ITEMID: 001-98315
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ANNEN (II) v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Klaus Günter Annen, is a German national who was born in 1951 and lives in Weinheim. He was represented before the Court by Mr L. Lennartz, a lawyer practising in Euskirchen.
On 16 October 2001 the applicant distributed pamphlets to passers-by near gynaecologist Dr K.’s medical practice. The front page contained inter alia the following text:
“Stop unlawful abortions in Dr. K.’s medical practice” („Stoppt rechtswidrige Abtreibungen in der Praxis Dr. K.“)
indicating the physician’s full name and address. It further contained the following sentences:
“Did you know that unlawful abortions are performed in H. in Dr. K.’s practice?” („Wussten Sie schon, dass in H. in der Praxis von Dr. K. rechtswidrige Abtreibungen durchgeführt werden?”)
The verso contained the sentence:
“Please support our struggle against the unpunished killing of unborn children” (“Bitte, helfen sie uns im Kampf gegen die straflose Tötung ungeborener Kinder.”)
Dr K., who performed abortions in accordance with the legal conditions laid down in Article 218a §§ 1 and 2 of the Criminal Code (see relevant domestic law, below), raised an action for an injunction. He alleged that the applicant’s statement was incorrect, as he performed abortions exclusively within the legal framework. On 19 October 2001 the Heilbronn Regional Court (Landgericht), by way of an interim injunction, ordered the applicant to desist from further asserting or disseminating the allegation that Dr. K. performed unlawful abortions (rechtswidrige Abtreibungen). This interim injunction was confirmed by the Stuttgart Court of Appeal (Oberlandesgericht) on 8 May 2002.
The applicant alleged that the impugned statement was correct. Relying on the Federal Constitutional Court’s case-law, he pointed out that abortions which were performed under Article 218a § 1 following obligatory counselling, but without medical indication as required by Article 218a § 2, where unjustified and thus unlawful. He further asserted that his statement was covered by his right to freedom of expression.
On 12 March 2003 the Heilbronn Regional Court confirmed the injunction in the main proceedings. Basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, that court considered that the applicant’s statement, seen from the point of view of an unbiased and knowledgeable public, contained the allegation that the abortions were performed outside the legal conditions of Article 218a of the Criminal Code and were thus subject to criminal prosecution. It could not be expected from the average reader to draw the distinction between the act of abortion which was justified under Article 218a § 2 of the Criminal Code and the act of abortion which was merely exempt from prosecution under Article 218a § 1 of the Criminal Code. Seen from a layman’s point of view, only those acts of abortions were considered “unlawful” which did not comply with either of the prerequisites laid down in Article 218a of the Criminal Code.
The applicant could not rely on the allegation that the impugned statement was true. Having regard to the fact that the pamphlet was not addressed to lawyers, but to laypersons, it was not decisive whether the statement was true from a strictly judicial point of view.
The Regional Court did not find it necessary to establish whether the impugned statement had to be regarded as a statement of facts or whether it also contained a value judgment. In any event, the physician’s interest in the protection of his personality rights prevailed over the applicant’s right to freedom of expression. The Regional Court conceded that the impugned statement could be regarded as a contribution to the debate on questions of public interest which merited special protection under the right to freedom of expression. However, in the present case the infringement on the physician’s personality rights was so severe that it prevailed over the applicant’s right to freedom of expression. The statement did not only concern his professional, but also his personal reputation. On the other hand, the applicant could have easily clarified that the abortions performed by the physician were not subject to criminal liability. The Regional Court finally noted that the physician, who had not actively participated in the public debate on abortion, had not given him any reason to attack him as a private person.
On 18 September 2002 the Stuttgart Court of Appeal rejected the applicant’s appeal. That court confirmed the Regional Court’s finding that the applicant’s statement, seen from the point of view of an “average reader”, contained the accusation that the doctor performed abortions without respecting the legal provisions. Further to the Regional Court’s findings, the Court of Appeal considered that the applicant’s statements were suited adversely to affect the physician’s professional activities by deterring potential clients.
On 1 April 2003 the Federal Court of Justice (Bundesgerichtshof) refused to allow the applicant’s appeal. That court did not consider it necessary to establish whether the interpretation given to the applicant’s statement by the lower courts had been correct. In any event, the applicant had singled out the physician, who had been performing his professional activities within the legal framework, and had produced a “pillory effect” (“Prangerwirkung”). The entailing violation of the physician’s personality rights was so severe that the applicant’s right to freedom of expression had to cede.
On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint for adjudication. That court considered that the interpretation attributed to the applicant’s statement by the District Court and the Court of Appeal was not necessarily the only possible one. It noted that the Karlsruhe Court of Appeal had considered in a similar case that the impugned statement did not contain the allegation that the abortions performed were subject to criminal liability. Even accepting the statement’s ambiguity, the Constitutional Court considered that the interpretation given by the domestic courts was to be taken into account. The relevant passages read as follows:
“In contrast to the examination of penal or civil law sanctions for a statement which has already been made, when a claim for an injunction to desist from uttering an ambiguous statement in the future is examined, the court has to chose among several possible interpretations the one which violates [the plaintiff’s] personality rights or, if this is the case with several interpretations, the one which more seriously violates personality rights. In the present case, this is the interpretation given by the civil courts, and not the interpretation favoured by the complainant with reference to the Karlsruhe Court of Appeal’s decision, according to which the statement referred to the distinction between criminal justification and exemption from criminal liability of different kinds of abortions under Article 218a of the Criminal Code.
The complainant’s right to freedom of expression is not violated by the request to clarify the content of his statement with regard to further dissemination in order to avoid a conviction to desist from uttering the statement and in the interest of the plaintiff’s personality rights. There are no indications that the applicant could not reasonably be expected to clarify that the abortions performed in Dr K.’s practice are not subject to criminal liability by using unambiguous words also on the pamphlet’s front page.”
The Federal Constitutional Court further confirmed the civil court’s finding that the allegation that the physician performed unlawful and thus punishable abortions was untrue, as the physician undisputedly performed abortions within the legal framework. The court further considered that the civil courts had correctly weighed the conflicting interests, that is to say the applicant’s right to freedom of expression and the physician’s personality rights. With regard to the scope of the applicant’s right to freedom of expression, the Constitutional Court found as follows:
“The impugned decisions cannot be understood as preventing the complainant from publicly militating against the exemption from criminal liability and against the performance of abortions and from employing polemic or exaggerated terms. The present case concerned statements which were directed against one single person and infringed that person’s personality rights. It follows that that the physician’s interests, insofar as they were in conflict with the right to freedom of expression, had to be taken into account.”
The Federal Constitutional Court further considered that there was no objection from a constitutional point of view against taking into account a so-called “pillory effect” derived from singling out one person, as long as the courts adequately weighed the conflicting interests. The Federal Constitutional Court observed that the plaintiff had been identified by his full name and address as a person performing unlawful acts. This constituted a serious violation of his personality rights. Furthermore, the plaintiff had not given the applicant any reason to single him out.
This decision was served on the applicant’s counsel on 22 June 2006.
On 24 April 2002 the applicant walked up and down the street in front of Dr. K.’s medical practice, carrying a poster with the text “abortion kills unborn children” (“Abtreibung tötet ungeborene Kinder”) on the front and “You shall not kill. Also applies to doctors” (“Du sollst nicht töten. Gilt auch für Ärzte”) on the back. He also addressed passers-by and the physician’s presumed patients.
Dr. K. lodged a request for an injunction with the Heilbronn Regional Court, alleging that the applicant’s behaviour unsettled and deterred his patients and thus seriously disturbed the proper functioning of his medical practice.
On 10 April 2003 the Heilbronn Regional Court, basing its decision on Article 823 in conjunction with Article 1004 of the Civil Code, ordered the applicant to desist from addressing patients and passers-by in a specified area in front of Dr. K.’s medical practice and from pointing out that Dr. K. performed abortions.
The Regional Court considered that the applicant’s behaviours disturbed the physician in the performance of his professional activities, which were protected as part of his personality rights. Insofar as the applicant relied on his right to freedom of expression, a fair balance had to be struck between the conflicting interests.
The Regional Court observed that the applicant, by addressing presumed patients in the area of the physician’s practice and by drawing public attention to the latter’s activities, considerably disturbed the very sensitive relationship between the physician and his patients. This could not only lead to economical disadvantages, but also damaged the physician’s reputation.
The Regional Court further considered that the applicant’s right to freedom of expression entitled him publicly to criticise physicians performing abortions. However, the means the applicant employed in order to express his criticism in the direct vicinity of this specific physician’s premises exceeded the acceptable limit. The financial losses the physician had to envisage as a result of the applicant’s behaviour were disproportionate.
On 17 September 2003 the Stuttgart Court of Appeal rejected the applicant’s appeal. The Court of Appeal confirmed that the applicant’s behaviour was likely to deter the physician’s current and potential future patients. While conceding that the applicant had the right publicly to criticise the performance of abortions, the means employed by him had been disproportionate. The Court of Appeal further considered that Dr. K., who had not called for any public attention, had been singled out by the applicant in order to exemplify a general problem, thus producing a “pillory effect”. The Court of Appeal further considered that the applicant had acted with the intention to disturb the physician’s relationship to his patients and to cause financial damage.
On 30 March 2004 the Federal Court of Justice granted the applicant leave to lodge an appeal on points of law.
On 7 December 2004 the Federal Court of Justice dismissed the applicant’s appeal on points of law. That court confirmed the Court of Appeal’s finding that, under the circumstances of this particular case, the physician’s personality rights prevailed over the applicant’s right to freedom of expression. Further to the Court of Appeal’s considerations, the Federal Court of Justice pointed out that the physician’s activities were lawful and enjoyed protection under the constitutional right to freedom to exercise his profession. In this context, the court emphasised the important role which the legislator had attributed to the gynaecologists both in the protection of the unborn life and in the protection of the health of the women concerned. It was essential that the relationship of trust between the physician and his patients was not disturbed by the intrusion of external parties. The applicant’s actions adversely affected the plaintiff’s activities in an unacceptable way.
On 24 May 2006 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s constitutional complaint for adjudication as being ill-founded, as it did not find fault with the Federal Court of Justice’s decision. This decision was served on the applicant’s counsel on 22 June 2006.
The relevant provisions of the criminal code read as follows:
Section 218
Abortion
“(1) Whosoever terminates a pregnancy shall be liable to imprisonment of not more than three years or a fine. Acts the effects of which occur before the conclusion of the nidation shall not be deemed to be an abortion within the meaning of this law.
(2) In especially serious cases the penalty shall be imprisonment from six months to five years. An especially serious case typically occurs if the offender acts against the will of the pregnant woman; or through gross negligence causes a risk of death or serious injury to the pregnant woman.
(3) If the act is committed by the pregnant woman the penalty shall be imprisonment of not more than one year or a fine.
(4) The attempt shall be punishable. The pregnant woman shall not be liable for attempt.”
Section 218a
Exception to liability for abortion
“(1) The offence under section 218 shall not be deemed fulfilled if
the pregnant woman requests the termination of the pregnancy and demonstrates to the physician by certificate pursuant to section 219 (2) 2nd sentence that she obtained counselling at least three days before the operation; the termination of the pregnancy is performed by a physician; and not more than twelve weeks have elapsed since conception.
(2) The termination of pregnancy performed by a physician with the consent of the pregnant woman shall not be unlawful if, considering the present and future living conditions of the pregnant woman, the termination of the pregnancy is medically necessary to avert a danger to the life or the danger of grave injury to the physical or mental health of the pregnant woman and if the danger cannot reasonably be averted in another way from her point of view.”
The Federal Constitutional Court, in its leading judgment (BVerfGE 88, 203), accepted in the end abortions being performed by physicians after the pregnant woman having obtained counsel by a third person, and developed a rather singular approach by qualifying certain acts of abortion as unlawful, but not punishable. Abortions which are performed without the establishment of a medical indication must not be treated as being justified (not unlawful) (Schwangerschaftsabbrüche, die ohne Feststellung einer Indikation nach der Beratungsregelung vorgenommen werden, dürfen nicht für gerechtfertigt (nicht rechtswidrig) erklärt werden). However, abortions performed by a physician within twelve weeks after conception and following obligatory counselling are considered to be unlawful, but are exempt from criminal liability.


ITEMID: 001-23543
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: OLSZEWSKI v. POLAND
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, Mr Grzegorz Olszewski, is a Polish national, who was born in 1958 and lives in Lucień, Poland. He was represented before the Court by Mr Piotr Sendecki, a lawyer practising in Lublin, Poland. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki.
The following account of facts is based on the applicant’s submissions made to the Court and the Polish prosecution service.
On 29 September 1998 the applicant got involved in a domestic dispute between his wife and stepdaughter. No violence was used during the dispute. Subsequently, the applicant’s stepdaughter called the police. When the police officers arrived they woke up the applicant and informed him that he would be taken to a sobering-up centre (izba wytrzeźwień). Although the applicant had drunk wine before the dispute started, he was sober when the police officers arrived. He therefore told the officers that he was not drunk and refused to follow them to the sobering-up centre. The police officers pushed the applicant on the floor and handcuffed him. The applicant and the police officers started to swear at each other.
The applicant was placed in a police car. He quarrelled with the officers and they continued to swear at each other. The police car stopped. The police officers kicked the applicant three or four times in his abdomen. Subsequently, the police car was driven to Gostynin where it was parked for a while near the District Police Station (Komenda Rejonowa Policji). The applicant stayed inside the car.
He was then being taken to the sobering-up centre in Płock. The applicant and the police officers continued to exchange insults. The applicant asked the police officers to take his handcuffs off because they were too tight and his hands were swollen but his request was ignored. His request to be let out to relieve himself was also ignored. When the car arrived at the sobering-up centre the police officers left it. The applicant urinated in his underwear. When the police officers came back and saw that he had wetted himself, they said “they will see pissed scum.”
Subsequently, the applicant was dragged by the police officers inside the building. While being pulled, he lost his shoes and trousers, which he had lowered before he had urinated. The police officers laughed at the applicant.
Once inside the premises of the Płock sobering-up centre, the applicant asked for a doctor but his request was ignored. The applicant was given a breathalyser test. During the test an employee of the centre started to insult him and the applicant replied in offensive language. One of the police officers hit the applicant with a fist in the right part of the face. The blow made the applicant’s teeth loose.
The applicant was then knocked down. He tried to stand up but was hit with an opened hand. The applicant fell down again. While he was lying on his back, an employee of the centre said “we do not like roughnecks here” and stepped on his testicles with a heavy boot.
Subsequently, the applicant was taken to a cell where the employees of the centre started to put a straightjacket on him. At this point, the police officers were not present on the scene. While a straightjacket was being put on the applicant, a struggle evolved. The applicant heard somebody saying: “beat so that marks do not show”. He was hit with a knee in his abdomen. He was also hit in his nose and started to bleed. The applicant was kicked in testicles and fainted.
When he regained consciousness he was in a straightjacket and was tied up with elastic bandages. The applicant’s face was covered with a dirty cloth. The employees of the centre twisted and squashed his testicles. The applicant fainted for the second time during the night. The employees then burned his scrotum.
During the night the applicant was shouting “give me a doctor” but his requests were ignored. From time to time, somebody would shout in reply “go to sleep you whore”.
On 30 September 1998 the applicant was released from the sobering-up centre. He visited a doctor in Płock but was refused admission because he did not have documents. The applicant was then seen by Dr Łudczak at the Gostynin health centre (ośrodek zdrowia). He described the applicant’s injuries in his medical file. He also pointed to the applicant that he had burns on his scrotum and referred him to Dr Gierżyński, the Chief Surgeon of the Gostynin Hospital. When Dr Gierżyński saw the applicant, he initially considered that the applicant should stay in the hospital because of the discharge of yellow fluid from his nose and the symptoms of brain concussion. However, he later changed his mind, examined the applicant and issued a forensic medical certificate. According to the applicant, the certificate does not indicate the following injuries: a bruise on his thigh and swollen testicles.
On 1 October 1998 the applicant worked on a construction site. He was in pain but decided to report to work since it was the first day on a new job, which he had got with great difficulty.
On 29 September 1998 the applicant got involved in a domestic dispute. He was drunk, behaved aggressively and threatened to kill his stepdaughter and mother-in-law. The stepdaughter called the police. Subsequently, both women left the house and waited for the police outdoors.
When the police arrived the applicant woke up. The attending officers informed him about the reasons for their intervention. The applicant began to behave aggressively. He used abusive language towards the police officers and threatened to kill his stepdaughter and mother-in-law in their presence. Both women asked the officers to take the applicant to a sobering-up centre.
The police officers ordered the applicant to follow them to the centre but he refused and started a fight. The officers pushed the applicant on the floor and handcuffed him. At that moment, the applicant suffered a skin abrasion on his forehead.
The applicant was resisting the officers while they were taking him to the police car. Once placed inside the car, the applicant kicked it.
Subsequently, the applicant was brought to the Gostynin District Police Station where the police officers collected H.S. in order to escort him to the Płock sobering-up centre.
The police officers testified that they had not stopped the car on the way to the sobering-up centre and had not assaulted the applicant. Their testimony was confirmed by the documentation of the Płock sobering-up centre.
On the way to the centre the applicant behaved aggressively and kicked the car. When it arrived to the centre, the applicant refused to leave it. Therefore, the police officers had to drag the applicant inside the building.
The applicant continued his aggressive behaviour inside the building. He used abusive language and tried to fight with the employees of the centre. The medical staff of the centre tried to carry out a breathalyser test but the applicant was too intoxicated to provide a specimen of breath. As a result of the applicant’s aggressive behaviour, he was forced to wear a straightjacket between 11.15 p.m. and 5 a.m. The applicant was shouting for almost the whole night. He asked to unbind the straightjacket.
The applicant was released from the sobering-up centre on 30 September 1998 at 7.00 a.m.
On 1 October 1998 the applicant worked on a construction site.
On 1 October 1998 the applicant was examined by a doctor, who made an entry in his medical file kept by the Gostynin health centre and referred him to Dr Gierżyński. On the same day Dr Gierżyński issued a medical certificate.
The Detention Card (karta pobytu) no. 001959, which contains the record of the applicant’s presence in the Płock sobering-up centre, provides the following description of his medical condition:
“INITIAL MEDICAL OPINION
As a result of the initial medical examination I confirm that the client:
1. is intoxicated and qualifies for a detention in the sobering-up centre,
2. requires a referral to a public medical facility /hospital, emergency service, other/,
3. does not require to be present in the sobering-up centre.
The examination with a device detecting intoxication (breathalyser, alcohol test, blood test) showed: Unable to blow a breathalyser. Lack of stability. Alcohol breath.
Signature of a doctor-paramedic on duty in the sobering-up centre (illegible signature)”
None of the points 1 to 3 was marked on the card.
“PRESENCE IN THE SOBERING-UP CENTRE
I. MEDICAL EXAMINATION
The client was subjected to medical examination at 23:10 hours.
1. Medical (circumstantial) background:
a) circumstances, the amount of consumed alcohol, behaviour during medical examination: Does not reveal the circumstances of drinking and the amount of consumed alcohol, psychomotor agitation during examination. Stands up to beat the employees of the sobering-up centre.
2. Subject examination:
a) behaviour: conscious, quarrelling, aggressive
b) mood: agitated
c) walk: unstable
d) speech: slurring
e) traces of vomit: not visible
f) pulse: regular, little tense 74/minute
g) heart: regular beat, clear sound
h) pupil: normal, weakly reacting
i) skin: proper perfusion
j) condition of abdominal cavity: without changes
k) injuries: slight skin abrasion on the right temple
l) disease symptoms: does not disclose
m) description of the condition of the examined person: high degree of intoxication.
II. OTHER APPLIED TREATMENTS AND MEDICATIONS
1. dressings
2. drugs (injections)
3. water bath
4. solitary confinement
5. strapping down
6. straightjacket from 23.15 hours to 5.00 hours because of psychomotor agitation
7. medical condition and behaviour
a) psychiatric condition – psychomotor agitation
b) physical condition – good physical condition
Signature of a doctor-paramedic (Illegible signature)
RELEASE FROM THE SOBERING-UP CENTRE
I. MEDICAL EXAMINATION
After applying the aforesaid treatments and medications, as a result of medical examination (give a degree of sobering-up, psychiatric and medical condition): satisfactory sobering-up. Good health condition.
I. conclude that the person mentioned hereinafter:
1. can be released from the centre
2. requires a referral to a public medical facility: no
Signature of a doctor-paramedic (Illegible signature)”
According to the card the applicant was released from the soberingup centre on 30 September 1998 at 7.00 a.m.
On 1 October 1998 Dr Przemysław Łudczak, a surgeon, made the following entry in the applicant’s medical file kept by the Gostynin health centre:
“The patient submits that he has been beaten 2 days ago by police officers.
Referred to Dr Gierżyński.
- face abrasion
- (two illegible words)
- burn of scrotum (?)”
On 1 October 1998 Dr Andrzej Gierżyński, general practitioner and specialist surgeon, issued a forensic medical certificate, which is worded as follows:
“Medical examination of Olszewski Grzegorz, 40 years old, identity card no. WL 5281575 residing in Zaborów Stary.
On 30.09.98 suffered the following injuries: a skin abrasion on the right temple measuring 4 x 2 centimetres, loose front teeth upper 1 and lower 1, skin abrasions on the right side of groin, a first/second-degree burn on the scrotum measuring 6-8 mm. The aforesaid injuries qualify for Article 157 paragraph 2.”
On 9 October 1998 the applicant requested the prosecution service to initiate criminal proceedings against the police officers and the employees of the sobering-up centre who had ill-treated him on 29 and 30 September 1998.
On 19 October 1998 the applicant appeared before the Gostynin District Prosecutor K. As the applicant smelled with alcohol and declared that he had welded a tank, which used to be filled with alcohol, the prosecutor postponed the interview until the next day.
On 20 October 1998 prosecutor K. interviewed the applicant. He advised the applicant about his rights and took from him a statement requesting the prosecution of the police officers and the employees of the soberingup centre. The applicant also made a statement in which he described the events of 29 and 30 September 1998.
On 20 October 1998 prosecutor K. decided to initiate an investigation of the allegations made by the applicant.
On 26 October 1998 prosecutor K. took statements from the applicant’s wife, mother-in-law and stepdaughter. Their testimony concerned the police intervention in the applicant’s house. The witnesses confirmed that the responding police officers were calm and did not assault the applicant. They handcuffed him because he was aggressive and used abusive language.
On 27 October 1998 the Director of the Płock sobering-up centre informed the prosecutor that the following staff had been on duty in the centre at the time of the applicant’s detention: (i) Mr B., depositary, (ii) Mr M., carer and (iii) Mrs L., paramedic. The Director also submitted a detention card containing the record of the applicant’s presence in the centre.
On 28 October 1998 the Deputy Police Chief of the Gostynin District Police Station informed the prosecutor that Sergeant G. and Constable W. had responded to the applicant’s house on 29 September 1998 and had taken him to the sobering-up centre.
On 17 November 1998 prosecutor K. interviewed Constable W. The witness made a two-page statement in which he gave his account of the intervention in the applicant’s house and his transfer to the soberingup centre. In particular, he stated that the applicant had been aggressive and had used abusive language. Therefore, he had been handcuffed and had suffered skin abrasion on his cheek or forehead. The applicant had remained aggressive in the police car where he had continued to use abusive language and had kicked the car. The applicant had not been assaulted by any of the responding police officers. After he had been turned over to the employees of the sobering-up centre, he had been bound in a straightjacket because of his aggressive behaviour.
On 17 November 1998 prosecutor K. also interviewed the second responding police officer, Sergeant G. He made a page-long statement in which he confirmed the account of events given by Constable W. In addition, he confirmed that the applicant had urinated in the police car.
On 19 November 1998 prosecutor K. interviewed B. The witness stated that he was an employee of the Płock sobering-up centre. He also said that he remembered the surname of Grzegorz Olszewski but did not remember his presence in the centre. The prosecutor asked the witness the following question:
“Do you remember that he was aggressive and had a straightjacket put on?”
The witness replied that there were many situations of that nature and that straightjackets and strapping down would be used in respect of aggressive individuals. However, he did not remember the applicant’s presence and behaviour in the sobering-up centre.
Subsequently, the applicant’s detention card was shown to the witness but he repeated that he did not remember the applicant’s presence in the centre.
On 19 November 1998 prosecutor K. also interviewed L., a paramedic who was on duty in the Płock sobering-up centre at the time of the applicant’s detention. She made the following statement:
“I am on duty in the Płock sobering-up centre 24 hours a week. During the night of 29/30 September 1998 I received in the centre a patient from Gostynin. The patient was aggressive and made threats against the employees of the centre. He was heavily intoxicated. There were three attempts to use breathalyser. He was unable to blow. In view of his aggressive behaviour and for the sake of his safety a straightjacket was put on him.”
At this point, the witness was shown a copy of the applicant’s detention card. After consulting it, she continued:
“According to the card Grzegorz Olszewski wanted to beat the centre staff and on his body there were skin abrasions on the right temple – they had existed at the time of admission. I do not remember anything else. I would like to add that the patient had spent a long time in a straightjacket, which shows that for a very long time he had shown psychomotor agitation. A patient, who is in a straightjacket, is under strict control of a doctor on duty. After two hours straps were eased. They were repeatedly eased during the whole period of his presence. While the patient was in a straightjacket he was aggressive and insulted and cursed everybody. I do not remember his release from the centre.”
On 30 November 1998 prosecutor K. interviewed M. The witness made the following statement:
“I was on duty in the sobering-up centre between 29 and 30 September 1998. From what I remember Grzegorz Olszewski was brought by the police officers from Gostynin, he was taken from a domestic dispute. While he was being taken out of a police car, he quarrelled, i.e. resisted the police officers, did not want to get in. They had to make him get in by using force. We had to use force while we were undressing him. He was aggressive and therefore we had to bind him in a straightjacket. He was insulting us, pulling us, wanted to fight with us, waved his hands, was saying that he was sober. In the room, while he was lying in a straightjacket, he was shouting, insulting, threatening us that he would finish us and those who had brought him. Other patients were asking to calm him because he was yelling all the time. He was shouting without any break during two hours. I do not know for how long he was lying in a straightjacket but it was a long period. That is all I remember.”
On 24 November and 11 December 1998 prosecutor K. and assistant prosecutor S. took statements from two witnesses, who had been detained in the Płock sobering-up centre on 29 and 30 September 1998. The first witnesses confirmed that he had heard somebody shouting during the night. That person shouted “hitlerites”, “murderers” “people, help me” and was asking to unbind his straightjacket. Other individuals present in the centre shouted back to let them sleep and asked the staff to unbind the yelling individual’s straightjacket.
The second witness testified that at the end of September 1998 he was drunk and was taken to a police station. At the station, he saw a man who was calm. They were taken together to a sobering-up centre. However, he did not remember the man’s behaviour on the way to the sobering-up centre and in the centre. The witness also stated that he did not know whether anybody had used violence against the man while he had been detained in the sobering-up centre.
On 21 December 1998 prosecutor K. discontinued the investigation of the allegations made by the applicant and refused to prosecute the police officers and the employees of the Płock sobering-up centre involved in the applicant’s arrest and detention on 29 and 30 September 1998. In addition to the evidence taken from witnesses, he relied on the applicant’s detention card and the medical certificate issued by Dr Gierżyński. The prosecutor also took into account the applicant’s medical file kept by the Gostynin health centre, which contained the following entry: “15 VIII 98. Dental caries. Swollen face. Referred to a dentist.”
The reasoning of the prosecutor’s decision gave firstly an overview of the evidence collected in the course of the investigation. It then stated the following conclusions:
“The collected evidence leads to two versions of events – (1) a version of the complainant Grzegorz Olszewski [and] (2) a version described by the witnesses with respect to the behaviour of Grzegorz Olszewski – members of his family, the police officers, the staff of the sobering-up centre.
The evidence taken from the members of the complainant’s family shows that he was drunk and during the police domestic intervention (intervention took place after the police officers had been called by the complainant’s stepdaughter) Grzegorz Olszewski was an aggressive and attacking party and cursed and insulted the members of [his] family and the police officers. The account of events given by the members of the family was confirmed by the police officers.
The responding police officers used force against the complainant because of his aggressive behaviour. Using the so-called overpowering grips, they pushed him down and handcuffed him. As a result of the complainant’s fall, he suffered face injuries on the right side in the form of skin abrasions.
The aforesaid injuries suffered by the complainant were described in the statements made by the police officers, they were recorded in the detention card of the sobering-up centre, an entry in the health centre medical file and the forensic medical opinion.
The police officers testified consistently that they had taken Grzegorz Olszewski from [his] home to a police car and transported him to Gostynin and then to Płock. In addition, they took from Gostynin one more person in order to transport it to the sobering-up centre. They denied that during transporting the complainant from his place of residence in Gostynin, they stopped or beat him, they did not hit him 34 times in the abdomen, he was held in the police car in a separate room. This denies entirety of the complainant’s testimony.
In the same way, the evidence taken from the employees of the sobering-up centre confirmed by a person present in the centre rebuts the complainant’s version of events.
The version submitted by the employees of the sobering-up centre is confirmed by the entries – notes in the sobering-up centre’s detention card concerning the complainant.
As for the injuries on the complainant’s body described in the forensic medical certificate it should be stated that the skin abrasions on the right side of the face resulted from the use of force by the police officers when they were overpowering Grzegorz Olszewski in his home. Loose upper and lower teeth could result from caries and related swelling of the face already in August 1998 – note in the medical file of the health centre. However, it is not possible to establish in what circumstances the complainant’s scrotum was burned. Twenty-four hours elapsed between the release of the complainant from the sobering-up centre and the diagnosis of [the burns] by the doctor who issued the forensic medical certificate.
The use of physical force and handcuffs against Grzegorz Olszewski constituted an activity resulting from the rights of the police to use the measures of direct coercion against the complainant under Article 16 section 1 point 1 of the Police Act of 6.4.1990.
In view of the above considerations, it should be stated that the police officers from the Gostynin District Police Station who intervened, did not exceed their powers and did not act against the private interest. Also the employees of the sobering-up centre did not exceed their powers and did not beat the complainant.
For those reasons, it should be stated that the behaviour of the police officers and the employees of the sobering-up centre did not constitute an offence under Articles 231 § 1 and 158 § 1 of the Criminal Code.
On the basis of the above considerations I have decided as in the operative part [of the decision].”
The applicant filed with the Płock Regional Prosecutor (Prokurator Okręgowy) an appeal against the decision of the District Prosecutor. On 12 March 1999 the Regional Prosecutor advised the applicant that he had not seen any grounds for allowing his appeal and had therefore transmitted it together with the case file to the Gostynin District Court (Sąd Rejonowy).
On 8 April 1999 judge S. of the Gostynin District Court dismissed the applicant’s appeal. The reasoning of the decision was worded as follows:
“The appeal is unsubstantiated. In the course of the investigation no breach of law by the intervening police officers was found. The evidence taken from the witnesses shows that G. Olszewski, while intoxicated, behaved aggressively, whereas the police used measures provided by law. The court shares the arguments contained in the reasoning of the prosecutor’s decision and having regard to the above decides as in the operative part [of the decision].”
On 22 April 1999 the President of the Gostynin District Court rejected the applicant’s appeal against that decision because no appeal lay against it.
5. The applicant’s pre-trial detention
Between 28 December 1998 and 14 July 1999 the applicant was held in pre-trial detention on a charge of robbery.
Article 157, in so far as relevant, provides:
“§ 2 A person who causes bodily harm or ill health lasting no longer than 7 days, shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 2 years.
§ 3 If a person who committed an act described in (...) § 2 acts without intent, he shall be liable to a fine, a penalty of the restriction of liberty or imprisonment for a term not exceeding 1 year.
§ 4 The prosecution of a crime described in § 2 or 3, if bodily harm or ill health occasioned lasted no longer than 7 days, shall take place under private indictment. ...”
Article 158 § 1 provides:
“A person who takes part in affray or battery, which creates a direct danger of loss of life or consequences described in Art. 156 § 1 or Art. 157 § 1, shall be liable to imprisonment for a term not exceeding 3 years.”
Article 231 § 1 provides:
“A public official, who by abusing his powers or by failing to fulfil his duties, acts to the detriment of public or private interest, shall be liable to imprisonment for a term not exceeding 3 years.”
Article 417 § 1 provides:
“The State Treasury shall be liable for damage caused by a state official during the execution of duties entrusted to him.”
Article 16 of the Police Act of 6 April 1990 reads, in so far as relevant, as follows:
“1. If a lawful order given by a police authority or a policeman has not been complied with, policemen may apply the following coercive measures:
1) physical, technical and chemical means of restraining or escorting persons or of stopping vehicles;
2) truncheons;
3) water cannons;
4) police dogs and horses;
5) rubber bullets fired from fire-arms;
2. Policemen may apply only such coercive measures that correspond to the exigencies of a given situation and are necessary to have their orders obeyed.”
Paragraph 5 of the Ordinance of the Council of Ministers of 17 September 1990 on the Use of Coercive Measures by the Police provides:
“1. Physical force shall be used in order to restrain a person, to counter an attack or to make [a person] obey an order.
2. When using physical force, no one shall hit a person, unless he has to do so in self-defence or in order to counter an unlawful attack against life, health or property of others.”
Paragraph 6 of the Ordinance provides, in so far as relevant, as follows:
“Handcuffs may be used (...) in order to prevent an escape or to prevent an active assault or active resistance. ...”
According to Article 39 of the Law of 26 October 1982 on Education in Sobriety and Counteracting Alcoholism sobering-up centres are operated by local authorities.
Article 40 of the Law provides, in so far as relevant:
“1. Intoxicated persons who behave offensively in a public place or a place of employment, are in a condition endangering their life or health, or are themselves endangering other persons’ life or health, may be taken to a sobering-up centre or a public health care facility, or to their place of residence.
(...)
3. [Intoxicated] persons who have been taken to a sobering-up centre or a police station shall remain there until they become sober but no longer than twenty-four hours. ...”
Article 42 provides, in so far as relevant:
“1. Direct force in the form of holding and immobilising may be used against persons admitted to a sobering-up centre, who create danger to their own or the third persons’ life or health [or] destroy objects in their vicinity.
2. Holding means a temporary and short immobilisation of a person by using physical force.
3. Immobilising means a longer lasting overpowering of a person by using straps, holders, sheets or a straightjacket.
4. Direct force may last only until such time as the reasons for its application cease to exist. ...”
On 23 October 1996 the Minister of Health and Social Services issued an Ordinance, which regulates the organisation of the sobering-up centres. The relevant provisions of the Ordinance are as follows:
“§1.1. Intoxicated persons, whose behaviour causes offence, whose circumstances threaten their life or health or who threaten the life or health of other persons, may be taken to a sobering-up centre (...) by the police officers, the employees of the centre or other persons.”
“§8.1. A person brought to the centre shall be immediately subjected to medical examination.
2. A doctor (paramedic) after examining a person detained in the centre shall assess:
1) medical reasons for placing in the centre, first aid that may be given in the centre, hygiene-sanitary procedures, taking into account the symptoms of intoxication and the lack of contraindications to the detention in the centre, or
2) medical reasons for referring to a hospital or another public health care facility – taking into account the symptoms of intoxication and the existence of indications for hospitalisation, or
3) the lack of symptoms of intoxication justifying a detention in the centre.”
“§12.1. If an employee of the centre (...) finds that a person [who was admitted to the centre]:
1) [has] injuries on his body (...)
- the centre shall immediately inform the police and notify the time-limit of his presence in the centre.”
“§15. Rooms in which persons intoxicated are present are constantly monitored by the authorised employees of the centre. The employee of the centre shall immediately inform a doctor (paramedic) about symptoms pointing to a deterioration of health of an intoxicated person (...).”


ITEMID: 001-85874
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BALDWIN 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 Alan Baldwin, is a British national who was born in 1936 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 8 January 2000. On 5 January 2001, the applicant made a claim for widows’ benefits. On 14 January 2001, the applicant was informed that his claim had been disallowed as he was not a woman. On the same day the applicant made a request for reconsideration. On 7 February 2001 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: 001-70434
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF BECCIEV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - financial award;Non-pecuniary damage -  financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant, Mr Constantin Becciev, is a Moldovan national who was born in 1955 and lives in Chişinău. He is the head of the Chişinău Public Water Company.
9. On 21 February 2003 he was arrested by the Department of Criminal Investigation of the Ministry of Internal Affairs on charges of embezzlement.
10. On 23 February 2003 a criminal investigator in charge of the case applied to the Centru District Court for an order to remand the applicant in custody for thirty days. The reasons invoked by the investigator were the following:
“Becciev committed a serious offence, he might abscond from the investigation authorities and from the court, he might influence the participants in the investigation and the discovery of the truth and the sanction provided by law for the offence is imprisonment for more than one year”.
11. On 24 February 2003, following a hearing where the applicant and his lawyers were present, the Centru District Court issued an order for his remand in custody for twenty-five days. The court’s reasoning was the following:
“the suspect has reached the age at which he may be criminally prosecuted, he is suspected of having committed a serious offence, he might abscond from the investigation authorities and from the court and he might influence the witnesses and the discovery of the truth”.
12. The applicant’s lawyers lodged an appeal against the order, arguing inter alia, that the decision to remand the applicant was groundless. They stated that the proceedings had been pending since 2001 and that during that time the applicant had never obstructed in any way the investigation. He had travelled abroad on many occasions and returned every time and he had always behaved irreproachably as regards the investigation. He was a well-known and respectable man and he had a family and a house and many reputable people were prepared to act as surety if he were to be released in accordance with the provisions of the Code of Criminal Procedure. The Chişinău Municipal Council and the leader of a parliamentary opposition party also declared their intention to act as surety for him in order to secure his release. The lawyers also stated that the applicant was ready to give up his passport. They finally alleged that the applicant’s detention was politically motivated and had been implemented to coincide with the approaching local elections.
13. They requested that the applicant be present in person at the hearing, but the request was dismissed, together with the applicant’s appeal following a hearing on 4 March 2003 by the Chişinău Regional Court. In dismissing the appeal, the court did not rely on any other arguments than those relied upon by the first instance court.
14. Meanwhile the applicant was detained in the remand centre of the Ministry of Internal Affairs in Chişinău.
15. According to the applicant, the conditions of detention were inhuman and degrading. The cell was damp, the window was closed by metal plates and the electric light was always on. The cells were not provided with ventilation. As a result of the damp, the inmates’ clothes were wet and rotted on their bodies. Instead of a toilet, there was a bucket which was not separated from the rest of the cell. Instead of beds, there were wooden shelves with no mattresses, pillows, blankets or bed linen. The inmates were denied the opportunity of a daily walk. There was no means of maintaining hygiene in the cell. There was no shower and the applicant was constantly running the risk of getting infected with tuberculosis, skin infections and other infectious diseases.
16. The applicant submits that the food was inedible. The daily amount spent by the State for a detainee’s food was 3.5 Moldovan Lei (MDL) (0.23 euros (EUR)). Because of the State’s incapacity to provide adequate food, the prisoners were exceptionally allowed to receive food from their families. However, in the applicant’s case the legal provisions were applied very strictly and he was not allowed to receive parcels from his family more than once a month.
17. The applicant was detained in cell no. 6 of the remand centre of the Ministry of Internal Affairs. The surface of the cell was 12 square metres and usually four to five persons were detained in the cell.
18. There was a window in the cell and daylight was available. The ventilation of the cells was effected by the common ventilation system. The cells were provided with water closets. In 2002 the premises of the remand centre were refurbished and the toilets were separated from the rest of the cell by a wall in order to ensure the privacy of the detainees. The cells were permanently provided with tap water, and accordingly the inmates enjoyed an adequate level of hygiene. The cells were frequently disinfected and the detainees had access to a shower once a week.
19. During his detention the applicant had the possibility to play chess, draughts and dominos and to read books and magazines. He also had the possibility to pray and to use religious literature.
20. In their initial observations on the admissibility and merits of September 2004, the Government did not deny the applicant’s allegation that there was no exercise yard in the prison and that accordingly the detainees did not enjoy outdoor exercise. However, in their supplementary observations of June 2005 the Government argued that the applicant enjoyed walks for one hour per day, at any time of the day convenient to him.
21. The detainees were provided with free food in accordance with the norms provided by the Government and the quality of food was satisfactory. The prison was provided on a daily basis with bread, vegetable oil, vegetables, tea and sugar. Because of insufficient funding, the detainees were not served meat and fish; however they were given an increased quantity of cereals and lipids. Moreover, the detainees, including the applicant, had the right to receive food from their families.
22. The applicant had access to medical assistance.
23. On 18 March 2003 the Centru District Court granted the investigator’s request to prolong the applicant’s detention on remand for another thirty days. The court’s reasoning was exactly the same as that relied upon when the detention on remand was first ordered. The applicant appealed against that decision but the appeal was dismissed by the Chişinău Regional Court on 21 March 2003 at a hearing where the applicant was not allowed to be present, although his lawyers were present. No new arguments were given by the Chişinău Regional Court.
24. On 1 April 2003 the applicant was transferred from the remand centre of the Ministry of Internal Affairs to the remand centre of the Ministry of Justice.
25. On 17 April 2003 the Centru District Court again prolonged the applicant’s detention on remand for thirty days. No new reasons were given. The applicant appealed against this decision.
26. On 18 April 2003 the independent weekly newspaper “Timpul” published an interview with the police colonel “C.B.” who had worked as a Superior Inspector of the Cross-Border Financial Crimes Directorate within the Inspectorate General of the Ministry of Internal Affairs and who had been in charge of the applicant’s case for a long time and had arrested the applicant on 21 February 2003. He stated inter alia that:
“I declare with full responsibility that the Becciev file has been fabricated, on the orders of the heads of the Ministry of Internal Affairs, for political reasons. The real target of this fabrication is the Mayor Serafim Urecheanu and his team...
Mr Becciev has provided the investigation organs with all the requested information, he appeared personally before the investigators every time he was asked to, and he never gave any reason to believe that he intended to abscond. As a matter of fact, he travelled abroad on many occasions after the investigation started and returned every time. No other suspects, even those who are clearly involved, have ever been arrested...
The file does not contain and has never contained any evidence that would prove Becciev’s guilt... Many, if not all the witness statements from the file have been falsified or obtained through pressure and blackmail. Even the graphological examination did not prove that it was Becciev’s signature on the documents, on the basis of which the criminal investigation commenced.... The heads of the Ministry of Internal Affairs have put great pressure on me to obtain favourable conclusions from the graphological experts...
I can say that the Vice-Ministers U. and B. have put pressure on the President of the Centru District Court. Judge D.V. told me personally that he has been called by the Vice-Minister B. – his former University friend. In my turn, I told him that the file was being supervised by the President of the country, and that a decision other than one of detention could cost any judge his or her job...
In May 2002 I was invited to see the Vice-Minister A.U., who asked me if I could find some evidence to compromise the Mayor.... In September he called on me again, this time to tell me that I had been included in the investigating group for the Becciev case. He also told me that my target should be the Municipality of Chişinău and the arrest of Becciev and of the Vice-Mayor Anatol Ţurcan... And that I would be promoted if I succeeded....
I have been asked explicitly to obtain a confession by any means, because ‘there was no time to waste, since the elections were approaching’. Then I understood the gravity of the situation....
The decision that I could no longer work with them came to me when they started to pressurise me and to blame me when I could not obtain the necessary confession....
Nobody can or will demonstrate that Becciev was a part of that deal... The investigators know very well who was involved.... It was V.P., one of the owners of Bank “M.”, former member of the Chişinău Municipal Council on behalf of the Communist Party and a sponsor of this party in the last elections...
They thought that I came too close to the truth and got rid of me.”
27. On 25 April 2003 the Chişinău Regional Court held a hearing and dismissed the applicant’s appeal, relying on exactly the same reasons as before. The applicant’s request to be present was denied; however his lawyers were present. The court also denied the applicant’s request to see all investigation documents and to have “C.B.” examined as a witness. It did not give any reasons for this refusal.
28. On 12 June 2003 the investigators concluded their work on the case and the file was sent to the competent court.
29. On 27 July 2003 the first hearing in the criminal proceedings took place before the Râşcani District Court.
30. The applicant was released from detention on 12 August 2003. The criminal proceedings against him are still pending.
31. The relevant parts of the CPT’s report concerning the visit to Moldova between 11 and 21 October 1998 read as follows:
“55. In Chişinău, the remand centre had 23 cells; with an official capacity of 79 places, it was accommodating 40 remand prisoners and 20 administrative detainees at the time of the visit. As in Bălţi, the delegation met in that establishment minors who had been sharing cells with adults during prolonged periods.
The size of the cells varied approximately from 7 m² to 15 m². At the time of the visit, the small cells held up to two detainees, and the larger cells up to four or five. Such a rate of occupancy may be considered as approaching tolerable norms. The cells were equipped with a wooden platform approximately two metres long, generally covering the whole width of the cell, and an Asian toilet. Like the other establishments visited, the detainees were given neither mattresses nor blankets. In addition, ventilation in the cells was mediocre, access to natural light virtually non-existent and artificial lighting, above the door, was permanently on; this disturbed the detainees at night.
The delegation noted that the cell block had a shower area; however, the detainees claimed they did not know that it existed. There were no facilities for outdoor exercise.
56. Depriving persons of their liberty brings with it the responsibility to detain them under conditions which are consistent with the inherent dignity of the human person. The facts found in the course of the CPT’s visit show that the Moldovan authorities have failed to fulfil that responsibility with regard to persons detained in the district police stations and remand centres visited. Moreover, information available to the CPT suggests that the situation is not any different in other police establishments in Moldova. In many ways, the conditions prevailing in the district police stations and the remand centre visited amounted to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained.”
32. The relevant parts of the CPT’s report concerning the visit to Moldova between 10 and 22 June 2001 read as follows:
“56. Regarding the remand centres visited throughout Moldova, the delegation made approximately similar findings, with minor exceptions, on the disastrous and unwholesome material conditions. In order to avoid a detailed description, please see for further information paragraphs 53-55 of the report on the visit of 1998.
At the remand centre of Chisinau these conditions were aggravated by severe overcrowding. At the time of the visit, 248 of detainees were kept in a facility with a maximum capacity of 80 detainees, and thus 9 persons had to live in a 7m² cell, while 11 to 14 persons had to stay in cells of 10 to 15m².
57. In the visited remand centre, the delegation collected numerous complaints on the quantity of food. It basically included: a cup of tea without sugar and a slice of bread in the morning, cereal porridge in the afternoon and a cup of warm water in the evening. In some places the food was distributed only once a day and included a soup and a slice of bread.”
33. The relevant provisions of the Code of Criminal Procedure read as follows:
Article 73 § 1
“If there are serious grounds for believing that an accused will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend ..., one of the following preventive measures may be imposed: a written undertaking not to leave the district, bail, a guarantee by a public organisation or detention on remand.
...
When deciding on the necessity to impose a preventive measure, as well as on the choice of the preventive measure, ... the court shall pay attention, besides the circumstances indicated in the first paragraph of this article, to such circumstances as the seriousness of the imputed offence, the personality of the accused, his or her occupation, age, state of health, family status and other circumstances.
Article 76. Personal Guarantee
The personal guarantee consists of a written commitment made by trustworthy persons in order to guarantee the appropriate behaviour of the accused and his appearance before the investigating organ, prosecutor or court, when need be. The number of guarantors cannot be less than two.
At the moment of making the written commitment, the guarantor shall be acquainted with the merits of the case in relation to which the detention was ordered and shall be warned about his liability in case the accused should breach the rules. In this case, the court may fine each guarantor one hundred times the minimum wage, in accordance with the provisions of Article 294 of the present Code.
Article 78 § 1
Detention on remand may be imposed ... in cases concerning offences in respect of which the law provides for custodial sentences for a period exceeding one year. In exceptional cases, where the court has gathered evidence that an accused committed the acts mentioned in Article 73 § 1, detention on remand may be imposed ... in cases concerning offences in respect of which the law provides for custodial sentences for a period of less than one year.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-61225
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ROSATI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1933 and lives in S. Donà di Piave (Venice).
5. He and his sister are the owners of a flat in Cava De' Tirreni (Salerno), which they had let to A.A.
6. In a writ served on the tenant on 27 June 1991, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 12 March 1993 and summoned the tenant to appear before the Cava De' Tirreni Magistrate (Salerno).
7. By a decision of 16 September 1991, which was made enforceable on 5 November 1991, the Cava De' Tirreni Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 12 March 1994.
8. On 9 April 1994, the applicant served notice on the tenant requiring her to vacate the premises.
9. On 23 April 1994, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 16 May 1994.
10. On 16 May 1994, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order of possession.
11. The tenant asked the Cava De' Tirreni Magistrate to suspend the eviction proceedings.
12. On 28 July 1997, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
13. Pursuant to Law no. 431/98, the enforcement proceedings were suspended until 26 December 2000.
14. On 28 February 2001, the applicant recovered possession of the flat.
15. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
16. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
17. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
18. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
19. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
20. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”.
21. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law n. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
22. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
23. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107083
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŠARIĆ AND OTHERS v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 4. The applicants’ personal details are listed in Annex I to this judgment.
5. The applicants were serviceman employed by the Ministry of Defence (Ministarstvo obrane Republike Hrvatske). In 1996, 1997 and 1998 the applicants occasionally participated in demining operations in the newly liberated territories in Croatia.
6. On the basis of the Decision of the Minister of Defence of 18 September 1995 (see “Relevant domestic law”, below), they were entitled to a special daily allowance for such work.
7. Since the allowances had not been paid to them, on 21 May 2002 each applicant brought a separate civil action against the State in the Knin Municipal Court (Općinski sud u Kninu), seeking payment of the unpaid allowances.
8. The State responded that their actions were time-barred because the three-year limitation period for employment-related claims had expired.
9. In reply, the applicants argued that on several occasions they had asked their commanding officer why the allowances had not been paid. Their commanding officer had made enquiries of his superior, who had then contacted the General Staff of the Croatian Armed Forces (Glavni stožer Oružanih snaga Republike Hrvatske). Eventually, the applicants had been informed through their commanding officer that their claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the State budget. Relying on that information, the applicants argued that the State had acknowledged the debt and that the running of the statutory limitation period had thus been interrupted.
10. On 12 and 14 December 2005 the Knin Municipal Court ruled in favour of the State and dismissed the applicants’ actions. It held that in accordance with the internal regulations of the Ministry of Defence the only person authorised to acknowledge the debt on behalf of the Ministry before the applicants had brought their actions had been the head of its Central Finance Department and his superiors. Therefore, the repeated declarations of the applicants’ commanding officer to the applicants, after making enquiries of his superiors up to the level of the General Staff of the Croatian Armed Forces, that their claims were not in dispute and that the allowances would be paid once funds had been allocated in the budget for that purpose, had not constituted acknowledgement of the debt capable of interrupting the running of the statutory limitation period.
11. On 3 and 10 April 2006 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicants’ appeals and upheld the first-instance judgments endorsing the reasons given therein.
12. The applicants’ subsequent constitutional complaints were dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) in the period between 18 September 2006 and 10 April 2008. The Constitutional Court’s decisions were served on the applicants’ representative on the dates indicated in Annex I to this judgment.
13. Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works (Odluka o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju, unpublished) of 18 September 1995 reads as follows:
“1. Permanent and reserve members of the Armed Forces of the Republic of Croatia carrying out mining and demining works shall have the right to special daily allowances.
2. Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and the Amount of Compensation for Users Financed from the State Budget [that is, 123 Croatian kunas (HRK) at the time], and so from the time of departure to [carry out] mining and demining works, according to the following criteria:
(a) the entire daily allowance for every twenty-four hours spent on mining and demining works, including periods of twelve to twenty-four hours [that is, between twelve and twenty-four hours];
(b) half the daily allowance for periods of eight to twelve hours.
3. The lists of persons entitled to special daily allowances, with details, shall be compiled by the commander at independent battalion level or higher, and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out, at the latest on the third day of the month in respect of the preceding month.
4. This Decision shall enter into force on the day of its adoption, and shall be applicable from 1 June 1995.”
14. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”


ITEMID: 001-60967
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF POSOKHOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Gaukur Jörundsson
TEXT: 8. The applicant was born in 1966 and lives in Taganrog.
9. The applicant worked for the Taganrog Customs Board, supervising the clearance of imported goods at a seaport customs post. In 1996 criminal proceedings were instituted against him and certain others for the alleged smuggling of considerable amounts of vodka.
10. On 22 May 2000 the Neklinovskiy District Court of the Rostov Region, composed of Judge Kink and two lay judges (народные заседатели), Ms Streblyanskaya and Ms Khovyakova, found the applicant guilty of being an accessory in the avoidance of customs duties and of abuse of office.
11. Immediately upon his conviction, the applicant was dispensed from serving the sentence partly because of the expiry of a statutory limitation period and partly because of a 1997 amnesty law.
12. On 26 and 29 May and 16 June 2000 the applicant and his counsel filed appeals against the judgment.
13. On 17 August 2000 the applicant requested from the President of the Neklinovskiy District Court a list of lay judges currently serving in the court and a copy of the President’s decision selecting those lay judges who were to sit in cases under the presidency of Judge Kink between January and May 2000.
14. On 29 August 2000 the applicant supplemented his appeal with new points. He challenged the bench that had delivered the judgment of 22 May, alleging a breach of the rules on the appointment of lay judges. In particular, the applicant submitted that, whereas the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction (“the Lay Judges Act”) allowed lay judges to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the lay judges Ms Streblyanskaya and Ms Khovyakova had been engaged earlier in the course of 2000 in several other trials. In addition, it was claimed that Ms Streblyanskaya’s statutory term of office had expired before the day of the applicant’s trial.
15. On 29 August 2000 the Criminal Division of the Rostov Regional Court dismissed the applicant’s appeals. The court also refused an application by the applicant and his counsel for access to copies of earlier judgments delivered by the Neklinovskiy District Court under the presidency of Judge Kink. The court held that the applicant had been informed of his right to challenge the bench at the outset of his trial, but he had failed to do so. No breach of the rules for the appointment of lay judges had been established.
16. On 16 November 2000 the President of the Rostov Regional Court refused an application for supervisory review (принесение протеста в порядке надзора) of the applicant’s case. In his application to the President, the applicant had raised a new argument in support of his allegation that the judges had not been appointed according to the applicable rules: it was claimed that there was nothing to indicate that the judges had been drawn at random by lot as required by the Lay Judges Act. The President rejected the applicant’s earlier argument as to the expiry of the judges’ term, referring to the Presidential Decree of 25 January 2000, whereby the terms of lay judges already in office had been extended pending the appointment of new ones. The President noted that the list of lay judges for the Rostov Region had been drawn up on 18 October 2000, after the applicant’s conviction. No answer was given to the applicant’s allegation that the judges had not been drawn by lot.
17. On 20 February 2001 the President of the Rostov Regional Court refused another application by the applicant for a supervisory review.
18. In August and October 2001 the applicant requested the President of the Legislature of the Neklinovskiy District to provide information concerning the lay judges who had been authorised to sit in cases during the period between 10 and 22 May 2000.
19. On 2 October 2001 the Neklinovskiy District Authority informed the applicant that the pertinent list of lay judges for the Neklinovskiy District had been compiled on 4 February 2000 and confirmed by the Legislature of the Rostov Region on 15 June 2000.
20. On an unspecified date following communication of the present application to the Government, the President of the Rostov Regional Court lodged an application for a supervisory review of the case on the ground that the judgment of 22 May 2000 had not described in sufficient detail the offence committed by the applicant and his accomplices.
21. On 3 May 2001 the Presidium of the Rostov Regional Court granted the application, partly quashed the judgment of 22 May 2000 and the appeal judgment of 29 August 2000, and ordered a fresh examination of the case.
22. On 2 July 2001 the Neklinovskiy District Court found the applicant guilty of the same offences but dispensed him from serving the sentence because the case was time-barred.
23. An appeal by the applicant was dismissed by the Rostov Regional Court on 2 October 2001 and the judgment became final.
24. Following another application for supervisory review lodged by the President of the Rostov Regional Court on an unspecified date, the Presidium of the Rostov Regional Court on 31 January 2002 quashed the decisions given on 2 July and 2 October 2001. It found that the courts were not in a position to decide on the applicant’s guilt because the whole case was time-barred.
25. Following the request of the applicant’s lawyer, on 28 August 2002 the Neklinovskiy District Authority informed the applicant that the list of lay judges serving in the district had been adopted by a decision of the District Legislature on 4 February 2000 and confirmed by a decision of the Rostov Regional Legislature on 15 June 2000.
26. On 4 October 2002, the Neklinovskiy District Authority informed the applicant that there was no record of any adoption of lay judges’ lists before 4 February 2000 [The original letter indicated the date as “4 February 2002”, apparently a typographical error].
27. Article 15 of the Code of Criminal Procedure provides that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoy the same rights as the professional judge.
28. On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into force. By section 1(2) of the Act, lay judges are persons authorised to sit in civil and criminal cases as non-professional judges.
Section 2 of the Act provides that lists of lay judges should be compiled for every district court by local self-governing representative authorities, such lists being subject to confirmation by the legislature of the respective Federation entity. Section 5 of the Act, which determines the procedure for the selection of lay judges, provides that the president of a district court should draw lots at random from a list of names of a certain number of lay judges to be assigned to the competent district court. The number of lay judges assigned to every professional judge should be at least three times greater than that needed for a hearing. Since most criminal cases in Russia are examined by a court composed of one professional judge and two lay persons, it appears that every judge must have at least six lay judges attached to him or her. Out of these six, a judge picks two at random to sit in a particular case.
By section 9, lay judges should be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may not be called more than once a year.
Under the Decree of the Acting President of Russia issued on 25 January 2000, lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges, as confirmed by the legislatures of the Federation’s entities.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1