ITEMID: 001-81904
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF COBZARU v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (six-month period, non-exhaustion of domestic remedies);Violation of Art. 3 both under its substantive and procedural aspects;Violation of Art. 13 on account of the lack of effective remedies in respect of the ill-treatment complained of;Violation of Art. 14+3 under its procedural aspect and Art. 13;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: David Thór Björgvinsson;Elisabet Fura
TEXT: 7. The applicant, Belmondo Cobzaru, is a Romanian national, born in 1973. He lives in the town of Mangalia (Constanţa).
8. On 4 July 1997 at around 7.30 p.m. the applicant and his girlfriend Steluţa M. arrived at the flat which they were sharing and which belonged to Steluţa. The applicant then left the flat for about 20 minutes to get some money, as he and Steluţa were planning to go out that evening. However, when he came back, he found the door locked. He asked his neighbours whether they had seen Steluţa, but was told that nobody had seen her. Fearing that she might have attempted to take her life, as she had already done in the past, the applicant forced open the door of the flat in the presence of his neighbour, Rita G. He found nobody there, so decided to go to the police to enquire about her fate. As he was leaving the apartment block, he met Steluţa's brother-in-law, Crinel M., accompanied by three men armed with knives, who attempted to attack him, but from whom he managed to escape.
9. On 4 July 1997 at around 8 p.m. Crinel M. called the police and lodged a complaint against the applicant. According to the complainant, the applicant had tried to break into Steluţa's flat, but had run away when Crinel M. appeared. The complaint was certified by the police officer Dumitru CA.
10. Dumitru CA sent a police patrol to conduct an on-site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat. Rita G., who was present during the investigation, stated that the applicant had broken into the flat in her presence, fearing that Steluţa might have committed suicide.
11. A short time after he escaped from Crinel M., that is, between 8 and 9 p.m., the applicant learned that the police were looking for him and went to the Mangalia City Police Department, accompanied by his cousin Venuşa L.
He reported to the police officer on duty, Dumitru CA., that some individuals had attempted to beat him up as he was leaving his flat, and that although he had managed to escape, he was still afraid that Crinel M. might beat him up. After he presented his identity card, he was told to wait. Other policemen were also present.
12. At around 10 p.m. police officers Gheorghe G., Curti D. and Ion M. came back from the on-site investigation they had carried out at Steluţa's flat. Gheorghe G. grabbed the applicant by his hair and pulled him upstairs to an office. Gheorghe G. and Curti D. punched him in the head until his nose started to bleed, and he was thrown to the ground and kicked. A newspaper was placed on the back of his neck and he was hit with a wooden stick. Four plainclothes officers observed the assault, but took no steps to prevent or halt it. The police told the applicant that the fact that his father was the local leader of a Roma association would not help him and forced him to sign a statement according to which he had been beaten up by Crinel M. and other individuals. Then he was told to leave and to come back the next day. The police kept his identity card.
13. The applicant left, but as he was feeling very weak, he stopped and sat in front of the police station. Gheorghe G. came out and told him to go home. Seeing that the applicant was in bad shape, Venuşa invited him back with her and offered him a coffee. The applicant showed her the bumps on his head and the other marks of the blows to his back.
14. Later that evening the applicant was admitted to the emergency ward of Mangalia Hospital with injuries diagnosed as craniocerebral trauma. He was transferred to Constanţa County Hospital where an X-ray was performed. He was informed that a further scan was necessary, but this was never performed.
15. On 7 July 1997 the applicant was discharged from hospital, allegedly at the request of someone whose name the hospital staff could not disclose.
16. On 8 July 1997 the applicant was examined by a forensic medical expert of the Forensic Institute of Constanţa, who noted in his report that the applicant had severe headaches and stomachaches, difficulty in walking, bruises around both eyes, on his fingers, on the back of his right hand, on his chest, on his right thigh and calf, and a haematoma on his head. The report concluded that the injuries had been caused by being hit “with painful and hard objects”. The doctor said that the applicant would need 14-15 days to recover.
17. On 8 July 1997 the applicant lodged a complaint with the head of the Mangalia Police Department against police officers Curti D. and Gheorghe G.. He alleged that after he had managed to escape from Crinel M. and his friends, he had gone home, but as he had found out that the police were looking for him, he had gone to the police station. There, Gheorghe G. and Curti D. had beaten him and made him sign a statement, after which they had told him to go home and come back the next day.
The complaint was registered on 9 July 1997 and forwarded to Major P.
18. On 10 or 11 July 1997 Major P. took written statements from the police officers involved in the applicant's questioning: Gheorghe G., Curti D. and Ion M. All police officers denied, in succinct terms, having beaten the applicant. None of them mentioned having seen any bruises on the applicant's face upon his arrival at the police station. The statements were dated 11 July, but Major P. certified them as having been made on 10 July.
19. In a statement certified by Major P. as having been made on 11 July 1997 Dumitru CA., a police officer on duty on 4 July 1997, explained that at 8.15 p.m. he had received a telephone call from Crinel M., who had told him that the applicant had forcibly entered Steluţa M.'s flat and had subsequently fled. The duty officer then sent to the flat a police patrol, composed of three police officers: Gheorghe G., Curti D. and Ion M. In the meantime the applicant arrived at the police station, accompanied by his cousin, Venuşa L. He told Dumitru CA. that he had forcibly entered the flat because he thought his girlfriend was inside. On his way out, on the staircase of the building, a number of individuals had approached him and tried to catch him, but he had run away and come to the police in order to avoid being beaten up by them. The police officer told the applicant and his cousin to wait in the waiting room. Police officer Gheorghe C. was there as well. At around 10 p.m. the police patrol returned from the flat and took the applicant to their office on the first floor for questioning. After approximately half an hour, the applicant was sent home and asked to come back the next morning. Dumitru CA. made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station.
20. By a letter dated 10 July 1997 Major P. forwarded the preliminary investigation file to the Military Prosecutor's Office in Constanţa. The case file contained the following documents:
(i) an undated statement by the applicant according to which, after he had left Steluţa's flat in the evening of 4 July 1997, he had met her relatives, who had beaten him up;
(ii) the report dated 4 July 1997, 8.15 p.m. drawn up by police officer Dumitru CA. stating that Crinel M. had complained to the police that the applicant had broken into Steluţa's flat (see paragraph 9 above);
(iii) a statement dated 4 July 1997 by Crinel M. from which it appeared that he had threatened the applicant in the evening of 4 July 1997 and had even thrown a stone at him, which had missed its target, but that he had definitely not beaten him up;
(iv) the on-site investigation dated 4 July 1997;
(v) a statement dated 4 July 1997 by Rita G., confirming the applicant's allegation, namely that at around 6 p.m., he had broken into Steluţa's flat in her presence, out of concern that she might have committed suicide, and that he had left when he had seen that Steluţa was not there; no mention was made of any physical assault against the applicant;
(vi) a police report dated 7 July 1997 issued by Gheorghe G., listing the clothes belonging to Steluţa allegedly torn up by the applicant on 28 June 1997;
(vii) a written notification issued on 7 July 1997 by the police requesting that the Forensic Institute examine Steluţa M., who “had been beaten up by Cobzaru Belmondo on 3 July 1997”;
(viii) Steluţa's statement dated 9 July 1997 from which it appeared that on 3 July the applicant had beaten her up while she was at his flat, and that on 4 July he had taken her to her flat and told her not to leave; as soon as he had gone, Steluţa had gone onto the roof of the building where she had remained for about two hours; from there she had seen the applicant come back and break into the flat; as he had found nobody, he had gone away. Steluţa further stated that as the applicant was leaving the building, he had met Crinel M., who “had beaten him up, asking him why he had broken into the flat”; no details were given as to the alleged beating; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour, but that when he saw Crinel M., he had run away;
(ix) a statement dated 9 July 1997 by Elena, Steluţa's mother, according to which the relationship between the applicant and Steluţa had already deteriorated; on 28 June 1997 the applicant had torn up some clothes belonging to Steluţa and on 4 July 1997, while Steluţa was on the roof of the building, the applicant had broken into the flat but had not stolen anything;
(x) the statements dated 10 or 11 July 1997 made by police officers Gheorghe G., Ion M., Curti D. and Dumitru CA. (see paragraphs 18 and 19 above).
21. On 17 July 1997 the applicant and his father, president of the Association of Roma in Mangalia, lodged a complaint with the Department for National Minorities and requested an investigation in respect of the police officers who had beaten the applicant. They submitted a medical certificate issued on 8 July 1998, a copy of a newspaper article describing the applicant's allegations of ill-treatment and the statements of Venuşa, who had accompanied the applicant to the police station on 4 July 1997 and who had seen him coming out of the police station in excruciating pain. The complaint was forwarded to the Military Prosecutor's Office in Constanţa on 23 July 1997.
22. On 21 July 1997 the applicant's father lodged a complaint with the Constanţa Military Prosecutor's Office.
23. On 28 July 1997 the applicant lodged a separate criminal complaint with the Bucharest Military Prosecutor's Office. He also claimed pecuniary and non-pecuniary damages. The complaint was registered the same day with the Prosecutor General's Office and forwarded on 14 August 1997 to the Constanţa Military Prosecutor's Office.
24. On 18 August 1997 the military prosecutor charged with the investigation interviewed the police officers and the applicant. Police officers Curti D. and Gheorghe G. maintained their statements made before the Mangalia police, and the applicant maintained his allegations of illtreatment. He complained, moreover, that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend's other relatives.
25. On 18 September 1997 the military prosecutor took a statement from Venuşa L. She stated that on 4 July 1997 she and a friend, Valentina T., had accompanied the applicant to the police station and that about 30 minutes later the applicant had come out and complained to them that he had been beaten by the police with a wooden stick. He had also shown them the bruises on his hand, back and fingers.
26. On 29 September 1997 the General Prosecutor's Office in Bucharest urged the Constanţa military prosecutor in charge of the investigation to complete the investigation and render a final decision by 12 December 1997.
27. On 6 October 1997 the Constanţa military prosecutor went to the Mangalia City Police Department, where he took statements from the following witnesses:
(i) witnesses Amet F. and Nuri M. stated that they had heard that an altercation had taken place between Crinel M. and the applicant; Amet F. further stated that he had seen Crinel M. chasing the applicant with a stone in his hand;
(ii) police officer Dumitru CI., who gave a written statement according to which he was at the police station on 4 July 1997 when the applicant arrived there at around 9.30 p.m., and saw that the applicant had bruises on his face when he entered the police station; he had explained to the duty police officer, Dumitru CA., that he had been hit by someone when breaking into the flat;
(iii) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station, at around 9.30 p.m., he had bruises on his face and declared that he had been hit by someone when breaking into the flat;
(iv) police officer Marius I., who had also participated in the on-site investigation at Steluţa's flat on 4 July 1997, stated that the applicant had arrived at the police station after the team of policemen had come back from the on-site investigation and that he had noticed that the applicant had obvious bruises on his face, which had been caused a short time beforehand;
(v) Crinel M. confirmed that on 4 July 1997 he had seen the applicant breaking into Steluţa's flat and that after making an unsuccessful attempt to catch the applicant, he had only managed to throw some stones at him, which had missed their target; he further confirmed that some neighbours had witnessed the incident, including Rita G.
The prosecutor did not put any questions to the police officers who had submitted written statements.
28. On 12 November 1997 the military prosecutor of Constanţa refused to open a criminal investigation in respect of the applicant's complaints against police officers Gheorghe G. and Curti D., on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as “antisocial elements prone to violence and theft”, in constant conflict with “fellow members of their ethnic group” and that it was in this context that in the evening of 4 July 1997 the applicant had broken into his girlfriend's flat and had destroyed many of her clothes. It further found that, according to various testimonies, including those of the police officers from the Mangalia Police Department, the applicant's girlfriend, her mother and Nuri M., the applicant had been hit by Crinel M. for breaking into Steluţa's flat. The prosecutor found that it was for “obvious reasons” that Crinel M., a “gypsy as well”, had denied having beaten the applicant. The prosecutor considered that the statement given by Venuşa L., from which it appeared that the applicant had come out of the police station with bruises on various parts of his body, could not be taken into consideration since she was also a gypsy – and, moreover, the applicant's cousin – and therefore her testimony was insincere and subjective.
29. By separate decisions of 26 February and 27 July 1998 the public prosecutor of the Mangalia County Court discontinued the proceedings instituted against the applicant by his girlfriend and her brother-in-law for physical assault and material damage.
30. On 4 March 1998 the applicant lodged an appeal against the decision of 12 November 1997 refusing to open a criminal investigation. The appeal was registered on 11 March 1998 by the military section of the Prosecutor General's Office. They sent it to the military prosecutor of the Bucharest Court of Appeal, who, in turn, sent it back to the Constanţa Chief Military Prosecutor.
31. On 4 May 1998 the Constanţa Chief Military Prosecutor dismissed the applicant's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant, “a 25-year-old gypsy” “well known for causing scandals and always getting into fights”. He found that, on the contrary, the applicant's injuries “might have been caused during the altercation which he had had with fellow members of his ethnic group. As a matter of fact, there were indications that the young man's father, who had been very insistent under the hypothetical title of a leader of an ethnic local association, had tried to use the complaint against the policemen to extinguish the other conflict”.
32. On 23 September 1998 the applicant lodged an appeal with the military section of the Prosecutor General's Office.
33. On 18 November 1998 the Chief Prosecutor of the military section of the Prosecutor General's Office informed him that his appeal had been dismissed and that the decision was final.
34. The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation, in particular by the applicant's girlfriend, who had seen the applicant being beaten up by Crinel M. from the roof of the building, and by three police officers, who had noted very recent marks of violence on the applicant's face when he arrived at the police station. The Government pointed out in this connection that the applicant's allegation that he had bruises on his face had been contradicted by the medical forensic examination, which did not reveal any such marks.
35. The Government also denied that Major P. had pre-dated the statements given to him on 10 July by the police officers questioned, and contended that the date of 11 July 1997 which the police officers wrote in their statements was obviously a mistake.
36. The relevant provisions of the Code of Criminal Procedure in force at the time when the facts occurred read as follows:
“Criminal proceedings cannot be instituted and, if instituted, cannot be continued if
(a) the act was not committed at all;
(...)
(c) the act was not committed by the defendant;
...”
“The aim of the civil action is to establish the civil liability of the accused and the liability for damages of any other person who can be held legally responsible.
The civil action can be brought together with the criminal action in a criminal trial, by way of joining the proceedings.”
“The person who has suffered civil damage can join the criminal proceedings...
He or she can do so either during the criminal investigation... or before the court...”
“The findings contained in a final judgment of the criminal court concerning the issue whether the act in question was committed and the identification of the perpetrator and establishment of his guilt are binding on the civil court when it examines the civil consequences of the criminal act.”
“(1) The victim who has not joined the criminal proceedings instituted before the court can lodge an action with a civil court ...
“(2) The civil proceedings will be suspended until the criminal case is decided.
...”
“Complaints about decisions and acts of the prosecutor ... shall be examined by the chief prosecutor at the Prosecutor's Office. If it is the chief prosecutor who took the decision ... the complaint shall be examined by the higher Prosecutor's Office...”
“In case of a conviction or an acquittal, or the termination of the criminal trial, the court shall deliver a judgment in which it also decides on the civil action.
Civil damages cannot be awarded if the accused is acquitted on the ground that the impugned act did not occur or was not committed by the accused.”
37. In its decision no. 486 of 2 December 1997, the Constitutional Court ruled that Article 278 of the Code of Criminal Procedure was constitutional only in so far as it did not deny anyone who was dissatisfied with a decision of the Prosecutor's Office direct access to a court in accordance with Article 21 of the Constitution.
38. Law no. 281 of 24 June 2003 amended the Code of Criminal Procedure. It introduced, inter alia, Article 278(1) regulating appeals to the courts against the prosecutor's decision. It prescribes the time-limit for lodging an appeal, the competent court and the procedure to be followed.
39. The relevant provisions of the Civil Code are worded as follows:
“Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
“Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.”
40. The Government submitted a number of cases in which the domestic courts had decided that the prosecutor's decision, based on Article 10 (b) of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of intention – as an element of the offence – did not prevent the civil courts from examining a civil claim arising out of the commission of the act by the person in question.
41. The Government submitted a single case, dating back to 1972, in which the Supreme Court had decided that the prosecutor's decision, based this time on Article 10 (a) and (c) of the Code of Criminal Procedure, not to open a criminal investigation having regard to the fact that the acts were not committed at all or were not committed by the defendant, should not prevent civil courts from examining a civil claim arising out of the commission of the same act by the person in question. However, the Supreme Court's decision dealt solely with the competence issue and did not specify whether there was a legal provision offering a chance of success for such an action.
42. The common view of the criminal-procedure specialists is that a civil court cannot examine a civil action filed against a person against whom the prosecutor has refused to open a criminal investigation on the grounds provided for in Article 10 (a) and (c) of the Code of Criminal Procedure that the acts were not committed at all or were not committed by the defendant (see Criminal Procedural Law – General Part, Gheorghe Nistoreanu and Others, p. 72, Bucharest 1994, and A Treaty on Criminal Procedural Law – General Part, Nicolae Volonciu, pp. 238-39, Bucharest 1996).
43. The common view of the civil-procedure specialists and of some criminal-procedure specialists is that the prosecutor's decision refusing to open a criminal investigation on the grounds mentioned in the previous paragraph, does not prevent a civil court from examining a civil action brought against the defendant and from making its own assessment on the facts which were committed and by whom. However, the view is that when making this assessment, civil courts have to rely on the findings of the prosecutor set out in the decision refusing to open a criminal investigation (see The Civil Action and the Criminal Trial, Anastasiu Crişu, RRD no. 4/1997, and Criminal Procedural Law, Ion Neagu, p. 209, Bucharest 1988).
44. In its Resolution No. 1123/1997 on the honouring of obligations and commitments by Romania, the Parliamentary Assembly of the Council of Europe urged the Romanian Government “to promote a campaign against racism, xenophobia and intolerance and take all appropriate measures for the social integration of the Roma population”.
45. The European Union's Commission noted in the 1998 Regular Report on Romania's progress towards Accession, that “discrimination against the large Roma minority in Romania remains widespread” and that in “general terms, the protection of minorities in Romania remains satisfactory, with the major exception of Roma”.
46. In its Regular Report on Romania's progress towards Accession of 8 November 2000, the European Commission stated, inter alia, that
“Roma remain subject to widespread discrimination througout Romanian society. However, the Government's commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report”.
47. In its publication “Roma - Justice Delayed, Justice Denied”, issued in 1998, Amnesty International reported cases of killings, beatings and other forms of ill-treatment of Roma and criticised the failure of law enforcement officers to protect Roma from racist violence in Romania.
48. US Department Yearly Reports on Romania from 2000 until 2006 reported routine police brutality - including beatings - and racial harassment of the Roma population, and noted that investigations of police abuses generally were lengthy, inconclusive and rarely resulted in prosecution or punishment.
49. In its second report on Romania adopted on 22 June 2001, the European Commission against Racism and Intolerance (ECRI) found that:
“Grave problems ... persist throughout the country as regards police attitudes and behaviour towards members of the Roma/Gypsy community. ECRI deplores in particular that cases of police violence against members of the Roma/Gypsy community, including the use of firearms, continue to occur, and have led to serious and sometimes lethal injuries...
Such abuses, although well-documented and reported to the authorities by the non-governmental organisations and individuals, do not appear to be thoroughly investigated or sanctioned: cases which are investigated are usually dismissed...”
50. On 24 June 2005 ECRI adopted a third report on Romania, in which it stated the following on the progress made by the Romanian authorities in improving the situation of Roma:
“...As regards the existence of a body responsible for looking into complaints made against police officers or law enforcement officials, the Romanian authorities have told ECRI that a procedure has been set in motion for that purpose within the Ministry of the Interior itself. [...] However, although the Romanian authorities have acknowledged that large numbers of police officers have been arrested for wrongful behaviour, they have provided no information on the victims. Furthermore, ECRI notes with concern that despite the existence of these procedures, the Romanian authorities have stated that no complaints have been recorded against police officers or law enforcement officials for discriminatory acts. It therefore wonders whether this does not reflect a lack of confidence among the general public in the authorities' capacity to punish the perpetrators of such acts.”
51. In a report on his first visit to Romania between 5 to 9 October 2002, the Council of Europe's Commissionner for Human Rights stated, inter alia, with regard to the Roma community in Romania:
“47. The Roma/Gypsy community suffers greatly from poverty, unemployment, lack of schooling, lack of access to health care and justice and discrimination in all its forms. Likewise, according to Roma/Gypsy organisations, one of this community's growing concerns is the "antiRoma/Gypsy phenomenon", which is gaining ground both in Romania and in Europe.”
52. In his follow-up report on Romania for the period 2002-2005, the Commissioner described as follows the general situation of the Roma community:
“54. According to the 2002 census, 535,250 persons were registered as Roma, representing 2.5% of the Romanian population. Nonetheless, the UNHCR estimated in 2004 that the Roma population actually numbered between 1.8 and 2.5 million persons.
[...]
56. From a general point of view, the Roma situation continues to be a cause for concern. The NGOs and the representatives of the Roma community continue to report violence on the part of the police and discrimination and state that a negative image of the Roma is spread by the media and a part of the political class.
[...]”.
VIOLATED_ARTICLES: 13
14
3


ITEMID: 001-115498
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF DE SOUZA RIBEIRO v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;Prescribed by law;Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life;Expulsion) (Brazil);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Erik Møse;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva
TEXT: 10. The applicant was born on 14 June 1988 and lives in Remire Montjoly in French Guiana, a French overseas “département and region” in South America.
11. He arrived in French Guiana from Brazil in 1992, at the age of four, and attended school there for a year before returning to Brazil in 1994.
12. In 1995, in possession of a tourist visa, the applicant returned to Cayenne in French Guiana, where he joined his parents, both of whom had permanent residence cards, and his two sisters and two brothers, one of whom had French nationality while the other three, having been born on French soil, were entitled to apply for it. His maternal grandparents remained in Brazil.
13. The applicant attended primary then secondary school in French Guiana from 1996 to 2004. As he had no proper residence papers and could not apply for them until he came of age (see paragraph 26 below), he had to leave school in 2004, at the age of 16.
14. On 25 May 2005 the applicant was arrested on suspicion of a drug offence. By an order of 17 May 2006, the Cayenne Youth Court placed him under court supervision and barred him from leaving French Guiana.
15. In a judgment of 25 October 2006, the Cayenne Youth Court sentenced the applicant to two months’ imprisonment, suspended, and two years’ probation, together with the obligation to report to the authorities and to undergo training, for unauthorised possession of cocaine while under 18 years of age. In execution of that judgment, the applicant began a vocational training course that was scheduled to last from 13 October 2006 to 30 March 2007, as part of the socio-professional guidance and integration scheme in French Guiana.
16. On 25 January 2007 the applicant and his mother were stopped at a road check. As the applicant was unable to show proof that his presence on French soil was legal, he was arrested.
17. The same day, at 10 a.m., an administrative removal order (arrêté préfectoral de reconduite à la frontière) and an administrative detention order were issued against him. The removal order stated:
“– Having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and in particular Articles 3 and 8,
...
– Whereas, according to report no. 56 of 25/01/2007, drawn up by the DDPAF [Département Border Police] of French Guiana, the above-mentioned person:
– is unable to prove that he entered French territory legally;
– has remained in French territory illegally;
– Whereas, in the circumstances of the present case, an administrative removal order must be issued against the alien concerned,
– Whereas that person has been informed of his right to submit observations in writing,
– Whereas, in the circumstances of the present case, there is no disproportionate interference with the person’s right to family life,
– Whereas the alien does not allege that he would be exposed to punishment or treatment contrary to the European Convention on Human Rights in the event of his return to his country of origin (or the country of habitual residence to which he is effectively entitled to return),
...
[The applicant’s] removal is hereby ordered.”
18. On 26 January 2007, at 3.11 p.m., the applicant sent two faxes to the Cayenne Administrative Court.
One contained an application for judicial review of the removal order, calling for its cancellation and the issue of a residence permit. In support of his application the applicant alleged in particular that the order was in breach of Article L. 511-4 (2) of the Code regulating the entry and residence of aliens and asylum-seekers (Code de l’entrée et du séjour des étrangers et du droit d’asile – CESEDA) (see paragraph 26 below), and also, relying on Article 8 of the Convention, that the authorities had manifestly misjudged the consequences of his removal for his personal and family life. He explained that he had entered French territory before the age of 13, that he had lived there on a habitual basis ever since, that both his parents had permanent residence cards, and that one of his brothers had acquired French citizenship and his other brother and sisters had been born on French soil. He further submitted that he was under an obligation to abide, for two years, by the conditions of his probation, failing which he would go to prison, and that, as required by the probation order, he had already begun a course in mechanics.
The other fax contained an urgent application for the court to suspend the enforcement of the removal order in view of the serious doubts about its lawfulness. In support of his application the applicant again relied on Article 8 of the Convention and repeated the arguments mentioned in the application for judicial review, which showed that most of his private and family life had been spent in French Guiana.
19. On 26 January 2007, at 4 p.m., the applicant was removed to Belem in Brazil.
20. On the same day, the urgent-applications judge at the Cayenne Administrative Court declared the urgent application for a suspension of the applicant’s removal devoid of purpose as he had already been deported.
The applicant immediately applied for legal aid to appeal to the Conseil d’Etat against that ruling. By a decision of 6 March 2007, the President of the Legal Aid Office of the Conseil d’Etat rejected his application for “lack of serious grounds likely to convince the court”.
21. On 6 February 2007 the applicant lodged an urgent application for protection of a fundamental freedom (requête en référé liberté) with the Cayenne Administrative Court. Referring to the Convention and to the Court’s case-law, he complained of a serious and clearly unlawful interference by the authorities with his right to lead a normal family life and his right to an effective remedy. He requested that the prefect of French Guiana be instructed to organise his return there within twenty-four hours of notification of the order, to enable him to defend himself effectively regarding the alleged violations of the Convention, and to be reunited with his family while the prefecture examined his right to stay in French Guiana.
By an order of 7 February 2007, the urgent-applications judge at the Cayenne Administrative Court rejected the application, considering in essence that the measure the applicant sought would to all intents and purposes amount to a permanent measure, whereas the urgent-applications judge could only order interim measures.
22. In August 2007 the applicant returned to French Guiana illegally.
23. On 4 October 2007 the Cayenne Administrative Court held a hearing in which it examined the applicant’s earlier application for judicial review (see paragraph 18 above). In a judgment delivered on 18 October 2007, it set aside the removal order. It noted in particular that the applicant claimed that he had returned to France in 1995, at the age of seven, and had resided there on a habitual basis thereafter, and that in support of his claims he had produced school certificates the authenticity of which the prefect did not dispute. It found it established that the applicant’s mother had a permanent residence card and that his father also lived in French Guiana. The court further noted that, according to a court supervision order produced by the applicant, he had been arrested in French Guiana in 2005 and prohibited from leaving the territory. It found that the applicant fulfilled the conditions provided for in Article L. 511-4 (2) of the CESEDA, which meant that the removal order should not have been issued against him.
In response to the applicant’s request to instruct the prefect of French Guiana to issue him with a residence permit within a month of the judgment being served, the court considered that its decision did not necessarily entail the issue of a temporary residence permit as it concerned only the setting aside of the removal order. The court did, however, set a three-month time-limit within which the prefect was to resolve the question of the applicant’s residence status.
24. On 16 June 2009 the prefecture of French Guiana issued the applicant with a “visitor’s” residence permit, which was valid for one year but did not allow him to work. An investigation revealed that the authorities had issued the “visitor’s” permit by mistake. On 23 September 2009 the applicant was issued with a new residence permit for “private and family life”. It was backdated to June 2009, valid for one year and allowed him to work.
That residence permit was not renewed upon its expiry on 15 June 2010 because of a problem with the documents required for its renewal. On 14 October 2010 the applicant was issued with a new residence permit valid from 16 June 2010 to 15 June 2011, subsequently renewed until 15 June 2012. The applicant now holds a renewable residence permit for “private and family life”.
26. The relevant provisions of the CESEDA as in force at the material time are as follows:
“Unless their presence represents a threat to public order, a temporary residence permit for ‘private and family life’ shall automatically be issued:
(1) to an alien, in the year following his eighteenth birthday, ... where at least one of the parents has a temporary or a full residence permit ...;
(2) to an alien, in the year following his eighteenth birthday, ... where he can prove by any means that he has been habitually resident in France, with at least one of his legitimate, natural or adoptive parents, since the age of 13, filiation having been established in the conditions laid down in Article L. 314-11; the condition provided for in Article L. 311-7 is not required; ...”
“The following persons shall not be required to leave French territory, or made the subject of a removal order, under the provisions of this chapter:
...;
(2) Aliens who can prove by any means that they have been habitually resident in France since at least the age of 13;
...”
27. These provisions are applicable throughout French territory, including France’s overseas territories.
28. At the material time expulsion measures were governed by Book V of the CESEDA, introduced by Law no. 2006-911 of 24 July 2006. They included the obligation to leave French territory (Article L. 511-1-I) and administrative removal (Article L. 511-1-II).
29. An alien who could not prove that he or she had entered France legally, or who had remained there illegally, and who could not be authorised to stay on any other grounds, could be ordered to leave, in particular by means of an administrative removal order (Articles L. 511-1 to L. 511-3 of the CESEDA).
30. If the alien was placed in administrative detention, he or she was informed of his or her rights and was entitled to legal assistance provided by an association in the detention centre. These associations were legal entities which had concluded agreements with the Ministry responsible for asylum and whose purpose was to inform the aliens concerned and help them to exercise their rights. In 2007, the only association present in French administrative detention centres was CIMADE. Since 2010 four other associations have also been present: the Ordre de Malte, the Association Service Social Familial Migrants (ASSFAM), France Terre d’Asile and Forum des Réfugiés.
31. Appeals against administrative removal orders could be lodged before the administrative court within forty-eight hours of their being served (Article L. 512-2 of the CESEDA). The appeal suspended the execution of the removal order but did not prevent the alien from being placed in administrative detention. The alien could not be deported before the time-limit for appealing had expired or – if the matter had been referred to the court – before the court had reached a decision (Article L. 512-3 of the CESEDA). The decision as to the country of destination was separate from the actual removal order. If that decision was challenged at the same time as the removal order, the appeal also had suspensive effect (Article L. 513-3 of the CESEDA).
33. The administrative court was required to reach a decision within seventy-two hours.
34. An appeal against the judgment of the administrative court could be lodged with the president of the administrative court of appeal having territorial jurisdiction, or a person delegated by him. This appeal had no suspensive effect (Article R. 776-19 of the Administrative Courts Code).
35. The consequences of the setting aside of an administrative removal order were covered by Article L. 512-4 of the CESEDA. First of all, it put a stop to any administrative detention or house arrest. The alien was then issued with a temporary residence permit while the administrative authority reviewed his or her case. Lastly, the judge responsible for removal matters did not merely refer the alien back to the administrative authorities; under Article L. 911-2 of the Administrative Courts Code, it also ordered the prefect to decide whether the person was entitled to a residence permit, “regardless of whether he or she had applied for one” and set a time-limit within which the situation of the alien concerned was to be reviewed (see, for example, Conseil d’Etat, 13 October 2006, application no. 275262, M. Abid A.).
36. However, a judgment of the administrative court setting aside a removal order did not oblige the prefect to issue a residence permit, as it did not concern the setting aside of a refusal to issue a residence permit (see the leading judgment of the Conseil d’Etat of 22 February 2002, application no. 224496, M. Dieng, followed by others). This applied even when the decision to set aside a removal order was based on substantive grounds, such as a violation of Article 8 of the Convention. According to the caselaw, a review of the person’s situation sufficed to fully execute a decision to set aside a removal order on substantive grounds. However, the principle of res judicata prevents the administrative authority from issuing a new removal order on the same grounds without showing any change in the circumstances.
37. These provisions (see paragraphs 28-36 above) were amended in part by Law no. 2011-672 of 16 June 2011 on immigration, integration and nationality, which harmonised the procedure for removing illegal aliens. The solutions previously adopted in the case-law concerning administrative removal measures are generally transposable to the present situation.
38. The relevant provisions of the CESEDA, in the version in force at the material time, read as follows:
“For the purposes of this part, the following provisions shall apply in French Guiana and Saint Martin:
(1) If the consular authority so requests, the removal order shall not be executed until one full day after it has been served;
(2) Without prejudice to the provisions of the preceding paragraph, an alien who has been ordered to leave French territory or against whom an administrative removal order has been issued and who refers the matter to the administrative court may, at the same time, apply for a stay of execution.
Consequently, the provisions of Articles L. 512-1 and L. 512-2 to L. 512-4 [whereby a removal order issued by the prefect may be challenged before the administrative court within forty-eight hours, with suspensive effect on the execution of the removal order] shall not apply in French Guiana or Saint Martin.”
39. Unlike in ordinary French law, therefore (see paragraph 31 above), an appeal to the administrative court does not stay the execution of a removal order. This exception, originally introduced for a limited period, was made permanent in French Guiana by the Homeland Security Act (Law no. 2003239 of 18 March 2003).
40. When asked to review the conformity of this measure with the French Constitution, as provided for in Article 61 of the Constitution, the Constitutional Council approved it. In its decision no. 2003-467 of 13 March 2003, when examining the conformity of the measure with Article 73 of the Constitution, the Constitutional Council noted:
“Sections 141 and 142 [of the Homeland Security Act] make the special provisions ... permanent in French Guiana and in the municipality of Saint Martin in Guadeloupe; under these provisions, refusal to issue a residence permit to certain aliens is not submitted for opinion to the residence-permit committee provided for in section 12 quater of the order of 2 November 1945, and an appeal against a removal order has no suspensive effect.
The applicant MPs argue that in making the special regime permanent sections 141 and 142 interfere with ‘constitutionally protected rights and guarantees such as the rights of the defence’ and go beyond the adjustments to the legislation of the overseas départements authorised by Article 73 of the Constitution.
In order to allow for the particular situation and the lasting difficulties encountered with regard to the international movement of people in the département of French Guiana and in the municipality of Saint Martin in the département of Guadeloupe, Parliament has maintained the special regime introduced by sections 12 quater and 40 of the order of 2 November 1945, mentioned above, without disrupting the balance, required by the Constitution, between the needs of public policy and the protection of the rights and freedoms guaranteed by the Constitution. The persons concerned continue to enjoy the right of appeal against administrative measures, and in particular the right to lodge urgent applications with the administrative court. Bearing in mind the special circumstances, which are directly related to the specific aim of strengthening the fight against illegal immigration, the legislation has not infringed the constitutional principle of equality. The adjustments in question are not contrary to Article 73 of the Constitution. ...”
41. Concerning the removal of aliens, French legislation provides for similar exceptions in another six overseas “départements and regions” and communities (Guadeloupe, Mayotte, Wallis and Futuna, Saint Barthélemy, Saint Martin, French Polynesia) and New Caledonia.
42. The legal provisions governing urgent applications for a stay of execution or for the protection of a fundamental freedom (référé suspension or référé liberté) are automatically applicable in French Guiana just as they are everywhere else in France. The relevant provisions of the Administrative Courts Code read as follows:
“When an application is made to set aside or vary an administrative decision, including a refusal, the urgent-applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts, as the evidence stands, as to the lawfulness of the decision.
Where an order is made staying execution, a ruling shall be given as soon as possible on the application to have the decision set aside or varied. The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied.”
“Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a public law entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within forty-eight hours.”
43. When examining a case concerning French Guiana, referred to it under Article L. 521-1 of the Administrative Courts Code, the Conseil d’Etat pointed out:
“The urgency of the matter justifies the stay of execution of an administrative measure when its execution would, in a sufficiently serious and immediate manner, undermine a public interest, the applicant’s situation or the interests he seeks to defend. It is for the urgent-applications judge to whom an application for a stay of execution of a decision not to issue a residence permit has been referred to assess the urgency and give reasons, taking into account the immediate impact of the refusal to issue the residence permit on the practical situation of the individual concerned. As Article L. 514-1 of the Code regulating the entry and residence of aliens and asylum-seekers stipulates that Article L. 512-1 of the same Code does not apply in French Guiana, an appeal by an alien against a refusal to issue a residence permit, combined with an obligation to leave French territory for a specified country of destination, does not stay the execution of the obligation to leave French territory.”
44. The Conseil d’Etat went on to consider that, in these circumstances,
“the prospect that an expulsion measure might be implemented at any time ... may be considered to characterise an urgent situation opening the possibility for the urgent-applications judge to stay the execution of the decision to refuse to issue a residence permit, combined with the obligation to leave French territory, in conformity with the provisions of Article L. 521-1 of the Administrative Courts Code”. (Conseil d’Etat, 9 November 2011, M. Takaram A., no. 346700, Recueil Lebon)
45. In response to a complaint lodged on 23 January 2008, the National Commission for Policing Ethics (Commission nationale de déontologie de la sécurité) examined the circumstances in which Mr C.D., a Brazilian national, had been stopped on 12 November 2007 by the mobile investigation squad of the Border Police of the département of French Guiana, taken into custody and detained pending his expulsion, and subsequently died six hours after being hospitalised in Cayenne.
46. In its opinion of 1 December 2008, the National Commission for Policing Ethics noted
“the existence within the Border Police in French Guiana, from 2006 to 30 January 2008 – when the two public highway patrol units of the mobile investigation squad were disbanded – of working methods and data-processing practices which, under cover of formally legitimate procedures, systematically violated all the principles of criminal procedure and in particular the most elementary rights of the people arrested, ... by intentionally falsifying the times mentioned in their reports, or using pre-printed forms whereby people who were taken into custody or detained waived their rights before they had even had a chance to voice their wishes on the matter.
Because of the systematic and long-standing nature of these violations of the law ... the Commission strongly recommends that ...
disciplinary measures be taken against all those ... who instigated or implemented them or allowed them to go on for such a long time ...
More generally, the Commission requests that all those who serve overseas be reminded that:
...
in the fight against illegal immigration the number of effective removals demanded by the central authorities must in no way affect the quality and lawfulness of the procedures;
and whatever the legal steps taken following the arrest – remand in custody, identity check, administrative detention – the people concerned have certain rights of which it is the duty of the police to inform them in practice, in a language they understand, to enable them to exercise their rights effectively and not just for the sake of appearances.”
47. On 4 May 2005 the Committee of Ministers adopted “Twenty Guidelines on forced return”. The relevant guidelines read as follows:
“Guideline 2. Adoption of the removal order
Removal orders shall only be issued in pursuance of a decision reached in accordance with the law.
1. A removal order shall only be issued where the authorities of the host State have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to:
a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment;
b. a real risk of being killed or subjected to inhuman or degrading treatment by non-State actors, if the authorities of the State of return, parties or organisations controlling the State or a substantial part of the territory of the State, including international organisations, are unable or unwilling to provide appropriate and effective protection; or
c. other situations which would, under international law or national legislation, justify the granting of international protection.
2. The removal order shall only be issued after the authorities of the host State, having considered all relevant information readily available to them, are satisfied that the possible interference with the returnee’s right to respect for family and/or private life is, in particular, proportionate and in pursuance of a legitimate aim.
...
Guideline 5. Remedy against the removal order
1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution.
2. The remedy shall offer the required procedural guarantees and present the following characteristics:
– the time-limits for exercising the remedy shall not be unreasonably short;
– the remedy shall be accessible, which implies in particular that, where the subject of the removal order does not have sufficient means to pay for necessary legal assistance, he/she should be given it free of charge, in accordance with the relevant national rules regarding legal aid;
– where the returnee claims that the removal will result in a violation of his or her human rights as set out in Guideline 2.1, the remedy shall provide rigorous scrutiny of such a claim.
3. The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1.”
48. The Commissioner for Human Rights issued a Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This Recommendation of 19 September 2001 included the following paragraph:
“11. It is essential that the right of judicial remedy within the meaning of Article 13 of the [European Convention on Human Rights] be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the [Convention]. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the [Convention] is alleged.”
49. The relevant parts of Articles 5, 12 and 13 of the Return Directive read as follows:
“When implementing this Directive, member States shall take due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.”

“1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.
...”
“1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12 § 1, before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12 § 1, including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.
...”
50. In accordance with Article 40 of the International Covenant on Civil and Political Rights, on 9 and 10 July 2008 the United Nations Human Rights Committee examined the fourth periodic report of France (UN Doc. CCPR/C/FRA/4). On 22 July 2008, it adopted its Concluding Observations (UN Doc. CCPR/C/FRA/CO/4) on that report, which included the following:
“... no recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor from French Guiana ...
The State Party should ensure that the return of foreign nationals, including asylum-seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State Party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect.” (The last paragraph appears in bold type in the original text.)

VIOLATED_ARTICLES: 13
8
VIOLATED_PARAGRAPHS: 8-1
8-2


ITEMID: 001-104289
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF NOWAK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Violation of P7-1;Non-pecuniary damage -award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1979 and lives in Przemyśl.
6. In 1998 the applicant was charged with assaulting a certain A.B. On an unknown date criminal proceedings against him were instituted.
7. In January 2004 the applicant left Poland for Ukraine. Before leaving, he informed the court that he could be contacted at a correspondence address in Przemyśl. He also telephoned the court several times to ask about progress on his case. He was informed that the proceedings had been stayed.
8. In March 2004 he started working in Lviv, Ukraine. In June 2004 his residence registration was extended until 20 May 2005 and at the same time the applicant was reprimanded by the administrative court for submitting his registration documents late.
9. Meanwhile, on 12 February 2004 Szczecin District Court in Poland remanded the applicant in custody for three months for failure to comply with a summons.
10. At around 11 a.m. on 20 January 2005 the applicant went to a police station in Lviv to report that his friend’s car had been stolen. The police checked his passport, verified his personal details and locked him up in a cell. When he asked for the reasons for his arrest he was told that he was an “international thief”. He was subsequently questioned by officers. The applicant submits that during the questioning the officers severely beat him and extinguished cigarettes and matches on his wrist and forearm. He further maintains that he was not given any food or drink for four days.
11. On 24 January 2005 a decision of the Ukrainian police of 21 January 2005 to expel him from the country was served on him. The decision stated that the applicant had arrived in Ukraine for private purposes in March 2004 and held a residence permit, valid until 20 May 2005. It further mentioned that on 20 January 2005 the Lviv police received a cable to the effect that the applicant was wanted by the Polish law-enforcement authorities on a charge of theft. On those grounds and in accordance with section 32 of Ukraine Law “on the Legal Status of Foreigners and Stateless Persons”, it was decided to expel the applicant from Ukraine with a three-year ban on re-entry.
12. The applicant was kept at the police station until the afternoon of 24 January 2005, when he was transported to the Polish border control post in Medyka, where he arrived at around 7 p.m. He was arrested there by the Polish police on the basis of the detention order of 12 February 2004 and a wanted notice issued by the Szczecin police station on 2 August 2004. He was then transferred to the Przemyśl Detention Centre in Poland.
13. At 8.20 p.m. on 24 January 2005 the applicant was examined by a doctor in an emergency centre for cigarette burns on his left hand and prescribed treatment.
14. On 31 January 2005 the applicant was examined by a prison doctor, who stated that the applicant had two 0.5 cm cigarette burns on his left hand, plus two similar marks on his left wrist and one on his forearm. He also had abrasions on his upper and lower lip and a broken front tooth.
15. On 9 March 2005 the applicant complained to the Przemyśl District Prosecutor that he had been ill-treated in police custody in Lviv on 20 January 2005. He submitted that he had been severely beaten by the Ukrainian police. He further claimed that they had stolen 5,000 euros (EUR), 200 United States dollars (USD) and 100 Ukrainian hryvnias (UAH) from him.
16. On 31 August 2005 the Przemyśl Regional Prosecutor’s Office sent the investigation materials relating to the applicant’s allegations to the Lviv Regional Prosecutor’s Office.
17. On 22 June 2005 the applicant lodged a claim for compensation with the Przemyśl Regional Court against the Ukrainian police. On 28 June 2005 the court rejected his statement of claim as inadmissible in law for lack of jurisdiction.
18. By letter of 5 June 2006, in reply to the applicant’s query, the Przemyśl Regional Prosecutor’s Office stated that they had received no information from the Lviv Prosecutor’s Office.
19. The applicant submitted that despite several phone calls and queries from him, the Lviv Prosecutor’s Office had not informed him of any progress with the investigation.
20. The relevant extracts from the Constitution provide as follows:
“Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party.
Foreigners and stateless persons may be granted asylum under the procedure established by law.”
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law.
In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody.
Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel.
Everyone who has been detained has the right to challenge his or her detention in court at any time.
Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.”
21. Chapter 31-a of the Code lays down the procedure for considering complaints by citizens about decisions, acts and omissions of State bodies, legal persons and officials in the sphere of administration. In particular, Article 248¹ from the said chapter of the Code provided, in so far as relevant:
“Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inaction on the part of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms”
22. Relevant provision of the Code provides:
“1. Non-pecuniary damage caused to an individual or legal person by illegal decisions, activity or inactivity, shall be reimbursed by the person who caused it, if their guilt can be established ... except in the cases established by the second part of this Article...
2. Non-pecuniary damage shall be indemnified irrespective of guilt:
...
2) if damage to a physical person has resulted from his or her illegal imprisonment ...”
23. The relevant provisions of the Code read as follows:
Article 2
Role of the administrative justice system
“1. The role of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ...
2. Any decisions, actions or inaction on the part of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”
Article 17
Competence of the administrative courts in deciding administrative cases
“1. The competence of the administrative courts shall cover:
...
3) disputes between public authorities ...
4) disputes following an application by a public authority in situations set out in the law...
2. The competence of the administrative courts shall not cover public law cases:
...
2. that shall be decided under the criminal justice procedure ...”
24. Article 4 of the Code provides that the court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures prescribed by law to ascertain whether a crime has been committed and identify and punish the offenders.
25. The relevant provisions of the Prosecution Service Act provided:
“The Public Prosecutor’s Office of Ukraine is an integral system, which according to the Constitution of Ukraine and the present Law is entrusted with the following functions:
... (4) supervision over the observance of laws in the course of enforcement of judgments in criminal matters, as well as in the course of application of other compulsory measures connected with restriction of personal liberty of citizens.”
“The public prosecutor examines applications and complaints of violation of rights of individuals and legal entities, except for those complaints which are within the competence of the court.
...
A decision taken by the public prosecutor can be appealed against before a higher public prosecutor or a court.”
“The matters subject to the public prosecutor’s supervision are ... the compliance with the regulations ... on conditions of detention or those for serving prison sentences by persons in such institutions and on the protection of their rights ...
A public prosecutor exercising such supervision shall be empowered:
(1) to visit places of detention, pre-trial detention facilities, institutions in which convicted persons serve their sentences, at any time ...
(2) ... to request the officials to give explanations as regards violations which have occurred...”
26. Section 32 of the Act provides:
“Foreigners and stateless persons who have committed a crime or misdemeanour, after serving their sentence or after the administrative sanction imposed on them has been enforced, may be expelled from Ukraine. A decision on expulsion from Ukraine after serving their sentence or the enforcement of the administrative sanction shall be taken by the police department at the person’s place of temporary residence with notification within twenty-four hours by the prosecutor of the reasons for that decision. The decision of the police department on expulsion of foreigners and stateless persons from Ukraine may be accompanied by a prohibition on further entry into Ukraine for up to five years. The time-limit for a ban on further entry into Ukraine is calculated from the date of this decision. The procedure for enforcement of the decision on the ban on further entry into Ukraine shall be set forth in the legislation of Ukraine.
Apart from the situations specified in part one of this article, foreigners and stateless persons may be expelled from Ukraine by a decision of the police, State border guard (relating to persons detained within controlled border areas, during or after an illegal crossing of the border of Ukraine) or the Security Service of Ukraine and further notification within twenty-four hours by the prosecutor of the reasons for that decision, if the actions of foreigners and stateless persons have grossly violated the law on the status of foreigners and stateless persons, or are contrary to the interests of Ukraine’s security or public order, or when necessary for public health considerations or for protection of rights and lawful interests of citizens of Ukraine.
Foreigners and stateless persons must leave the territory of Ukraine within the period stated in the decision on expulsion. If the decision on expulsion of a foreigner or stateless person from Ukraine is taken, the visa in his passport shall immediately be cancelled and the person’s residence permits withdrawn.
Foreigners and stateless persons may be given up to thirty days to leave Ukraine after the adoption of the relevant decision.
With the approval of the prosecutor, foreigners and stateless persons may be arrested and subjected to administrative forced expulsion by the police or the State border guard, if such persons fail to leave after the decision on expulsion, or if there are reasonable grounds to believe that they will not leave.
Foreigners and stateless persons detained for being in Ukraine illegally (in violation of a ban on entry to Ukraine, in the absence of grounds set forth in laws and international treaties of Ukraine on presence in Ukraine (transit through its territory), including stays with a visa (permit) or passport which belongs to another person, which is counterfeit or damaged or which does not meet the established standards) shall be placed in a temporary detention centre for foreigners and stateless persons who are in Ukraine illegally, with internal regulations for the period required for the preparation of their forced deportation from Ukraine, but for no longer than six months.
A standard regulation on temporary detention centre for foreigners and stateless persons who are illegally staying in Ukraine shall be approved by the Cabinet of Ministers of Ukraine.
The decision of the police, the State border guard or the Security Service of Ukraine on deportation of a foreigner or stateless person from Ukraine may be appealed against to the court. The appeal suspends the decision on expulsion, unless immediate expulsion is required in the interests of Ukraine’s security or protection of public order.
Expulsion of foreigners and stateless persons who are detained within controlled border areas during or after illegally crossing the border of Ukraine shall be carried out by the State border guard and in other cases by the police. Monitoring of correct and timely execution of decisions on expulsion shall be performed by the body that adopted the decision.
Foreigners and stateless persons that are subject to deportation shall reimburse the costs of their deportation under the procedure established by law. If these foreigners and stateless persons have no means to cover costs associated with their expulsion from Ukraine, expulsion shall be carried out at the State’s expense.
Individuals or entities who have invited or received these foreigners and stateless persons, arranged for their illegal entry, residence or employment or assisted them to remain in Ukraine after the expiry of their term of stay, shall reimburse, under the procedure established by law, the costs incurred by the State when deporting the said foreigners and stateless persons.”
27. Article 3 of the Agreement provides:
“Materials for prosecution shall be submitted by the regional prosecutor’s offices [of Ukraine] and Voivodeship prosecutor’s offices [of the Republic of Poland] to address of those Voivodeship (regional) prosecutor’s offices of the requested State, whose jurisdiction covers the territory in which the suspects or accused persons reside permanently.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-2
5-4


ITEMID: 001-97079
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MALKOV v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Remainder inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1979. He is currently serving a prison sentence.
5. On 6 August 1998 a criminal investigation was started in respect of the murder of a taxi driver whose body had been found a week earlier in a forest. His car had been set on fire.
6. On 28 January 1999 the criminal investigation was suspended as the identity of the perpetrator could not be established.
7. On 10 August 1999 the investigation was resumed, K. being a suspect. On the following day the applicant was interviewed as a witness. He said that he had not used a taxi to get from Tallinn to Sillamäe in May 1998, had not sold a mobile phone to F. and had heard nothing about the murder of a taxi driver from Tallinn. The interview lasted for ten minutes.
8. On 16 August 1999 the investigation was again suspended.
9. On 19 April 2001 a resumption of the investigation was ordered.
10. Also on 19 April 2001 the chairperson of the Tallinn Administrative Court (halduskohus) authorised the installation of covert listening devices in T.’s home and covert audio recording of conversations. The authorisation was for a ten-day period and remained valid until 18 May 2001. According to a report concerning the surveillance activity, on 11 May 2001 the applicant and T. talked about the murder of the taxi driver.
11. On 30 July 2001 a police investigator drew up a decision by which the offence, initially qualified as manslaughter, was requalified as murder. K. and the applicant were identified as suspects. The investigator ordered that they should be taken to the police station the following day.
12. On 1 August 2001 the investigator requested that the applicant and K. be detained in case they attempted to leave the country.
13. On 17 August 2001 the police attempted to arrest the applicant, who was not at home. His neighbour had not seen him for a week.
14. On the same date the investigator drew up charges against the applicant. He was charged, together with K., with murder, aggravated robbery and destruction of property. According to the charges the offences had been committed on the night of 17 May 1998. As the applicant was evading the criminal investigation, he was declared a fugitive and the investigation was suspended.
15. Also on 17 August 2001 the Ida-Viru County Court (maakohus) authorised, at the investigator’s request, the applicant’s detention for ten days after his arrest.
16. On 5 October 2001 a criminal investigation was started in respect of T., who was charged with failure to report the murder of the taxi driver.
17. On 1 December 2003 the applicant was arrested.
18. On 2 December 2003 he was presented with the charges drawn up on 17 August 2001.
19. On 4 December 2003 the Narva City Court (linnakohus) authorised his detention for one month. Subsequently, the court regularly extended his detention (on 31 December 2003 and on 29 January, 26 March, 27 May, 23 July and 26 August 2004).
20. In the meantime, on 23 July 2004, the criminal case concerning the failure by T. to report a crime was joined to the case in which the applicant and K. were defendants.
21. On 21 September 2004 the bill of indictment was drawn up and the criminal case file was sent to the Narva City Court.
22. By a decision of 1 February 2005 the City Court committed the applicant for trial together with K. and T. The applicant and K. were charged with murder and destruction of property; T. was charged with failure to report a crime. The City Court endorsed the preventive measures previously applied in respect of the defendants: it extended the applicant’s detention and K.’s prohibition on leaving his place of residence. No preventive measure was applied in respect of T. as he was serving a ten-year prison sentence at the time.
23. Hearings at the Narva City Court and the Viru County Court, which was dealing with the case after a reorganisation of the court system, were scheduled for five days both in 2005 and 2006. Of these ten hearing days, scheduled hearings were adjourned on five occasions, mainly because of the illness of a judge or a lay judge and because of the failure of witnesses to appear in court. In the spring of 2006 the judge hearing the case died. The court proceedings were recommenced with another judge. On 18 October 2006 the presiding judge withdrew from hearing the case as he had ordered the applicant’s detention at an earlier stage of the proceedings. On the same date another judge withdrew for the same reason. The case was then assigned to the fourth judge, who conducted the proceedings until the end.
24. In 2007 and 2008 court hearings were scheduled for eleven days. In fact, hearings took place on five days and were adjourned on six occasions for reasons such as the illness of the judge, the prosecutor and a lawyer and, on three occasions, the failure of witnesses to appear.
25. On 29 April 2005, 31 May 2006, 16 August 2007, 27 November 2007 and 6 February 2008 the City Court and County Court rejected the applicant’s request to release him and to apply a signed undertaking not to leave his place of residence as the preventive measure instead of detention. The courts noted that the applicant was charged with a serious offence; he had been in hiding for a long time (from 17 August 2001 to 1 December 2003), during which time he had been well aware that the police were looking for him. However, he had gone to Russia and had returned, crossing the border illegally, only six months later, because his Russian visa had expired. The courts also found that the applicant had no close ties in Estonia as he was a stateless person, was not married and had no family. It was considered that in view of the severe punishment the applicant was facing according to the charges, there were grounds to believe that he could again abscond. The courts also considered that it was not excluded that if at liberty the applicant could exert pressure on the victim and witnesses.
26. On 4 September 2008 the Viru County Court delivered its judgment. The applicant, together with K., was convicted of murder and destruction of property. He was sentenced to thirteen years’ and three years’ imprisonment respectively; the composite sentence for the two offences was set at thirteen years. The time spent in detention was counted towards the sentence already served. The preventive measure applied in respect of the applicant was not amended – he was to remain in custody until the judgment became final.
27. On the same date the County Court decided to terminate the criminal proceedings against T. due to inappropriateness of the penalty, as he had been convicted in another criminal case and a composite sentence of ten years’ imprisonment had been imposed on him.
28. The applicant appealed against the County Court’s judgment, referring, inter alia, to a violation of the reasonable time requirement enshrined in Article 6 § 1 of the Convention. He also pointed out that he had been in detention for almost four years and ten months.
29. By a judgment of 27 January 2009 the Tartu Court of Appeal (ringkonnakohus) quashed the County Court’s judgment in so far as the punishment was concerned. The Court of Appeal referred to Article 6 § 1 of the Convention and noted that what was reasonable for the lengthconsidered that failure to conduct criminal proceedings within a reasonable time did not necessarily require the person’s acquittal; depending on the circumstances it could also be proportionate to terminate criminal proceedings for reasons of inappropriateness or to take unreasonable length of proceedings into account in the imposition of a punishment. The Court of Appeal found that the criminal proceedings in the present case had lasted for ten years and six months. It considered it “not unimportant” that the applicant had been kept in detention for almost five years and two months. It held that the proceedings had not been conducted within a reasonable time. Considering the above, the Court of Appeal found it appropriate to reduce the applicant’s sentence. He was sentenced to eight years’ imprisonment for murder and one year’s imprisonment for destruction of property and the composite sentence was set at eight years.
30. On 22 April 2009 the Supreme Court (Riigikohus) declined to hear the applicant’s appeal.
31. Article 385 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides that a ruling whereby a court reviews the well-foundedness of pre-trial detention is not subject to a separate procedural appeal. According to Article 383 § 2 of the Code, such a ruling can be challenged in an appeal against the judgment in the main proceedings.
32. In a decision of 30 December 2008 (case no. 3-4-1-12-08), the Constitutional Review Chamber of the Supreme Court dealt with a complaint concerning length of criminal proceedings. It rejected the complaint, considering that the complainant could have had recourse to another effective remedy. The Supreme Court held:
“21. The Chamber is of the opinion that [the complainant’s] right to proceedings within a reasonable time has been violated and that [the complainant] is entitled to submit a relevant complaint as part of the proceedings pending before the Tartu County Court. The court is under the obligation to adjudicate such a complaint at any stage of proceedings, not only when rendering a judgment. If necessary, the court must proceed from the Convention and the practice of application thereof, which – pursuant to Article 2 § 2 of the Code of Criminal Procedure – constitute a source of criminal procedural law. The Convention is an international agreement ratified by the Riigikogu, which – proceeding from Article 123 § 2 of the Constitution – has priority over Estonian laws or other legislation (see the Supreme Court en banc judgment of 6 January 2004 in case no. 3-1-3-13-03 – RT III 2004, 4, 36, § 31).
22. According to the case-law of the European Court of Human Rights ’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, for example, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999II). The Supreme Court, too, has pointed out that upon assessing whether a reasonable time has been exceeded a court must take into account the gravity of the criminal offence, the complexity and volume of the criminal case, and other concrete circumstances, including the course of proceedings (see the Criminal Chamber of the Supreme Court judgment of 27 February 2004 in case no. 3-1-1-3-04 – RT III 2004, 8, 86, § 19).
23. If the court comes to the conclusion that [the complainant’s] right to proceedings within a reasonable time has been violated, the court can, in the light of all the circumstances and on the basis of Article 6 § 1 of the Convention, terminate criminal proceedings due to inappropriateness, render a judgment of acquittal or take the fact that reasonable time was exceeded into account upon imposition of punishment.
As regards the referred possibilities the Criminal Chamber of the Supreme Court has pointed out that the expiry of reasonable length of criminal proceedings need not necessarily and always bring about the acquittal of a person. Depending on the circumstances a proportional result of the expiry of reasonable time of criminal proceedings may be, for example, the termination of criminal proceedings for reasons of inappropriateness or taking the referred fact into account upon imposition of punishment (see the Criminal Chamber of the Supreme Court judgment of 27 February 2004 in case no. 3-1-1-3-04 – RT III 2004, 8, 86, § 22). With regard to taking into account the unreasonable length of proceedings upon imposition of punishments the Criminal Chamber has pointed out that on the basis of Article 6 § 1 of the Convention and pursuant to Article 61 of the Penal Code the courts have the right to impose a less onerous punishment than the minimum term or rate provided by law (see the Criminal Chamber of the Supreme Court judgment of 7 November 2008 in case no. 3112808 – not yet published in RT III, § 17).
...
25. In the examination of [the complainant’s] request for compensation for the damage caused by the violation of fundamental rights, the Chamber agrees with the opinion expressed in the written opinions of the participants in the proceeding that [the complainant] can demand compensation for damage in an administrative court on the bases and pursuant to the procedure established in the State Liability Act.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-4597
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: ANDRETTA v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1937, and currently residing in Arienzo (Caserta).
She is represented before the Court by Mr Antonio Nardone and Mr Togo Verrilli, two lawyers practising in Benevento.
The facts of the case, as submitted by the parties, may be summarised as follows.
The order, which was served on the applicant on 12 September 1997, indicated that no appeal lay against it under domestic law.
Article 19 § 1 of Presidential Decree no. 546 of 31 December 1992 indicates the acts which are subject to appeal before the competent Fiscal Board (“commissione tributaria provinciale”). It mentions, inter alia, “the role” (“il ruolo”). The Fiscal Board’s decision may be appealed first before the competent Fiscal Appeals Board (“commissione tributaria regionale”) and then before the Court of Cassation (Articles 52 § 1 and 62 § 1 of Presidential Decree no. 546).