ITEMID: 001-78591
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TARARIYEVA v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violations of Art. 2;No separate issue under Art. 13;Violations of Art. 3;No violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 6. The applicant was born in 1946 and lives in the Krasnodar Region. She is the mother of Mr Nikolay Ivanovich Tarariyev, a Russian national who was born in 1976 and died on 4 September 2002.
7. On 5 October 1996 Mr Tarariyev was involved in a fist fight in which he hit his former girlfriend's boyfriend. The injured man died three days later.
8. On 8 October 1996 criminal proceedings were instituted against Mr Tarariyev on suspicion of having caused grievous bodily injury that resulted in the victim's death, an offence under Article 108 § 2 of the RSFSR Criminal Code.
9. On 6 April 2000 Mr Tarariyev was convicted as charged and sentenced to six years' imprisonment in a correctional colony. On the same day he was taken into custody.
10. On 17 May 2000 the Krasnodar Regional Court upheld the conviction.
11. Mr Tarariyev was sent to serve his sentence at correctional facility no. UO-68/9 in the town of Khadyzhensk in the Krasnodar Region (“the Khadyzhensk colony”).
12. On 10 January 2001 Mr Tarariyev, who was in a serious condition, was taken into hospital for in-patient treatment. He was diagnosed with Morgagni-Adams-Stokes syndrome and an acute ulcer condition. Doctors prescribed strict bed rest and medicines. On 16 January 2001 Mr Tarariyev's state of health improved slightly.
13. On 22 January 2001 he was escorted to Treatment and Prevention Institution no. 5 (14) (lechebno-profilakticheskoye uchrezhdenie no. 5 (14) – “prison hospital”) where he received treatment from 1 to 12 February 2001.
14. On 1 or 2 March 2001 Mr Tarariyev was brought back from the prison hospital to the Khadyzhensk colony with acute gastroduodenitis.
15. On 6 March 2001 he was examined and diagnosed with chronic gastroduodenitis. Certain medicines and vitamins were prescribed.
16. On 2 August 2001 the Presidium of the Krasnodar Regional Court quashed the judgments of 6 April and 17 May 2000 under the supervisory review procedure and remitted the case for a new trial.
17. On 22 September 2001 Mr Tarariyev was transferred to the Krasnodar detention centre (“the Krasnodar SIZO”).
18. On 20 February 2002 Mr Tarariyev fainted in the court room. The court ordered a medical examination of Mr Tarariyev by doctors from the Krasnodar SIZO and Afinskiy District Hospital. It put questions to them about Mr Tarariyev's illnesses and asked whether he needed in-patient treatment and whether he could remain in detention.
19. On 22 February 2002 Afinskiy District Hospital sent the following report to the court, signed by the deputy head doctor, the head of department and the doctor in charge:
“Afinskiy District Hospital no. 3 replies that Mr Tarariyev is undergoing treatment in the department of digestive illnesses in connection with a heart illness (myocarditis) and an acute condition of duodenal ulcer.
For treatment and differential diagnosis the patient is to remain in the department for no less than two weeks. [He] cannot be held in an investigations ward or detention facility.”
20. On 1 March 2002 Mr Tarariyev was discharged from the hospital to the Krasnodar SIZO. On 6 March 2002 he sought medical assistance and received out-patient treatment. He was diagnosed with stomach and duodenal ulcers, cardioneurosis and chronic gastroduodenitis.
21. On 19 April 2002 the Severskiy District Court pronounced a new conviction against Mr Tarariyev and sentenced him to six years' imprisonment in a correctional colony. On 10 July 2002 the Krasnodar Regional Court upheld the conviction on appeal.
22. On 31 July 2002 Mr Tarariyev was transferred to the Khadyzhensk colony. According to the applicant, upon his arrival all his medicines were taken away from him and no medical assistance was provided.
23. At 8.30 a.m. on 20 August 2002 Mr Tarariyev contacted the medical department of the colony, complaining of severe pain. He was diagnosed with a perforated duodenal ulcer and peritonitis. In view of his serious condition, a decision was made to transfer him to a civilian hospital.
24. At 1 p.m. on the same day surgery was performed on Mr Tarariyev at Apsheronsk Central District Hospital (“Apsheronsk Hospital” or “the civilian hospital”).
25. The applicant maintained that she had visited her son on 21 and 22 August and seen him shackled with handcuffs by his left hand to the hospital bed. In support of her allegation she produced a statement signed by a friend of hers, Ms T., who had also come to visit on 21 August. With the permission of the head of the resuscitation department, the applicant had stayed overnight on a spare bed. Her son had given her a signed form authorising her to collect his personal belongings.
26. On 21 and 22 August the applicant complained to the Apsheronsk prosecutor, the Krasnodar Regional Prosecutor's Office, the President of the Krasnodar Regional Court and the deputy head of the Khadyzhensk colony about the handcuffing of her son and asked that he not be sent to the prison hospital in view of his condition.
27. On 22 August 2002 Mr Tarariyev was diagnosed with a breakdown of sutures in the duodenum and duodenal fistula and peritonitis. He was discharged from Apsheronsk Hospital and transported to the prison hospital, 120 km from Apsheronsk.
28. According to the Government, Mr Tarariyev was transported in a “special car” accompanied by an experienced medical nurse who carried a set of necessary medical equipment on her. They produced a written statement by the nurse. She indicated that during the journey she had talked to Mr Tarariyev about his health and taken his blood pressure, which had been stable. The patient had had no complaints. The journey had lasted two hours.
29. According to the applicant, she had objected to her son's discharge and transfer but the head of the resuscitation department, Mr K., had told her that the transfer was mandatory because Mr Tarariyev was a convict. She had helped the medical staff to put the applicant, wrapped in a blanket, onto a wheel stretcher and then into the prison van (avtozak) onto a layer of padded cotton mattresses.
30. On 24 August 2002 further surgery on Mr Tarariyev's abdominal organs was performed in the prison hospital.
31. On 4 September 2002 the applicant came to see her son and learnt that he had died at 7.35 a.m. that day.
32. According to the death certificate of 5 September 2002, the autopsy established that the death had been caused by acute anaemia (blood loss) provoked by massive gastrointestinal haemorrhaging. A perforated duodenal ulcer was noted as a concomitant illness.
33. On 7 September 2002 an assistant to the Teuchezh Inter-District Prosecutor informed the applicant of the decision not to initiate criminal proceedings in connection with Mr Tarariyev's death.
34. On 8 February 2003 the Apsheronsk district prosecutor told the applicant that the medical specialists at the Khadyzhensk colony had done all they could to save Mr Tarariyev's life, as they had sent him to Apsheronsk Hospital, which possessed the necessary surgical equipment.
35. On 19 February 2003 the Apsheronsk district prosecutor issued a decision to initiate criminal investigation no. 366214 into the actions of the medical specialists at Apsheronsk Hospital. The Apsheronsk District Police Department was requested to carry out an inquiry under Article 118 § 2 of the Criminal Code (negligent infliction of a grievous bodily injury resulting from incompetent performance of professional duties).
36. Between 3 and 26 March 2003 the investigators interviewed Doctors Du., Da. and K. from Apsheronsk Hospital, the psychologist from the Khadyzhensk colony and Mr D., the surgeon from the prison hospital. Mr D. testified as follows:
“... on the day of arrival Mr Tarariyev was in a serious state, unfit for transport ... Conservative therapy was recommended ... In the night of 23 August 2002 he began to haemorrhage and we started discussing surgery ... On 4 September 2002 he had another bout of intestinal haemorrhaging from the ulcer defect ... [The hospital] has no facilities for blood transfusion because it has no contract with the blood-transfusion service. For that reason Mr Tarariyev received blood substitutes which could not stabilise haemodynamics adequately ...”
37. On 27 March 2003 a police investigator ordered a medical inquiry into the circumstances of Mr Tarariyev's treatment and death.
38. By a decision of 1 April 2003, the applicant was granted victim status in criminal case no. 366214.
39. On 29 April 2003 a panel of three medical specialists returned the following unanimous findings:
“...6. Given the duodenal ulcer complicated by perforation (defect of the wall of a hollow organ), the transfer of Mr Tarariyev from the [Khadyzhensk] colony to Apsheronsk Hospital for surgery was vital ...
4.5. The examination and treatment of Mr Tarariyev in Apsheronsk Hospital at the time of his arrival was timely as his condition required emergency surgery. Owing to a short and inadequate report on the operation at Apsheronsk Hospital (the state of the stomach and organs of the abdominal cavity is not described, there is no indication of the method of suturing the ulcer defect or disinfecting and draining the abdominal cavity), it is impossible to determine whether the surgical technique was correct. Two days later a breakdown of the sutures applied to the ulcer defect was observed, which gives rise to doubts about the quality of ... the surgery performed ...
7.8. On 22 August 2002 the patient Tarariyev was unreasonably transferred to [the prison hospital] with the diagnosis 'Sutures breakdown in the duodenum. Duodenal fistula in formation, peritonitis'. The patient was in an extremely serious condition, not fit for transport and required further emergency surgery – further laparotomy, revision and sanation of organs of the abdominal cavity and removal of the duodenal fistula, which was not done by either the doctors at Apsheronsk Hospital or the doctors at the [prison hospital]. His transportation to the [prison hospital] aggravated the patient's condition and delayed emergency medical assistance. For unspecified reasons the surgery in the [prison hospital] was performed too late, two days after [the patient's] arrival ...
9. The experts' panel considers that there is no causal link between the actions of the doctors at the [Khadyzhensk] colony and Mr Tarariyev's death ... Defects in the medical assistance administered to Mr Tarariyev at Apsheronsk Hospital and the [prison hospital] cumulatively resulted in the patient's death and there is a causal link between these events.”
40. On 21 May 2003 charges were brought under Article 109 § 2 of the Criminal Code (negligent manslaughter resulting from incompetent performance of professional duties) against the doctors from Apsheronsk Hospital and the prison hospital.
41. On 3 June 2003 the case against the doctors from the prison hospital was severed and referred for investigation to the Krasnodar Regional Prosecutor.
42. On 4 June 2003 the applicant asked the Apsheronsk district prosecutor to put additional questions to medical experts. In particular, she disagreed with the experts' findings in the part exculpating the medical staff at the Khadyzhensk colony. She submitted that they were to blame for the acute condition of her son's ulcer and its ultimate perforation because all medicines had been taken away from him and he had had to pick plantain and dandelions for self-treatment. The applicant did not receive any reply to her request.
43. On 6 June 2003 an investigator from the Apsheronsk district prosecutor's office commissioned a supplementary medical expert examination, asking the experts to determine what medical instructions the doctors at Apsheronsk Hospital had failed to comply with.
44. On 19 June 2003 the experts reported as follows:
“The experts' panel considers that the nurse O., the internist Kh., the anaesthetists-resuscitators K. and Shch. and the head of the resuscitation and anaesthology department K. did not violate any provisions of their Code of Practice ... when providing medical assistance to Mr Tarariyev.
The surgeon Du. did not arrange for a consultation by an internist before the surgery; the surgery was performed with technical defects that resulted in the breakdown of sutures; he did not call for the head of the surgery department in good time (on 22 August 2002, i.e. two days later); together with the head of department, he decided to discharge the patient, who was unfit for transportation, to another institution; he filled in the medical documents approximately ... whereby he violated the rules governing provision of medical assistance in the field of general surgery and [certain provisions] of the Code of Practice of surgeons.
The head of the surgery department, Da., failed to monitor the surgeon Du.'s actions; he did not examine the patient Tarariyev daily; it was his duty to control the discharge of a seriously ill patient unfit for transport (the surgical methods were chosen incorrectly, further emergency surgery was required, a consultation with an expert in resuscitation and an internist was not organised before the discharge), which was in violation of [certain provisions] of the Code of Practice binding on heads of surgery departments.
Having regard to the above, the panel considers that the unjustified discharge of the seriously ill patient Tarariyev, who was unfit for transportation, from Apsheronsk Hospital led to the belated provision of medical assistance, the development of complications, and death, for which the head of the surgery department is to be held liable pursuant to the Code of Practice.”
45. By a decision of 21 June 2003 the senior assistant to the Adygheya Republic prosecutor refused to initiate criminal proceedings against the doctors from the prison hospital on the ground that the alleged offence had not been committed (otsutstvie sobytiya prestupleniya). On the basis of statements by Doctor D. and the deputy head of the therapy department, it was established that the medical records provided by Apsheronsk Hospital had contained no information on the surgery performed or post-operative complications, such as the breakdown of sutures. Mr Tarariyev's condition had been further aggravated by the conditions of his transfer in a prison van. Further surgery had not been performed immediately because an examination of the patient had been required. According to the decision, the very length of the post-operative period showed that the further surgery had been performed correctly and that the ulcerative defect which had ultimately caused the death had not been a consequence of it. On 25 August 2003 the applicant received a copy of the decision.
46. On 10 July 2003 the investigator closed the criminal case against all the other doctors from Apsheronsk Hospital and preferred criminal charges against the head of the surgery department Mr Da. On 22 August 2003 the case was set down for trial, and the applicant joined the proceedings as a civil party.
47. On 30 September 2003 the Apsheronsk District Court of the Kransodar Region acquitted Mr Da. on the ground that no evidence produced by the prosecution established his guilt. In particular, the report of the medical experts of 29 April 2003 had only established a causal link between the actions of the doctors at both hospitals and Mr Tarariyev's death, but had not directly implicated Mr Da. The second report of 19 June 2003 could not be relied upon because the Code of Practice was regarded as inadmissible evidence (for unspecified reasons). On the basis of Mr K.'s testimony, the court found that Mr Da. could not reasonably have foreseen the patient's death because Mr Tarariyev's condition at the time of his discharge “was improving” and “permitted his transport to [the prison hospital]”. The judgment was silent on the outcome of the applicant's civil claim.
48. Both the applicant and the prosecution appealed. The applicant claimed, in particular, that Mr Da. had sent her son to certain death because he had authorised his discharge in a serious condition and a journey of more than 100 km in a vehicle unfit for the transportation of patients. The court did not determine her civil claim against Mr Da. A request by the applicant for a ten-day adjournment on the ground that her lawyer was engaged in the regional court was refused. The prosecution challenged the court's decisions on admissibility and assessment of evidence.
49. On 10 December 2003 the Krasnodar Regional Court examined the appeals and upheld the acquittal, endorsing the arguments of the first-instance court.
50. On 5 November 2003 the senior assistant to the Adygheya Republic prosecutor reported to the applicant that an additional inquiry into the actions of the staff of the prison hospital had been carried out further to her complaint to the Prosecutor General's Office. It was found that Mr Tarariyev had been kept in intensive care and had received intensive infusion and antibacterial treatment in preparation for the surgery. Therefore, no negligence could be established.
51. On 27 January and 2 March 2004 the Prosecutor General's Office told the applicant that all inquiries had been carried out in a comprehensive and objective manner and there were no grounds to quash the decisions made.
52. Medical in-patient record no. 53, opened for Mr Tarariyev on 1 February 2001 at the prison hospital states:
“Preliminary diagnosis: duodenal ulcer, recrudescence of chronic gastritis ...
12 February 2001: discharged to the colony after improvement. Recommendations have been made...”
53. A duplicate of an unnumbered out-patient record from the Khadyzhensk colony states:
“Arrived from the [Kransodar SIZO] without a medical record. 31 July 2002: healthy, no complaints. Stomach ulcer in the patient's medical history. Tuberculosis specialist: healthy. Internist: healthy.
20 August 2002, 8.30 a.m. ... Diagnosis: perforated duodenal ulcer. General peritonitis. Hypovolemic shock, 2nd degree. Needs urgent surgery. Medicines: ...”
54. Medical in-patient record no. 7377/1362, opened for Mr Tarariyev on 20 August 2002 at 11.30 a.m. at the surgery unit of Apsheronsk Hospital states:
“... 20 August 2002, 1-2.35 p.m. Surgery: laparotomy. Suture ligation of ulcer. Drainage of the abdominal cavity ...
22 August 2002, 8 a.m.-2 p.m. Examination by the head of the department. The patient is in a serious condition due to the early post-surgery period and breakdown of sutures in the ulcer area ...
23 [sic] August 2002: discharged for transfer to a special hospital.”
55. Medical record no. 419, opened for Mr Tarariyev on 22 August 2002 at 5.30 p.m. in the surgery unit of the prison hospital states:
“... 24 August 2002, 3 a.m., doctor on duty. Urgent call to the resuscitation room... The patient is in a very serious condition ... haemorrhagic shock. Resuscitation measures taken. Treatment within the hospital capacity: there is an insufficient quantity of menadione or aminocaproic acid ...
24 August 2002, 7.35 a.m.-12.35 p.m. Surgery no. 225: further laparotomy ...
29 August 2002. The patient's state is stable, with a tendency to improve ...
4 September 2002, 5.50 a.m. Urgent call to the room. Intense chest pain ... At 7.35 a.m. death is confirmed.”
56. On 5 December 2005 the applicant complained to the Court that on 1 and 2 December 2005 the Regional Prosecutor's Office had formally questioned Ms T. about the events described in her statement (see paragraph 25 above). In the applicant's view, such conduct of the domestic authorities had clearly been intimidating for her witness.
57. On 19 December 2005 the Government submitted their observations on the merits. They claimed, in particular, that
“... the applicant's allegation that she visited Mr Tarariyev in the resuscitation unit of Apsheronsk Central Hospital... and supposedly saw that he was handcuffed to the bed, does not correspond with the reality and misleads the Court. According to the Russian Federation Prosecutor General's Office ... repeated checks have established that neither the applicant nor other persons, except for medical staff and guards, had been admitted to see Mr Tarariyev... Thus, referring to the information of the Federal Service of Execution of Sentences and the Prosecutor General's Office, the Russian Federation authorities insist that during Mr Tarariyev's stay at Apsheronsk Central Hospital for treatment he was not handcuffed.”
58. On 19 December 2005 the Court asked the Government whether Ms T. had been interviewed and, if so, what the purpose and legal basis of that interview had been. The Government were also requested to produce copies of the interview records.
59. On 13 January 2006 the Government submitted their reply. They acknowledged that on 30 November and 1 December 2005, further to a request by the Government's Representative before the European Court dated 12 November 2005, Ms T. had been summoned to the Severskiy district prosecutor's office for the purpose of verifying the applicant's complaint to the Court. The Government claimed that Ms T. had not been “questioned” within the meaning of the domestic law but merely asked to “provide an explanation” in accordance with section 22 of the Public Prosecutors Act. No pressure had been exerted on Ms T. and the constitutional guarantee against self-incrimination had been explained to her. The Government claimed that there had been no hindrance of the applicant's right of individual petition under Article 34 of the Convention.
60. The Government produced copies of two printed statements signed by the deputy prosecutor of the Severskiy district and by Ms T. The statement of 30 November 2005 reads as follows:
“I have known Mrs Tarariyeva since 1993 because I then dated her son ... I know that Mrs Tarariyeva applied to the European Court and I know the subject matter of her application ... Mrs Tarariyeva did not ask me to confirm any facts which did not actually happen.
On 21 August 2002 I went to Apsheronsk Hospital to see Mr Tarariyev at the request of his mother. He was in a separate room in the resuscitation department... There was a uniformed police officer with a submachine gun in the same room, and two police officers stood guard outside the room. We were let into the room in the presence of the head of department. Mr Tarariyev was in a serious condition... He could speak, but with great difficulty. His left hand was attached with handcuffs to the metal rail of the bed ... I remained in the room for five to fifteen minutes. Several drips were connected to Mr Tarariyev, to his right arm ... I went only once to Apsheronsk Hospital and have not seen Mr Tarariyev since.”
61. The statement of 1 December 2005 reads as follows:
“In reply to additional questions, I confirm that I visited Mr Tarariyev at Apsheronsk Hospital on 21 August 2002 ... Mrs Tarariyeva and I had come to Apsheronsk in the night of 20 August 2002 but they had not let us in because Mr Tarariyev had just undergone surgery ... I cannot say whether Mr Tarariyev was guarded by police. They might have been convoy officers; I do not know their insignia. All three of them wore green camouflage uniforms. The officer with a submachine gun, who was in Mr Tarariyev's room, sometimes sat on the bed or folding bed and sometimes got up and walked about. I do not remember the appearance of the officers who stood guard outside the room but I can describe the officer who was in the room ...”
62. The general provisions on liability for damage read as follows:
“1. Damage inflicted on the person or property of an individual... shall be reimbursed in full by the person who inflicted the damage ...
2. The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his own ...”
63. If criminal proceedings are discontinued at the stage of the investigation, an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)).
64. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted on the ground that one or more constituent elements of a criminal offence are missing (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in civil proceedings (Article 306 § 2).
65. Section 22 provides that a public prosecutor may summon officials or private persons and ask them for explanations about violations of laws.
66. The Penitentiary Act (the Federal Law on Institutions and Authorities Executing Custodial Criminal Sentences, no. 5473-I of 21 July 1993) provides that handcuffs may be used on detainees with a view to putting an end to mass disorder or during the convoy of detainees whose conduct gives reason to believe that they might escape or harm themselves or others (section 30 (2) and (4)).
67. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“a. Access to a doctor
... 35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”
b. Equivalence of care
38. A prison health care service should be able to provide medical treatment and nursing care ... in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment ...”
VIOLATED_ARTICLES: 2
3
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-113555
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KURA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1962 and lives in Sokołόw Małopolski.
6. The applicant is a single mother and has three children. Prior to her application for an earlyretirement pension she had been employed by the same company for twenty years and paid social security contributions to the State.
7. On 19 January 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension”.
8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1988) suffered from chronic asthma (przewlekła astma oskrzelowa) and that she had been in need of her parent’s constant care.
9. On 29 January 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 January 2001 in the net amount of 593 Polish zlotys (PLN).
10. The Social Security Board initially suspended the payment of the pension until 1 March 2001 due to the fact that the applicant was still working on the date of the decision. The applicant resigned from her job.
11. On an unspecified date Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 16 May 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
12. On 27 May 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance.
13. The applicant appealed against the respective decisions divesting her of the right to an earlyretirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
14. On 1 August 2002 the Rzeszow Regional Court (Sąd Okręgowy) allowed the appeal and granted the applicant the EWK pension. The SSB appealed against the judgment.
15. On 19 March 2003 the Rzeszow Court of Appeal allowed the appeal and remitted the case for reconsideration.
16. On 20 November 2003 the Rzeszow Regional Court upheld the SSB’s decision of 27 May 2002 and dismissed the applicant’s appeal against it. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
17. The applicant further appealed against the firstinstance judgment.
18. On 26 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
19. The applicant did not lodge a cassation appeal with the Supreme Court.
20. Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension.
21. The applicant submitted that after the revocation of the EWK pension she had not received any unemployment or other benefits from the State.
22. The Government submitted that between 29 August 2006 and 24 August 2009 the applicant has been intermittently employed and was receiving a salary of approximately PLN 11,000 per year. In 2010 the applicant received unemployment benefit for a few months. In addition, the Government maintained that the applicant has been receiving child support payment, apparently from the father of her children, in the amount of PLN 7,500 per year. However, it is not clear how long she has been receiving such payment.
23. The Government submitted that the applicant’s two adult children have been employed since 2006. Moreover, the child in respect of whom the applicant had been granted the EWK pension, now aged 21, started working in 2009.
24. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.
25. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2022.
26. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
27. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
28. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
29. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009.
30. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
31. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
32. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
33. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
34. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
35. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
36. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
37. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-114290
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SASU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Ioan Sasu, is a Romanian national, who was born in 1955 and lives in Arpaşul de Jos, Sibiu County.
2. The Romanian Government (“the Government”) are represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In a final decision of 11 November 1999 the Supreme Court of Justice convicted the applicant of murder and sentenced him to sixteen years’ imprisonment.
5. The applicant lodged several requests for revision of the final decision. They were all rejected by the courts on the grounds that the applicant had failed to bring evidence that would warrant the reopening of the proceedings and that no new facts or circumstances had been discovered that would have been unknown at the date when the final decision had been taken.
6. Two of those requests were dismissed by different panels of the Brasov Court of Appeal on 4 and 26 July 2007.
7. The applicant started serving his prison sentence on 17 September 1998. He remained in prison until 2 February 2010 when he was released conditionally. During his term of imprisonment, he was transferred sixty-eight times between eight prisons and three prison hospitals, as required by his state of health or a number of on-going court cases in which he was involved.
8. At the beginning of the detention period, it had been recorded that the applicant was suffering from lumbar lordosis (discopatie lombară) and psychopathy, the latter having been first diagnosed in 1976. The prison medical records indicate that he had received medical care and treatment for his condition.
9. During his detention, he was also diagnosed with heart disease, sick sinus syndrome and peripheral vascular disease.
10. On several occasions he was admitted to prison hospitals for treatment of heart disease and mental illness. He was also prescribed a special diet.
11. The applicant was held in Mărgineni Prison on several occasions from 27 September 2001 to 20 May 2003 and returned there on a number of occasions later in his sentence. He claimed that despite his mental illness he had had to work twelve hours a day in 2002 and 2003. During that time, because of overcrowding, two detainees had been sharing one bed.
12. On 3 October 2006 the applicant brought an action against two members of the commission that had given him permission to work, seeking damages under Articles 998-999 of the former Civil Code. On 16 May 2007 the Moreni District Court dismissed his action on the grounds that he had failed to prove a causal link between the two defendants and the alleged damage. On 15 January 2008 that decision was upheld on its merits by the Dâmboviţa County Court. The applicant’s subsequent appeal in cassation was declared null and void by the Ploieşti Court of Appeal in a final decision of 4 June 2008, as the applicant had failed to submit the reasons for his appeal within the time-limit.
13. According to information provided by the Prison Authority (Administraţia Penitenciarelor), the applicant was held in Aiud Prison eighteen times during his sentence, his detention there ranging from a few days to six or seven months at a time. After 2002 smoking was prohibited in all cells and there were designated areas for smoking.
14. On two occasions while detained in Aiud Prison, in February and September 2005, the applicant voluntarily took an overdose of medication. After detoxification, the doctors recommended psychiatric assistance at Jilava Prison Hospital. After each episode, the applicant was transferred – for one month the first time and nearly six months the second time – to Jilava Prison Hospital.
15. On 21 February 2007 the Sibiu District Court dismissed as ill-founded an action brought by the applicant against the prison governor and doctor concerning the conditions of his detention in Aiud Prison. He complained that he was being held with dangerous detainees and that he had not received adequate treatment for his psychiatric condition. He also complained that the governor had not assisted him in obtaining his pension file from Sibiu (a procedure described under point 7 below).
16. The court noted that the applicant’s placement in one cell or another had been determined by the prison’s internal regulations and had not been left to the discretion of the governor. It also noted that while the applicant’s mental illness entitled him to special detention conditions, it did not entitle him to privileges. Concerning the allegations of lack of medical treatment, the court noted that the applicant had received medication, and considered that the prison doctor was not responsible for the fact that the applicant had taken an overdose by swallowing all the pills at once.
17. The court also noted that the fact that the applicant did not enjoy the food he received was not imputable to either the governor or the doctor, in so far as the applicant could not prove that he had suffered any injurious consequences from his diet.
18. Lastly, the court noted that the applicant had applied to the Sibiu County Pensions Authority for an expert evaluation in order to have his pension rights established, and therefore concluded that neither the governor nor the doctor had committed any illegal acts that would render them responsible in this regard (nu există faptă ilicită).
19. The official prison records indicate that between 2006 and 2008 the applicant received nineteen envelopes with stamps for his correspondence. Five other similar requests were refused by the prison administration, either on the basis that the applicant had recently received a large number of envelopes or because he had had sufficient funds in his account to allow him to purchase the envelopes himself. He did not complain about those decisions.
20. On 18 August, 3 and 11 September 2007 and 12 May 2008 the applicant asked for permission to visit his sick mother, but his requests were dismissed by the prison board in charge.
21. It appears that the applicant did not lodge an appeal against the prison authorities’ decision with the courts under Ordinance no. 56/2003 or Law no. 275/2006 (see paragraph 37 below).
22. On 16 February 2007, while in detention in Aiud Prison, the applicant applied to the Alba County Court for temporary release from prison on the grounds that his family needed his help with farming. He argued before the court that he would return to prison given that if he were released, he could not afford the medical care he had received free of charge in prison.
The court dismissed his application on 24 September 2007. The applicant did not appeal against the decision.
23. On 27 February 2007, the applicant informed the Court that he had problems with his dentition and alleged that the dental care he had received in prison was insufficient.
24. The applicant received dental care in Codlea Prison Hospital in 2007 and 2009. He had one tooth removed and another treated.
25. On 16 October 2008 a medical commission from Timişoara Prison (consisting of a dentist and an accountant) noted that the applicant had missing teeth and proposed a dental prosthesis plan, while nevertheless noting that “his dental problems were not significant”. The dentition model in the medical report shows that the applicant was missing four left and three right molars. The commission estimated the total cost of treatment at 749.92 Romanian lei (RON), of which 300 RON were payable by the applicant. Their estimate was based on Order No. 522/236 of 27 March 2008 issued by the Minister of Public Health together with the President of the National Health Insurance Authority (Casa Naţională a Asigurărilor de Sănătate).
26. The commission noted, however, that the applicant had no money available in his account and that Timişoara Prison lacked the facilities necessary to treat the applicant.
27. In 2004 the applicant lodged a complaint before the Avrig District Court against C.C. and others, the heirs of V.C., seeking damages of 69,000,000 old Romanian lei (ROL), representing the value of goods and cattle that he claimed he had lent to V.C.
28. On 9 February 2005 the District Court dismissed the action as time-barred. That decision was upheld by the Sibiu County Court.
29. In 2004 the applicant lodged another complaint against the heirs of V.C., seeking to compel them to pay interest on an alleged loan of 40,000,000 ROL that he had made to V.C. His action was dismissed in a final decision of 15 June 2005 by the Sibiu County Court on the grounds that the applicant had not proved that the initial loan was ever made.
30. On 12 October 2006 the applicant lodged an action against the Săcălaz local authorities, seeking restitution of two calves and a 250-kg pig, which had allegedly been confiscated from him by the communist authorities in 1988. He claimed that in 1990 the local authorities had informed him that they had returned the animals to V.C.
31. On 15 November 2006 the Timişoara District Court found that the applicant had failed to adduce any proof of his allegations and dismissed the action. By a final decision of 21 November 2008 the Timiş County Court declared his appeal null and void as he had not paid the relevant court fees.
32. In a decision of 26 June 1976 the authorities declared the applicant unfit for work due to a pre-existing condition that had worsened during his military service.
33. On an unspecified date during his detention the applicant requested that an invalidity pension be paid to him.
34. At the request of the Sibiu County Pension Authority (“the Pension Authority”) on 15 March 2006 the applicant underwent an expert evaluation by the Sibiu Work Capability Assessment Authority to determine his capacity for work (Cabinetul de expertiză medicală şi recuperare a capacităţii de muncă). The evaluation report confirmed the applicant’s invalidity and set 9 March 2007 as the date for review of his situation.
35. The Pensions Authority asked the National Institute for Work Capability assessment (Institutul Naţional de Expertiză Medicală şi Recuperare a Capacităţii de Muncă – “the National Institute”) to express its opinion on the expert report issued in March 2006. The National Institute confirmed the previous assessment, but added that the 1976 decision did not entitle the applicant to an invalidity pension. It therefore suggested that the Pensions Authority evaluate the applicant’s situation in the light of the Pensions Act (Law No. 19/2000).
36. On 22 May 2006 the Pensions Authority decided not to grant the applicant an invalidity pension, as he did not meet the requirements set forth in the Pensions Act. The decision was upheld by the Sibiu County Court on 19 September 2007 and by the Alba Iulia Court of Appeal in a final decision of 10 April 2008.
37. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 on the rights of prisoners (Ordinance no. 56/2003), and Law no. 275/2006 on the execution of sentences (Law no. 275/2006) are described in Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008). The situation as regards dental care in the Romanian prison system is described in V.D. v. Romania (no. 7078/02, §§ 73-79, 16 February 2010).


ITEMID: 001-100379
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DMITRACHKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1977 and lives in the town of Buzuluk in the Orenburg Region.
6. Late in the evening of 16 April 2001 the applicant was arrested at his home on suspicion of having committed theft and robbery. He was placed in the isolation wing of the Buzuluk police station.
7. According to the applicant, in response to his requests for legal aid, he was beaten up by police officers Z. and V. They pressurised him to confess to the above-mentioned crimes. The applicant attempted to commit suicide but, as it appears, was promptly provided with medical assistance. It does not appear that this incident had any adverse consequences on his health.
8. Following the arrest the applicant remained in detention.
9. The Government submitted that according to the information provided by the Supreme Court of Russia the applicant's first documented interview took place on 18 April 2001 in the presence of his lawyer, S.
10. The applicant complained about the ill-treatment to the police and to a local prosecutor's office.
11. It appears that the prosecutor's office did not take any steps in connection with the applicant's complaints, other than remitting the case to a police investigator, K., from the same police station.
12. On 19 April 2001 K. ordered the applicant's medical examination.
13. The examination was carried out on the same date. According to the expert's report, the applicant had a bruise of 3.5×5 cm on his back in the right lumbar region and the right temple area was sensitive on palpation. Noting that no harm to the applicant's health could be established, the expert concluded that the bruise could have been inflicted at the time and in the circumstances described by the applicant.
14. By a decision of 3 May 2001 a senior assistant to the Prosecutor of the Buzuluk Prosecutor's Office refused to institute criminal proceedings against police officers Z. and V. for lack of evidence of a crime.
15. The decision referred to the statements of Z. and V., who denied the allegations of ill-treatment. Investigator K. stated that he had ordered a medical examination in response to the applicant's complaint and noted that the applicant had not complained about the alleged ill-treatment to the prosecutor when the latter had authorised his detention on remand. Finally, having regard to the expert's report, the prosecutor concluded that he was unable to establish any ill-treatment on the part of the police officers and noted that the injury sustained by the applicant could have occurred “in other circumstances”.
16. The applicant submitted that he had learned about this decision “much later”.
17. The Government did not make any comments concerning the date of notification of this decision to the applicant.
18. On an unspecified date the applicant's criminal case concerning the charges of theft and robbery was transferred to the Buzuluk Town Court for examination.
19. During the court hearing of his criminal case on 9 July 2001 the applicant repeated his allegations of ill-treatment. The two co-accused in the applicant's case also alleged ill-treatment by the police officers. The prosecutor participating in the examination of the case moved to adjourn the proceedings in order to carry out an inquiry into their submissions.
20. By a decision of the same date the trial court entrusted the Buzuluk Prosecutor with the inquiry and adjourned the proceedings.
21. On 27 July 2001 the Senior Assistant to the Prosecutor of the Buzuluk Prosecutor's Office refused to institute criminal proceedings against the police officers, referring, among other things, to the oral evidence given by police officers V. and Z. and investigator K. as well as to the previous decision of 3 May 2001.
22. The applicant stated that he was not notified about the decision immediately.
23. The Government submitted that the decision had been read aloud during the court hearing of 7 August 2001.
24. The applicant complained about the decisions of the prosecutor's office to the Buzuluk Town Court, alleging that they were unfounded and that several witnesses of the ill-treatment had not been questioned, and requested an additional inquiry.
25. By a judgment of 23 October 2001 the court rejected his complaint. In particular, it stated that:
“... The plaintiff's submissions proved unconfirmed during the court hearing. According to the statements of the police officers V. and Z. obtained in course of the prosecutor's inquiry into the alleged ill-treatment, Dmitrachkov [the applicant] was detained on suspicion of robbery and theft, no physical or psychological pressure was exerted on him ... Dmitrachkov failed to complain to the prosecutor who ... authorised his arrest although he had the opportunity ...
... According to the plaintiff, upon his placement in the isolation ward, he was hit with his head against the walls. However, his co-accused Ch. did not confirm this allegation.
The expert's opinion of 19 April 2001 revealed an injury, [namely,] a bruise in the left lumbar region. No injuries to the head were established ... which refutes the [plaintiff's] allegations of ill-treatment following his arrest.
In these circumstances the court considers that the decisions [...] of [...] 3 May 2001 refusing to institute criminal proceedings against Z. and V. and [...] of 27 July 2002 [...] are lawful and that there are no reasons to quash them.”
26. The applicant appealed.
27. By a decision of 16 April 2002 the Orenburg Regional Court held that the trial court had examined the case under the rules of civil procedure whereas the complaints against the investigative measures ought to have been examined under the provisions of the criminal procedure. It quashed the first-instance judgment and terminated the proceedings without examining the substance of the applicant's complaints.
28. In response to the Court's request for copies of the investigation file in respect of the events of 16 April 2001, the Government submitted that the file had been destroyed due to the expiry of the time-limit for its storage. The Government referred to an Instruction dated 28 December 1998 issued by the Prosecutor General's office.
29. By a judgment of 4 December 2001 the Buzuluk Town Court convicted the applicant of robbery and theft and sentenced him to ten years of imprisonment and confiscation of his property. The applicant submits that he received a copy of the judgment on 27 March 2002. In the judgment, the trial court specifically rejected the applicant's allegations of ill-treatment as unfounded without contesting the existence of his injuries or providing any explanation for their origin. The trial court referred to the decision of 27 July 2001 without questioning the witnesses mentioned in that decision in court.
30. On 21 May 2002 the Orenburg Regional Court upheld the judgment on appeal.
31. Both courts referred to the conclusions of the prosecutor's inquiries into the alleged ill-treatment and rejected the applicant's submissions in this connection.
32. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years' imprisonment. Under Article 286 § 3 (a) and (c) abuse of an official position associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment.
33. Before 1 July 2002, criminal proceedings in Russia were governed by the 1960 Code of Criminal Procedure of the RSFSR (“the old CCP”). Under Article 113 of the old CCP, a refusal to open criminal proceedings could be appealed against to a prosecutor or a court. Under Article 220, a refusal by the prosecutor could be appealed against to a higher prosecutor.
VIOLATED_ARTICLES: 3


ITEMID: 001-102344
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KANEVSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Emil Reyngoldovich Kanevskiy, is a Russian national who was born in 1945 and lives in Novokuznetsk, in the Kemerovo Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 September 2002 the applicant brought a court action against a State enterprise “West-Siberian Railway” («Западно-Сибирская железная дорога»), his former employer. He sought reinstatement in his job, lost wages and non-pecuniary damages.
By a decision of 26 September 2002, the Kuybyshevskiy District Court of Novokuznetsk (“District Court”) refused to open the proceedings on the ground that it lacked jurisdiction. On 30 October 2002, on the applicant’s appeal, the Kemerovo Regional Court (“Regional Court”) quashed that decision and remitted the case to the first-instance court.
On 27 November 2002 the District Court held a preparatory meeting. The first hearing on the merits was scheduled for 24 December 2002. Owing to the respondent’s failure to appear, it was adjourned until 14 January 2003.
On 14 January 2003 the District Court, on the motion by the respondent, decided to transfer the applicant’s case to another district court of Novokuznetsk. On 21 February 2003 the Regional Court quashed that decision and remitted the case to the first-instance court.
Of the six hearings held between 21 February and 2 July 2003, two were adjourned owing to the respondent’s failure to appear, two at the request of the respondent and two at the request of the applicant.
On 2 July 2003 the District Court dismissed the applicant’s action. On 12 September 2003, on the applicant’s appeal, the Regional Court quashed the judgment and remitted the case to the District Court for fresh examination.
Having received the case file, on 8 October 2003 the District Court held a preparatory meeting. In the period between 8 October 2003 and 9 June 2004 the court scheduled ten hearings on the merits. Three of them were adjourned on the ground of the respondent’s failure to appear, one owing to the default by the applicant’s representative and one because of the applicant’s illness. Three hearings were adjourned at the request of the respondent who asked the court to summon and examine additional witnesses and to obtain certain documentary evidence. Two hearings were adjourned pending receipt of the documents.
On 6 May 2004 another presiding judge took charge of the case.
By a decision of 9 June 2004, the District Court discontinued the proceedings on the grounds that the respondent company had been liquidated. The applicant appealed. On 30 July 2004 the Regional Court quashed the decision of 9 June 2004 and remitted the case to the District Court for fresh examination.
The preparatory hearing scheduled for 15 September 2004 was adjourned because neither party appeared in court. The two followed hearings did not take place owing to the default by the respondent’s representative.
By a decision of 4 November 2004, the District Court ordered that a joint-stock company “Russian railways” (ОАО «Российские железные дороги») entered in the proceedings as a co-respondent.
By a decision of 22 November 2004, the court transferred the dispute to a court in another town where the head office of the new party was situated. The applicant appealed. On 14 January 2005 the Regional Court quashed the decision of 22 November 2004 and remitted the case to the District Court. The appeal court also indicated that the proceedings before the first-instance court had exceeded a reasonable time.
The first hearing after the District Court received the case file was scheduled for 24 February 2005. It was, however, postponed until the following day because of the presiding judge’s mission to another town. Of the six subsequent hearings, one was adjourned owing to the parties’ failure to appear in court, three at the request of the respondent to summon additional witnesses, one because of the illness of the respondent’s lawyer and one at the request of the applicant’s lawyer.
On 14 July 2005 the District Court delivered a judgment by which it ordered that the applicant be reinstated in his job and the “Russian railways” pay him lost wages, non-pecuniary damages and legal costs and expenses.
On 25 July 2005 the respondent brought its appeal. Three months later, on 25 October 2005, the appeal was withdrawn. The proceedings were discontinued and the judgment of 14 July 2005 became final.


ITEMID: 001-58824
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CAMP AND BOURIMI v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 14+8;No violation of Art. 8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 8. On 24 September 1992 Ms Camp's partner, Mr Abbie Bourimi, died without having recognised (erkenning) the child she was carrying at that time and without leaving a will. Ms Camp and Mr A. Bourimi had been living together in a house owned by the latter. They had been intending to marry, but a wedding scheduled for April 1992 had been postponed due to the death of Ms Camp's mother.
9. The parents of Mr A. Bourimi believed neither that the child Ms Camp was carrying had been fathered by their son nor that their son had intended to marry Ms Camp. Consequently, they considered themselves and their other children to be their son's heirs. On 22 October 1992, contrary to the wishes of Ms Camp, Mr A. Bourimi's parents, together with five other relatives, moved into the house which had belonged to their son. Thereupon, Ms Camp moved out of the house.
10. On 2 November 1992 Ms Camp requested the President of the Roermond Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to grant an injunction ordering the parents to vacate the house pending the winding up of Mr A. Bourimi's estate. Furthermore, on 3 November 1992, she requested the Queen to grant letters of legitimation (brieven van wettiging – see paragraphs 16-18 below) in respect of the child she was carrying.
11. The President of the Regional Court refused to grant the injunction on 19 November 1992 but this decision was quashed by the 'sHertogenbosch Court of Appeal (Gerechtshof) on 2 June 1993. The Court of Appeal considered that Ms Camp had adduced sufficient evidence to corroborate her claim that she had been living with Mr A. Bourimi in his house for a considerable time, that they had intended to get married and that Mr A. Bourimi was Sofian's father. In view of the fact that it therefore seemed likely that letters of legitimation would be granted and Sofian would thus emerge as Mr A. Bourimi's sole heir, the Court of Appeal found that it was Ms Camp's right and in her interest in her capacity of mother and guardian to be given possession of the house. The Court of Appeal accordingly ordered the parents of Mr A. Bourimi to vacate the house. The parents subsequently filed an appeal on points of law (beroep in cassatie) to the Supreme Court (Hoge Raad).
12. Meanwhile, on 20 November 1992, Sofian Bourimi was born. Since he was illegitimate and had not been recognised by his father, he was initially given the family name of his mother. On 21 October 1994 the Supreme Court issued advice in favour of the granting of letters of legitimation. Such letters were granted on 4 November 1994 and Sofian took on the family name of his father.
13. On 24 February 1995 the Supreme Court quashed the decision of the Court of Appeal of 2 June 1993. It considered that the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death and that therefore Sofian could not inherit from him. As regards Ms Camp's argument that this outcome was contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the Supreme Court held that the establishment of the consequences of an incompatibility of Netherlands law with these provisions of the Convention went beyond the task of the judiciary.
14. The Supreme Court referred the case back to the Court of Appeal, which was to examine whether other circumstances existed justifying a judicial order to the effect that Mr A. Bourimi's parents vacate the house – such as the fact that Ms Camp had been living in the house for a considerable time. On 4 June 1996 the Court of Appeal struck the case out in view of the fact that the parties to the proceedings had reached an agreement to the effect that Ms Camp and Sofian would vacate the house.
15. The estate of Mr A. Bourimi was distributed amongst the heirs (that is, his parents and siblings) on 9 February 2000 by a notary (notaris).
16. Legally recognised family ties (familierechtelijke betrekkingen) between a father, his relatives and a child exist where a child is born to married parents or if it is born within 307 days following the dissolution of the marriage (Article 1:197 of the Civil Code (Burgerlijk Wetboek – “CC”)). An illegitimate child will have a legally recognised family relationship with its father (who does not have to be the biological father) and the latter's relatives if it has been recognised (erkenning) by the father, either before or after its birth (Article 1:222 CC). At the relevant time, moreover, a legally recognised family relationship would also be created by the granting of letters of legitimation (Article 1:215 CC).
17. Paragraph 2 of Article 1:215 provided as follows:
“The request for letters of legitimation may also be made if the man, who, aware of her pregnancy, and intending to marry the mother, died before the birth of the child without having recognised it.”
18. It appears from the explanatory memorandum (Memorie van Toelichting) to this provision that the intention to marry the mother, which, if carried out, would have resulted in the birth of a legitimate child, replaced the recognition required by Article 1:222 CC for the establishment of a legally recognised family relationship.
A request for letters of legitimation could be made by the child's mother or, after her death, by the child itself. No time-limit was attached to a request for such letters. According to Article 1:219 § 1 CC, legitimation pursuant to Article 1:215 took effect from the day on which letters of legitimation were granted.
19. On 1 April 1998 the Civil Code was amended. The option of letters of legitimation was replaced by a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap, Article 1:207 CC). A declaration of paternity has retroactive force from the time of the child's birth but it does not affect adversely any rights acquired in good faith by third parties.
20. According to Article 4:879 § 1 CC only those persons who have a legally recognised family relationship with a person who has died intestate may inherit from this person. Furthermore, the heir must have existed at the time of death. (Article 4:883 CC). However, according to Article 1:2 CC, a child who has been conceived but has not yet been born is considered as having already been born when his or her interests so require.
21. According to the rules of intestacy, if a deceased does not leave any children with whom he has a legally recognised family relationship or a spouse, his parents and siblings will inherit from him (Article 4:901 CC). If there are such children or a spouse, the parents and siblings are excluded from the inheritance (Articles 4:899 and 4:899a CC).
22. The applicants applied to the Commission on 18 August 1995. They complained that, contrary to Article 8 of the Convention and Article 14 taken in conjunction with Article 8, the letters of legitimation did not have retroactive force from the time of Mr A. Bourimi's death.
23. On 8 September 1997 the Commission declared the application admissible.
24. In its report of 23 April 1999 (former Article 31 of the Convention) [Note by the Registry. The report is obtainable from the Registry.], the Commission expressed the unanimous opinion that there had been no violation of Article 8 either in respect of the family life between the two applicants or in respect of Ms Camp's family life with the relatives of Mr A. Bourimi, that it was not necessary to examine under Article 8 of the Convention the complaint relating to Sofian's family life with the relatives of his father, and that there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of Sofian.
VIOLATED_ARTICLES: 14
8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-96671
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TSONYO TSONEV v. BULGARIA (No. 2)
IMPORTANCE: 3
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance;Legal assistance of his own choosing;Required by interests of justice);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Preparation of defence;Article 6 - Right to a fair trial);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Free legal assistance;Insufficient means;Required by interests of justice;Article 6 - Right to a fair trial);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1977 and lives in Gabrovo. At the relevant time he was unemployed.
6. At about 9 p.m. on 11 November 1999 the applicant and Mr D.M., after having consumed alcohol, went to the flat of Mr G.I., apparently with the intention of recovering certain items which Mr D.M.’s former girlfriend had left there. A violent incident ensued and the police, who were called by neighbours, arrested the applicant and Mr D.M.
7. On 12 November 1999 a police officer drew up a report describing the applicant’s conduct on the previous evening. On the basis of this report, in a decision of 19 November 1999 the mayor of Gabrovo found the applicant guilty of breaching section 2(1) of municipal by-law no. 3 (see paragraph 25 below) and fined him 50 Bulgarian levs (BGN). The mayor explained that, while drunk, the applicant had broken down the door of Mr G.I.’s flat and had beaten him up. These actions had constituted a breach of public order and an expression of manifest disregard towards society, contrary to the above-mentioned provision. The decision, which specified that it was subject to judicial review within seven days after being served on the offender, was not served on the applicant, whose address was unknown. It was put in the file and considered as constructively served under section 58(2) of the 1969 Administrative Offences and Penalties Act (see paragraph 28 below). The applicant did not learn about it within the timelimit for seeking judicial review and the decision became final.
8. Some time later the prosecution authorities charged the applicant with inflicting “intermediate” bodily harm on Mr G.I., contrary to Article 129 § 1 of the 1968 Criminal Code, and breaking into his home, contrary to Article 170 § 2 of that Code (see paragraphs 18 and 19 below). They alleged that he had acted in concert with Mr D.M.
9. The applicant’s trial took place before the Gabrovo District Court between 9.30 a.m. and 12.40 p.m. on 1 December 2000 and between 1.30 p.m. and 4 p.m. on 14 November 2001. He was represented by two lawyers. It is unclear whether they were retained by him or appointed by the court. The court heard the two coaccused, three experts and five witnesses. It admitted numerous documents in evidence and heard the parties’ closing argument.
10. In a judgment of 14 November 2001 the Gabrovo District Court found the applicant guilty of inflicting “intermediate” bodily harm on Mr G.I. It found him not guilty of committing this offence in concert with others and not guilty of entering another’s home by force. It sentenced him to eighteen months’ imprisonment. The court found that Mr D.M. alone had broken down the door of Mr G.I.’s flat and that the applicant had entered the flat after him. The court further found that in the ensuing scuffle the applicant had broken two of Mr G.I.’s teeth, which amounted to “intermediate” bodily harm, but at the same time held that in committing this act the applicant had not acted in concert with Mr D.M., because the latter had not hit Mr G.I. in the head.
11. The applicant appealed to the Gabrovo Regional Court. He drafted the appeal himself. Mr D.M. did not appeal.
12. The Gabrovo Regional Court held a hearing on the morning of 2 April 2002. The counsel previously appointed by the court for the applicant did not show up and new counsel was thus appointed. The applicant said that the new counsel was acquainted with his arguments and the case, and that he agreed to be defended by her. The record of the hearing says that the newly appointed counsel took half an hour to acquaint herself with the file; according to the applicant, she only had ten minutes to do so, because, as shown by the record, the hearing started at 10 a.m. and finished at 10.10 a.m.
13. In her closing speech, counsel for the applicant argued that it was not certain whether he had hit Mr G.I. in the head. Even if that had been so, he had done so in selfdefence, because Mr G.I. had tried to shoot him with a gas pistol and he had panicked. It was furthermore unclear whether the blows allegedly administered by the applicant could result in the type of injuries sustained by Mr G.I. The experts’ statements on this point had not been properly recorded. Counsel later filed a memorial previously drawn up by the applicant.
14. In a judgment of 9 April 2002 the Gabrovo Regional Court upheld the lower court’s judgment. It found that it had assessed the evidence properly and had established the facts correctly, and went on to say that there was no indication that the applicant had acted in selfdefence.
15. On 23 April 2002 the applicant appealed on points of law, again drafting the appeal himself. On 26 August 2002 he asked the Supreme Court of Cassation to appoint counsel for him. He relied on Article 70 § 1 (7) of the 1974 Code of Criminal Procedure (see paragraph 20 below) and asserted that he had no legal knowledge and could not afford to retain counsel, whereas the interests of justice required that he be legally represented because he risked imprisonment.
16. In a letter of 9 September 2002 the president of the Second Criminal Division of the Supreme Court of Cassation advised the applicant that it was not possible to appoint counsel for him, as the prerequisites of Article 70 of the 1974 Code of Criminal Procedure were not met.
17. The Supreme Court of Cassation held a hearing on 14 October 2002. The applicant acted pro se. The prosecution argued that his appeal should be dismissed. On 22 October 2002 the Supreme Court of Cassation, which had the power to quash, vary or reverse the lower court’s judgment, decided to uphold it. It found that the lower court had properly established the facts, had fully examined all relevant issues, and had not breached the rules of procedure.
18. Article 129 § 1 of the 1968 Criminal Code makes it an offence to inflict “intermediate” bodily harm on another. Article 129 § 2 defines “intermediate” bodily harm as, among other things, the knocking out of teeth whose loss makes chewing or speaking more difficult.
19. By Article 170 § 1 of the Code, it is an offence to enter another person’s home using force, threats, dexterity, abuse of power, or special technical devices. Article 170 § 2 provides that the offence is aggravated if it has been committed at night or by an armed individual.
20. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed situations in which the appointment of counsel for the accused was mandatory: (i) the accused was a minor; (ii) the accused suffered from a disability preventing him or her from defending himself or herself in person; (iii) the accused was charged with an offence punishable by more than ten years’ imprisonment; (iv) the accused did not speak Bulgarian; (v) another accused who had diverging interests had already retained counsel; or (vi) the case was heard in the absence of the accused. On 1 January 2000 a new point (7) was added. It was part of a comprehensive overhaul of the Code intended to bring it in line with the Convention, based on Article 6 § 3 (c), and it provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required.
21. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure. The text of its Article 94 § 1 (9) matches exactly that of Article 70 § 1 (7) of the 1974 Code. Article 94 § 1 (7) provides that the participation of counsel in the proceedings before the Supreme Court of Cassation is compulsory. Where the participation of counsel is compulsory, the competent authority has to appoint counsel when not retained by the accused (Article 94 §§ 2 and 3).
22. Article 269 § 2 (3) of the 1974 Code provided that a hearing had to be adjourned if counsel for the accused failed to appear and if such counsel could not be replaced without causing prejudice to the accused’s defence.
23. In 1997 the text was amended, providing that an adjournment was only necessary where the case could not proceed without the accused being legally represented. In a decision of 14 April 1998 (решение № 9 от 14 април 1998 г. по к. д. № 6 от 1998 г. обн., ДВ, бр. 45 от 21 април 1998 г.) the Constitutional Court declared the amendment unconstitutional, finding that it made it possible to hold hearings in which the accused would not be legally represented and that this would certainly prejudice the defence. It was true that certain limitations on the rights of the defence were permissible under the Constitution in the interest of the proper administration of justice. However, this particular limitation was disproportionate, because it made it harder to ascertain the truth and put the accused at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms.
24. Article 21 § 1 (6) of the 1974 Code (whose text has been copied almost verbatim into Article 24 § 1 (6) of the 2005 Code) provided that criminal proceedings could not be opened or had to be discontinued if in respect of the same person and in respect of the same offence there existed a final judgment or decision. The former Supreme Court – in a binding interpretative decision –, and later the Supreme Court of Cassation, have construed this provision as not barring the opening of criminal proceedings in respect of persons who have already been punished in administrative proceedings (тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/1960 г., ОСНК на ВС; реш. № 348 от 29 май 1998 г. по н. д. № 180/1998 г., ВКС, II н. о.; и реш. № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о.).
25. Bylaw no. 3 for safeguarding public order on the territory of the municipality of Gabrovo (Наредба № 3 за опазване на обществения ред на територията на габровската община, приета с решение № 50, протокол № 10 от 26 март 1992 г.) was adopted by the Gabrovo Municipal Council on 26 March 1992 pursuant to section 22(1) of the 1991 Local SelfGovernment and Local Administration Act, which, as worded at the material time, empowered municipal councils to make bylaws concerning local issues. Section 2(1) of the bylaw provided that citizens were prohibited from committing acts which breached public order and expressed manifest disregard towards society. Section 27(1) provided that violations of the by-law were punishable with a fine of up to BGN 50. Under section 30 of the bylaw, the procedure for establishing such violations and their punishment was governed by the 1969 Administrative Offences and Penalties Act.
26. Section 2(3) of the 1969 Administrative Offences and Penalties Act provides that municipal councils may, in issuing bylaws, determine the elements of administrative offences and provide for penalties among those envisaged by the Local SelfGovernment and Local Administration Act of 1991. Under section 22(2) of that Act, as in force at the material time, the breach of a municipal by-law was punishable with a fine of up to 500 Bulgarian levs.
27. The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. It defines them, in section 6, as acts or omissions which run counter to the established order, have been committed wilfully and are punishable with administrative penalties. Section 11 provides that, absent specific provisions in the Act, the 1968 Criminal Code governs all questions concerning mens rea, capacity, exculpating circumstances, complicity, preparation and attempts.
28. Under section 58(1), a decision imposing an administrative penalty must be served on the offender. If, however, the offender cannot be found at the address he specified and his new address is unknown, a note to this effect is made on the decision and it is considered as served on the date of the note (section 58(2)). The decision may be challenged by way of judicial review (section 59(1)) within seven days after it has been served (section 59(2)). Under section 64, decisions imposing administrative penalties become final when (i) they are not subject to review, (ii) have not been challenged within the statutory timelimit, or (iii) have been challenged but have been upheld or varied by the competent court.
VIOLATED_ARTICLES: 6
P7
VIOLATED_PARAGRAPHS: 6-1
6-3
P7-4
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-b
6-3-c