumstances”. Under the old CCrP, extensions were authorised by prosecutors of ascending hierarchical levels but they must now be authorised by judicial decisions, taken by courts of ascending levels (under the new CCrP). No extension of detention “during investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
44. The period of detention “during investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
45. Access to the materials in the file is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of the detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
46. Under the old CCrP, the trial court was entitled to refer the case back for “additional investigation” if it found procedural defects that could not be remedied at the trial. In such cases the defendant's detention was again classified as “during investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for additional investigation but the investigators had already used up all the time authorised for detention “during investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month, starting from the date on which he or she received the case. Subsequent extensions could only be granted if the detention “during investigation” had not exceeded eighteen months (Article 97).
47. From the date the prosecutor refers the case to the trial court the defendant's detention is classified as “before the court” (or “during judicial proceedings”).
48. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or at the request of a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with particularly serious criminal offences.
49. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court receives the file to the date on which judgment is given. The period of detention “during judicial proceedings” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
50. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances, if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1). An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 96 below) (Article 331 in fine).
51. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10).
52. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Article 222 § 5 and Article 230 of the old CCrP, Article 228 (3) and Article 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP).
53. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberation room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
54. An appeal against such a decision lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 96 below).
55. Under the old CCrP, within fourteen days after receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to refer the case back for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
56. The duration of the entire trial proceedings is not limited in time.
57. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this period could be extended by up to two months (Article 333). No further extensions were possible.
The new CCrP provides that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374).
58. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3
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VIOLATED_PARAGRAPHS: 5-3
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