ITEMID: 001-110683
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SOLOVYEVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. The applicants, who are brothers, were born in 1977 and 1957 respectively and at present reside in the town of Yekaterinburg in the Sverdlovsk Region.
7. In May 1993 the bodies of three persons were found in a street in Yekaterinburg.
8. On 29 March 1994 the second applicant was charged with two counts of manslaughter and unlawful possession of weapons. Ten days later, a deputy prosecutor of the Ordzhonikidzevskiy District of Yekaterinburg discontinued the criminal proceedings against the second applicant because he was found to have acted in self-defence and the use of force had been justified.
9. On 14 November 1997 the second applicant was charged with having severely injured a Mr M.
10. In February 1998 the Sverdlovsk Regional Prosecutor reopened the criminal proceedings against the second applicant on the charges of manslaughter and arms possession and remitted the case for further investigation. On 17 November 1998 the investigator at the Ordzhonikidzevskiy District prosecutor’s office dropped the armspossession charge.
11. In December 1998 the two sets of criminal proceedings were joined and the second applicant was issued with the bill of indictment. He was charged with one count of manslaughter, causing severe bodily injuries, and unlawful restriction of liberty.
12. On 15 December 1998 the first applicant was also charged with unlawful restriction of liberty.
13. On 1 February 1999 the prosecution concluded the investigation and transmitted the case for an examination on the merits to the Ordzhonikidzevskiy District Court of Yekaterinburg. On 26 March 1999 the case was assigned to a judge of that court. The applicants were committed for trial and on 1 December 1999 the court listed the first hearing for 17 October 2000.
14. At the hearing of 17 October 2000 the applicants were initially represented by lawyer R. The chamber consisted of two lay assessors and presiding judge B. The applicants challenged the presiding judge, alleging bias. The lay assessors examined and rejected the challenge as unfounded.
15. Thereafter the applicants informed the court that they had dismissed lawyer R. and appointed lawyer Ch. as a replacement. Lawyer Ch. was not present at the hearing.
16. After lawyer R. had been dismissed, the prosecutor made a request for the applicants to be detained pending trial, which the Ordzhonikidzevskiy District Court examined and accepted with the following reasoning:
“[the applicants are] charged with murder, the intentional infliction of severe injuries ... and unlawful confinement ...
Before the hearing they unsuccessfully sought the removal of the presiding judge and influenced participants in the proceedings, including the victim, Mr M., who asked the court not to examine the case because the defendants had not committed any criminal offence against him. They also appealed against the decision by which the court hearing had been fixed.
[The applicants are] charged with serious and especially serious criminal offences ... When they were under a written undertaking not to leave the town, they attempted to obstruct the thorough and full examination of the case. The prosecutor has lodged a request in that connection; having regard to the above-mentioned considerations, the court finds it to be substantiated and authorises ... [the applicants’] placement in custody.”
17. The applicants were taken into custody on 17 October 2000. They appealed against the decision ordering their detention, arguing that their procedural rights had been breached as a result of the absence of their lawyer at the hearing. Among other things, they requested the court to secure their attendance during the appeal hearing.
18. The District Court listed the next hearing for 18 December 2000.
19. The decision of 17 October 2000 was upheld on appeal on 9 November 2000 by the Sverdlovsk Regional Court. The hearing took place with the participation of the prosecutor, the alleged victim and the applicant’s lawyer Ch. The applicants were detained in the remand prison and were not taken to the hearing. Their request for personal attendance remained unanswered.
20. At the hearing of 18 December 2000 the applicants and their lawyer requested the removal of the entire bench including the presiding judge. The District Court dismissed their requests and adjourned the proceedings until 1 March 2001 because the victim had arrived at the hearing in an inebriated state.
21. On 9 February 2001 the Sverdlovsk Regional Court, in the presence of the applicants’ lawyer, upheld that decision. The applicants were neither invited, nor present at the hearing.
22. On 1 March 2001 the presiding judge, in an interlocutory decision, extended the applicants’ detention and withdrew from the proceedings because he felt offended by the conduct of the applicant’s lawyer. No reasons or time-limit for the extension were given. The judge noted that the decision was not amenable to appeal.
23. According to the Government, the second applicant brought an appeal against that decision. Since it had been lodged too late and the applicant never asked for restoration of the time-limit, the appeal court never examined it.
24. The second applicant disagreed with the Government on that point. He submitted a copy of a letter from the Deputy President of the Sverdlovsk Regional Court dated 26 March 2001 informing the President of the Ordzhonikidzevskiy District Court that the second applicant had requested a copy of the decision of 1 March 2001 and the restoration of the time-limit for appeal.
25. According to the second applicant, he had appealed against the decision of 1 March 2001 once in receipt of a copy of it, and had complied with the time-limit for appeal.
26. On 17 April 2001 a new presiding judge listed a hearing for 7 June 2001 and extended the applicants’ detention, without citing any grounds or setting a time-limit.
27. The applicants alleged that they had not received that decision. Nonetheless, they appealed against it on 23 and 28 May 2001. In their appeals they disagreed with the decision to list a hearing for 7 June 2001 and argued that the case ought to be sent for an additional investigation to the prosecutor. The appeals did not contain any complaints concerning the applicants’ continued detention.
28. On 18 July 2001 the Sverdlovsk Regional Court upheld the decision, rejecting the applicants’ arguments concerning the decision to list a hearing for 7 June 2001. By this time the first applicant had already been released (see paragraph 31 below)
29. The Government submitted that the second applicant and his lawyer had not taken part in the hearing.
30. On 4 June 2001 the Ordzhonikidzevskiy District Court dismissed the applicants’ request for an additional investigation. The applicants’ appeal against that decision was dismissed by the Sverdlovsk Regional Court on 18 July 2001.
31. On 7 June 2001 the first applicant was released on an undertaking not to leave his place of residence.
32. On the same date the applicants asked the District Court to adjourn the proceedings because their lawyer was on holiday. The court acceded to the request, adjourned the proceedings and extended the second applicant’s detention on remand; no reasons or time-limit for the extension were given.
33. The second applicant appealed against the decision, claiming that it had not been given by a lawful tribunal.
34. On 20 July 2001 the Sverdlovsk Regional Court dismissed the appeal. The second applicant was not present at the appeal hearing.
35. On 3 September 2001 Ms S. was appointed to act as the applicants’ counsel.
36. At the hearing held on the following day the second applicant, assisted by Ms S., asked the District Court to release him against a written undertaking not to leave the town and to replace Ms S. with Mr R. and Ms G., representatives of a certain NGO. The Ordzhonikidzevskiy District Court dismissed his application for release on the grounds that he was charged with serious criminal offences and was pleading not guilty. The District Court held that “there were no grounds to change the preventive measure”. It refused to accept the appointment of Mr R. and Ms G. because they had not produced any written authority to act.
37. On 5 September 2001 the applicants again asked the court to appoint Mr R. and Ms G. The hearing was postponed to allow the applicants to find new lawyers.
38. According to the second applicant, on 11 September 2001 he submitted a statement of appeal against the decision of 4 September 2001 to the administration of the remand facility where he was being held. On 12 September 2001 he sent a letter by registered mail to the Sverdlovsk Regional Court.
39. In support of his allegations, the second applicant submitted a note (no. 68141-8367) issued by the prison administration of IZ-66/1 dated 28 October 2005 which confirmed that in September 2001 the second applicant had dispatched a complaint dated 7 September 2001 to the Sverdlovsk Regional Court. According to the second applicant, his appeal was left unexamined.
40. The Government submitted that the second applicant had never properly filed an appeal against the decision of 4 September 2001 and that the statement of appeal had only been received by the court after 17 December 2001 as an annex to another document. They conceded that the appeal had been left unexamined.
41. According to the Government, between 28 November 2001 and 27 May 2002 there were repeated delays in the criminal proceedings due to changes of lawyers, their failure to appear and sickness on the part of the parties.
42. At the hearing of 17 December 2001 the second applicant successfully requested an adjournment because his lawyer had failed to appear. The hearing was postponed until the following day.
43. On 19 December 2001 the District Court, at the second applicant’s request, adjourned the proceedings until 24 December 2001 to enable the applicant and his new lawyer to study the case file together.
44. The subsequent hearings scheduled for 24 and 25 December 2001 were postponed because the lawyer for the first applicant had failed to appear. The proceedings were stayed until 1 April 2002. The applicants claimed that on 31 December 2001 they had appealed against the decisions of 24 and 25 December 2001, but that their appeals had not been examined.
45. At the hearing of 1 April 2002 the second applicant’s lawyer asked the Ordzhonikidzevskiy District Court to remit the case for further investigation and release the applicant on bail or on a written undertaking not to leave the town. The District Court refused the requests, on the ground that the applicant was charged with a serious criminal offence and was pleading not guilty.
46. On 4 April 2002 the second applicant appealed against the decision of 1 April 2002, but the appeal was never examined.
47. The Government submitted that on 26 July 2002 the Ordzhonikidzevskiy District Court had extended the time-limit for lodging an appeal against the decision of 1 April 2002. According to them, there was no evidence in the case file that such an appeal was subsequently lodged.
48. On 27 May 2002 the Ordzhonikidzevskiy District Court gave interlocutory decisions whereby it dismissed the applicants’ request for the bench to stand down, remitted the case for further investigation and extended the second applicant’s detention on remand. As regards the grounds for the extension, the District Court noted that the second applicant was charged with a serious criminal offence and that he was pleading not guilty and had threatened the victim.
49. By the same decision the court also charged the first applicant for the services of a legal-aid lawyer whom he had allegedly never accepted as his counsel.
50. On 17 July 2002 the Sverdlovsk Regional Court returned the case file to the District Court for the correction of certain procedural defects. The Regional Court also noted that in the course of the appeal hearing the applicants’ lawyer had complained that on 4 April 2002 he had lodged an appeal against the decision of the District Court of 1 April 2002. The lawyer had provided the Regional Court with a copy of his statement of appeal bearing the stamp of the District Court and showing that it had received the statement on 4 April 2002. The Regional Court instructed the District Court to investigate whether that statement had been lodged in accordance with the requirements established by law.
51. On 21 August 2002 the Sverdlovsk Regional Court upheld the decisions of 27 May 2002 concerning the request for the bench to stand down and the extension of the applicant’s detention. However, it did not accept the District Court’s view that the case should be returned for further investigation, but instructed it to examine the merits of the charges. The applicants’ lawyer was not summoned to the hearing.
52. On 1 July 2002 a new Code of Criminal Procedure became effective.
53. On the same day the Ordzhonikidzevskiy District Court extended the applicant’s detention until 1 October 2002, holding that the second applicant was charged with a serious criminal offence and that he was pleading not guilty and had threatened the victim. The second applicant and his lawyer had not been summoned to the hearing. The representative of the prosecution authorities did not attend.
54. The second applicant appealed against the decision of 1 July 2002, also alleging that he had only received a copy of that decision on 4 July 2002. The applicant provided the Court with a copy of his statement of appeal. The document bore the stamp of the District Court indicating that the appeal had been lodged on 12 July 2002.
55. On 21 August 2002 the Sverdlovsk Regional Court refused to examine the second applicant’s appeal against the decision of 1 July 2002 and remitted the matter to the District Court. The Regional Court held as follows:
“In a decision [of 1 July 2002] [the second applicant’s] detention on remand was extended until 1 October 2002.
[T]he second applicant] lodged several appeals against that decision; [these] were lodged outside the time-limit established by the law. From the case file it cannot be established when [the second applicant] learned about the decision. Moreover, his lawyer, Mr Kh., ... learned about that decision only while taking part in the hearing and has expressed his wish to appeal against it ...
In view of the foregoing, [the court] decides to stay the appeal proceedings, establish the date when [the second applicant] was issued with the decision [of 1 July 2002], include that notification in the case file, invite him to apply for extension of the time-limit for lodging an appeal against that decision ..., accept an appeal from Mr Kh., and subsequently fix an appeal hearing.”
56. Two days later the Regional Court received an application from the second applicant’s lawyer seeking an extension of the time-limit for lodging an appeal against the decision of 1 July 2002. According to the Government, there was no indication in the case file that the request was examined.
57. On 1 October 2002 the District Court extended the second applicant’s detention for three months, that is, until 1 January 2003. The court cited the same grounds for the extension as those in the detention orders of 27 May and 1 July 2002. Neither the second applicant nor his lawyer was present at the hearing.
58. On 13 November 2002 the Sverdlovsk Regional Court quashed the decision of 1 October 2002 and remitted the matter for fresh examination to the District Court. The Regional Court reasoned that, in breach of the rules of criminal procedure, the District Court had not ensured the presence of the second applicant and his lawyer at the hearing of 1 October 2002. It held that the second applicant’s detention “should remain unchanged” in the meantime, because it had not established any ground to release him. The second applicant was not taken to the appeal hearing, even though he had sought leave to appear. His lawyer attended that hearing.
59. On 20 November 2002 the Ordzhonikidzevskiy District Court listed a hearing for 17 December 2002 and extended the second applicant’s detention, without citing any grounds or setting a time-limit. The second applicant and his lawyer were not summoned to the hearing.
60. On 7 March 2003 the Sverdlovsk Regional Court dismissed the second applicant’s appeal against the decision of 20 November 2002 because no procedural or substantive violations had been established.
61. On 15 December 2002 the District Court re-examined the question of the second applicant’s detention (which it had previously examined on 1 October 2002) and retrospectively extended his detention for three months, until 1 January 2003. It held that the second applicant was charged with serious criminal offences and that, if released, he could pervert the course of justice. A new lawyer, Mr Ts., and the second applicant attended the hearing.
62. The second applicant and Mr Kh., his other lawyer, appealed against that decision. The second applicant also sought leave to appear before the appeal court.
63. According to the Government, the District Court fixed six trial hearings between 17 and 24 December 2002. They were adjourned because the second applicant’s lawyer failed to appear.
64. On 8 January 2003 the Sverdlovsk Regional Court examined the grounds of the second applicant’s appeal against the decision of 15 December 2002 and upheld the decision. According to the second applicant, neither he nor his lawyer was summoned to the appeal hearing. According to the Government, the second applicant’s lawyer was given notice of the appeal hearing but failed to appear or to notify the Regional Court of the reasons for his absence. The Government provided the Court with a copy of the notice addressed to the prosecutor and to the second applicant’s lawyer. The notice did not bear the signature of any court official.
65. On 15 December 2002 the Ordzhonikidzevskiy District Court ordered that the second applicant should pay 258 Roubles (RUB) (less than 10 euros (EUR)) in legal fees. It appears that the second applicant did not appeal against that order.
66. On 25 December 2002 the District Court dismissed requests by the applicants and their co-defendants for the removal of the prosecutor, the presiding judge and one of the applicants’ lawyers, Mr S. The applicants alleged that they had not received that decision and, therefore, could not appeal against it.
67. On 25 December 2002 the Ordzhonikidzevskiy District Court extended the second applicant’s detention to 1 April 2003. It held that the second applicant was charged with serious criminal offences, the victims and witnesses had not yet been questioned, and that, therefore, the detention should be extended. The second applicant and his lawyer Mr Kh. attended the hearing.
68. From 13 January to 7 February 2003 the District Court fixed five hearings which were adjourned owing to the absence of the second applicant’s lawyer. On 18 February 2003, at the second applicant’s request, he was assigned new counsel. The proceedings were stayed until 13 March 2003 to allow the new lawyer time to study the case file.
69. The hearings of 13 and 14 March 2003 never took place because the second applicant was ill.
70. On 7 March 2003 the Sverdlovsk Regional Court rejected appeals by the second applicant and his lawyer against the extension order of 25 December 2002 because they had been lodged outside the time-limit. It asked the District Court to determine whether the time-limit could be extended. According to the second applicant, the District Court did not take any action on the matter. The Government did not comment on this.
71. On 26 March 2003 the Ordzhonikidzevskiy District Court extended the second applicant’s detention to 1 July 2003. The court noted that he had no criminal record, that he had a permanent place of residence and work, that he was the breadwinner of a family with two minor children and that he suffered from several illnesses. On the other hand, he was charged with serious criminal offences, victims and witnesses had not yet been heard, and the case had been pending for a long time, owing mostly to the second applicant’s conduct. The second applicant, if released, might therefore obstruct the proceedings.
72. According to the second applicant, on 3 April 2003 he and his lawyer lodged an appeal against that decision. The appeal was never examined.
73. According to the Government, no appeal was ever lodged.
74. The hearing on the merits was postponed again until 3 April 2003, and then on three further occasions until 8, 9 and 28 April 2003.
75. On 25 June 2003 the applicants sought the removal of the entire bench and the prosecutor. The court dismissed these requests.
76. On 26 June 2003 the Ordzhonikidzevskiy District Court discontinued the criminal proceedings against the first applicant in full as time-barred, and ruled out certain evidence as inadmissible. In the same decision the trial court discontinued the criminal proceedings against the second applicant in respect of the manslaughter charges because the statutory limitation period had expired, and extended his detention to 1 October 2003. The court noted that the second applicant was charged with serious criminal offences and that the trial was pending.
77. The applicants and their lawyer appealed against the decision of 26 June 2003 but subsequently withdrew their appeals.
78. On 10 July 2003 the Ordzhonikidzevskiy District Court discontinued the criminal proceedings against the second applicant in respect of the charges of unlawful confinement because the conduct in question could not be classed as a criminal offence.
79. On the same day the District Court found the second applicant guilty of causing bodily injuries and sentenced him to one year’s imprisonment. He was released on a written undertaking not to leave the town pending the appeal proceedings.
80. On 15 July and 12 August 2003 the second applicant lodged appeals against the conviction. On an unspecified date his lawyer appealed against the judgment of 10 July 2003.
81. On 24 February 2004 the second applicant and his lawyer withdrew their appeals.
82. On 3 March 2004 the Sverdlovsk Regional Court accepted the withdrawal and discontinued the appeal proceedings. On the same day the applicant’s written undertaking not to leave the town was cancelled.
83. The second applicant submitted that between 17 October 2000 and 10 July 2003 he had been kept in a cell measuring twenty square metres. The number of inmates at times reached thirty and since the number of beds was insufficient the inmates had to take turns to sleep. The cell also had no proper ventilation.
84. The Government responded by producing a certificate (no. 68/I1-5780) issued by the head of prison IZ-66/1 in Yekaterinburg dated 12 July 2006. The certificate confirmed that the second applicant had been detained in that prison on two occasions: between 18 October 2000 and 10 April 2003 and between 18 April and 10 July 2003. During the period from 10 to 18 April 2003 the applicant had been held in correctional facility FGU IK-2 of the Sverdlovk Region.
85. The certificate stated that the second applicant had been detained in the following cells: no. 112 (measuring sixty-nine square metres and containing eleven beds), no. 201 (measuring fifty-one square metres and containing twelve beds), no. 222 (measuring twenty square metres and containing four beds), no. 311 (measuring thirty-one square metres and containing seven beds), and no. 537 (measuring thirty-eight square metres and having nine beds).
86. According to the certificate, all the cells had glazed windows, adequate sleeping arrangements, ventilation and were regularly disinfected. The inmates, including the second applicant, never made any complaints about the conditions of their detention.
87. The Government were unable to provide specific figures concerning the number of inmates in that prison for the year 2000 because the relevant logs had been destroyed after expiry of the time-limit for storage. As to the years 2001-2003, they provided the following data concerning the number of inmates in the cells in question:
88. According to the Government, the second applicant had a shower on a weekly basis for fifteen minutes. The temperature in the cells was no more that twenty degrees in summer and no less than eighteen degrees in winter. All cells had a toilet, separated from the rest of the cell by a partition, and a sink.
89. The second applicant submitted that all the cells in which he was detained had been heavily overcrowded and that the Government’s description of the sleeping arrangements and partitioned toilets was false.
90. He submitted a witness statement dated 31 October 2006 by S. K., an inmate in cell no. 201, which confirmed that between 20 January 2003 and 20 June 2003 the cell had contained 35 to 40 inmates.
91. The second applicant alleged that on 12 April 2001 the prison authorities had refused to certify the authority forms for his lawyer to represent him before the Court, citing its incompetence to perform the requested actions. The case file contains an authority form dated 10 April 2001 signed by the second applicant and an authority form dated 22 April 2001 signed by the first applicant.
92. On 18 December 2000, 1 March and 4 September 2001 the second applicant was conveyed to the court room and back to the remand centre. According to him, the prison vehicle had no heating and he was not provided with any warm clothing. In addition, he had no opportunity to use toilet facilities for three hours while in transit and was given no meals during the whole day at the court.
93. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, “the old CCrP”). On 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
94. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should be held in custody or released pending the trial hearings (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP), and rule on any application by the defendant for release (Article 223 of the old CCrP).
95. At any time during the court proceedings the court may order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges on the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
96. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP).
97. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for further investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court having jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing; or (3) to fix a trial date (Article 227). In the latter case, the trial proceedings must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
98. There is no time-limit for the duration of the proceedings as a whole.
99. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days after it was lodged. In exceptional circumstances or complex cases, or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible.
The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after it is lodged (Article 374).
100. Rule 42 provided that all inmates, whether suspects or defendants, had to be given, among other things: a sleeping place; bedding consisting of one mattress, one pillow and one blanket; bed linen consisting of two sheets and a pillowcase; a towel; crockery and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).
101. Rule 44 stated that cells in pre-trial detention centres must be equipped with, among other things, a table and benches with enough seating space for the number of inmates, sanitation facilities, tap water, day lamps and nighttime lighting.
102. Rule 46 provided that prisoners were to receive food three times a day, with warm meals provided in accordance with the norms laid down by the Government of Russia.
103. Under Rule 47, inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh bed linen after they had taken a shower.
104. Rule 143 provided that an inmate could receive visits from his lawyer, family members or other persons, subject to written permission from an investigator or an investigative body, the number of visits being limited to two per month.
105. Order no. 7 of the Federal Service for the Execution of Sentences of 31 January 2005 deals with the implementation of the “Pre-trial detention centres 2006” programme.
106. The programme is aimed at improving the functioning of pre-trial detention centres so as to ensure their compliance with the requirements of Russian legislation. It expressly acknowledges the issue of overcrowding in pre-trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem.
107. The programme mentions pre-trial detention centre IZ-66/1 in the town of Yekaterinburg as being amongst the ones affected. In particular, the programme states that on 1 July 2004 the detention centre had a capacity of 2,255 inmates but in fact accommodated 3,262 detainees, in other words, 44.6% more than the permitted number.
108. The relevant extracts from the General Reports of the European Committee for the prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps signiﬁcantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.
47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...
48. Speciﬁc mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...
50. The CPT would add that it is particularly concerned when it ﬁnds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.
51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates ﬁtted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...”
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-4
6-1


ITEMID: 001-58127
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF BRUALLA GÓMEZ DE LA TORRE v. SPAIN
IMPORTANCE: 3
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
JUDGES: C. Russo;Pieter Van Dijk;R. Pekkanen
TEXT: 6. Mrs Victoria Brualla Gómez de la Torre was born in 1962 and lives in Madrid. At the material time, she practised as a lawyer (procurador) in premises owned by an insurance company and to the tenancy of which she considered that she had succeeded on the death of her father.
7. At some point in 1990 the insurance company brought an action in the Madrid Court of First Instance for termination of the lease, arguing that the applicant could not succeed to her father’s rights under it. On 18 April 1991 the insurance company’s action was dismissed. It appealed.
8. On 7 February 1992 the Madrid Audiencia provincial reversed the impugned decision, holding that the applicant could not succeed to her father’s rights under the lease.
9. On 3 March 1992 the applicant gave notice to the Audiencia provincial of her intention to appeal to the Supreme Court. On 26 March 1992 the Audiencia provincial formally noted that notice of appeal had been given (“se tiene por preparado el recurso”) and on 7 April it summoned the parties to appear before the First Division of the Supreme Court to enter the appeal within the forty-day time-limit laid down by Article 1704 of the Code of Civil Procedure (see paragraph 18 below).
10. In the meantime Law no. 10/92 of 30 April 1992 (“Law no. 10/92”), which made urgent changes to various court procedures, had come into force on 6 May 1992 (the day after its publication in the Official Gazette). It amended certain provisions of the Code of Civil Procedure, in particular those governing the conditions of admissibility of appeals to the Supreme Court in proceedings concerning leases of urban property (see paragraph 20 below).
11. On 12 May 1992 the First Division of the Supreme Court delivered a decision in which it construed the transitional provisions of Law no. 10/92. With respect to appeals of which notice had been given to the courts below before the entry into force of that Law but which had not been entered with the Supreme Court, it held:
“In view of the silence of the [transitional] provision [no. 2] or its failure to deal with the question, the new procedure shall apply in full in the case referred to above, and that makes it necessary to refer to Article 6 of the royal decree of 3 February 1881 promulgating the Code of Civil Procedure, a provision which is of general application.”
12. On 22 May 1992, within the forty-day period allowed by the Audiencia provincial (see paragraph 9 above), the applicant entered her appeal with the Supreme Court.
13. In its decision (auto) of 4 March 1993 the Supreme Court held at the outset that, pursuant to transitional provision no. 2 (see paragraph 17 below), Law no. 10/92 applied to cases such as the one before it in which an appeal had not been entered until after that Law had come into force, even if notice of intention to lodge the appeal had been given beforehand. It went on to find that the annual amount of rent payable under the lease in question was 839,256 pesetas, which was less than the minimum amount (one million pesetas) required under the new legislation for an appeal to lie to the Supreme Court. That being so, the applicant’s appeal had to be declared inadmissible in accordance with Article 1710 § 1 of the Code of Civil Procedure in conjunction with section 135 of the Leases of Urban Property Act, both as amended by Law no. 10/92 (see paragraphs 19 and 20 below).
14. On 1 April 1993 Mrs Brualla Gómez de la Torre lodged an amparo appeal with the Constitutional Court on the basis of Article 24 § 1 of the Constitution (see paragraph 16 below). On 19 July, at the request of the applicant, the Constitutional Court ordered a stay of execution of the Audiencia provincial’s judgment.
15. Referring in particular to its own case-law on the Supreme Court’s interpretation of transitional provision no. 2 of Law no. 10/92 (see paragraph 11 above), the Constitutional Court, declining to adopt the opinion of Crown Counsel’s Office, dismissed the applicant’s amparo appeal on 4 July 1994. It reiterated that the interpretation of transitional provisions was a matter for the ordinary courts and held that the criteria relied on by the Supreme Court in the impugned decision for declaring the appeal on points of law inadmissible were both reasoned and reasonable. That court’s construction of the provisions of the new legislation was neither arbitrary nor ill-founded. The fact that in its decision it had relied on a provision that had come into force after notice of appeal had been given but before the appeal had been entered with the Supreme Court was not decisive as no constitutional provision prohibited amending the appeals procedure so long as the right to a fair hearing was protected.
16. Article 24 § 1 of the Constitution provides:
“Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights.”
17. Transitional provision no. 2 of Law no. 10/92 of 30 April 1992, which amended the Code of Civil Procedure, provides:
“No ordinary appeal or appeal on points of law shall lie against a judicial decision in a civil matter delivered after this Law comes into force unless the decision satisfies the conditions laid down in this Law for that purpose.
With regard to pending appeals on points of law whose admissibility has not yet been determined, the Civil Division of the Supreme Court ... may declare an appeal inadmissible for the reasons set out in Article 1710 of the Code of Civil Procedure, as amended by this Law. In that connection, both the grounds of appeal and the limits referred to in rule 4 of sub-paragraph 1 of that Article shall be governed by the legislation in force at the time of the entering (interposición) of the appeal ...”
18. Before Law no. 10/92 came into force, the relevant provisions governing notice of appeal to the Supreme Court (preparación del recurso) read as follows:
“Notice of appeal shall be given in writing to the judicial authority which delivered the impugned decision within ten days from the day after the decision was served. The notice of appeal shall contain a statement [by the appellant] of his intention to appeal to the Supreme Court, a brief summary of the conditions that have to be satisfied and a request that the appeal be acknowledged as having been made in time and in the prescribed form, that the original case file, with the appeal file where appropriate, be sent to the First Division of the Supreme Court and that the parties be summoned to appear.
If no notice of intention to appeal has been given within the ten-day period, the judgment or decision shall become final.”
“Notice of intention to appeal shall be given by the lawyers (procurador and abogado) representing the appellant ...”
“If notice of intention to appeal has been given in accordance with the preceding two provisions and concerns a decision against which an appeal lies, the Division of the Audiencia shall acknowledge that notice of intention to appeal has been given (tendrá por preparado [el recurso]) and within five days shall send the original case file and the appeal file to the First Division of the Supreme Court.
At the same time the parties shall be summoned to appear before the First Division of the Supreme Court within not more than forty days. However, only the appellant shall be required to appear in order to enter the appeal on points of law.
...”
“A party which has given notice of intention to appeal shall enter the appeal with the First Division of the Supreme Court within forty days from the date on which [the parties] were summoned [to appear].
If the appeal is not entered within that time, the judgment or decision shall become final.”
19. Article 1710 § 1 governs the entering of appeals on points of law. As amended by Law no. 10/92, it is worded as follows:
“1. After the case file has been forwarded by Crown Counsel’s Office, it shall be sent to the reporting judge, who shall consider it and submit it to the Division for it to decide on how to deal with it in accordance with the following rules:
...
(2) The Division shall ... declare an appeal inadmissible where, notwithstanding that notice of appeal has been given, the Division finds that Articles 1697 and 1707 have not been complied with, or where the provisions relied on have no relevance to the matters at issue in the appeal, or where rectification of a defect has been ordered but the case file shows that it has not been carried out.
...
(4) An appeal shall be declared inadmissible ... where the amount in issue has not been calculated in accordance with the applicable rules or where the Division holds that the amount is less than the amounts mentioned in Article 1687 § 1.”
20. As amended by Law no. 10/92, section 135 of the Leases of Urban Property Act provides:
“No appeal shall lie against judgments delivered by the Audiencia provincial sitting as an appellate court except where they concern disputes over leases of commercial property for which the agreed rent exceeds one million pesetas, in which case an appeal on points of law may be made on the grounds and in accordance with the procedures laid down in the Code of Civil Procedure.”
Before Law no. 10/92 was enacted the relevant minimum sum was five hundred thousand pesetas.
21. Article 6 of the royal decree of 3 February 1881 promulgating the Code of Civil Procedure provides:
“For appeals on points of law entered (interpuestos) before 1 April next, the procedure laid down by the legislation currently in force shall apply; for [appeals entered] after that date the procedure laid down by the new legislation shall apply, even if notice of appeal was given before that date.”
22. In a judgment (no. 374/1993) of 13 December 1993, which concerned a case similar to the instant one, the Constitutional Court laid down the principles governing the application ratione temporis of Law no. 10/92 of 30 April 1992. It stated, in particular, that the Supreme Court’s interpretation of transitional provision no. 2, though justified on the facts, should not be considered the only construction possible. It also explained that the term “interposición” used in transitional provision no. 2 referred to the entering of an appeal on points of law with the Supreme Court and not the giving of notice of appeal to the Audiencia provincial. Consequently, the system prior to the amendment introduced by Law no. 10/92 applied to giving notice of appeal and the new system to entering an appeal. The Constitutional Court also referred to its settled case-law to the effect that the Constitution did not afford parties to proceedings any guarantee that the appeals system established by law would not be modified, so long as the parties’ right to a “fair hearing” was not infringed and decisions declaring appeals inadmissible were not unjustified or ill-founded. Lastly, it pointed out with regard to transitional provisions that, in accordance with Article 117.3 of the Constitution, it was for the ordinary courts alone to determine the applicable rule. In conclusion, the Constitutional Court dismissed the amparo appeal.
23. Earlier, in a decision of 20 June 1986 concerning amparo appeal no. 121/1985, the Constitutional Court had considered the issue of the applicability ratione temporis of the second transitional provision of Law no. 34/1984 of 6 August 1984. That provision also amended the Code of Civil Procedure but, unlike Law no. 10/92, provided: “After the proceedings to which they refer have ended, appeals to the Supreme Court which have been entered (interpuestos) shall be conducted in accordance with the amendments made by this Law.” In that case the appellants had given notice of appeal in accordance with the provisions of legislation previously in force and had then entered the appeal in accordance with the provisions of the new legislation, the substantive requirements of which were, however, no different from those of the earlier legislation. The Constitutional Court held that while the word “interponer” appeared to refer to the formal entering of the appeal, the reference to the ending of the proceedings suggested, however, that the legislature’s intention had not been to alter the rules applicable to appeals of which notice had been given but which had yet to be entered. The Constitutional Court held that the Supreme Court’s interpretation of that transitional provision could not be regarded as unfounded, still less as unreasonable, and that the decision as to which legislation governed the entering of the appeal – in that case the legislation previously in force – had not been deficient constitutionally. The Constitutional Court accordingly allowed the amparo appeal, holding that the appellants had been the victims of excessive formalism.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101568
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF SAKHNOVSKIY v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (victim);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens
TEXT: 10. The applicant was born in 1979. He is currently serving his sentence in the Novosibirsk Region.
11. On 30 April 2001 the applicant was arrested on suspicion of having murdered his father and uncle. The applicant made a written request to be provided with a legal-aid lawyer. On the same day an expert examination of fingerprints and a forensic examination were ordered and on 3 May 2001 the applicant was remanded in custody.
12. On 4 May 2001 legal-aid counsel, Ms P., was appointed to assist the applicant, and he was charged with aggravated murder on 10 May 2001.
13. From May to September 2001 a number of expert examinations were carried out. Subsequently the applicant received copies of orders for such examinations. He signed each of them confirming their receipt and indicating that he had no comments or requests.
14. On 30 September 2001 the detention order was lifted and replaced with an undertaking not to leave his place of residence.
15. In October 2001 the applicant's former cellmate in the detention facility, Mr Zh., testified that the applicant had told him in detail how he had murdered his father and another man.
16. On an unknown date the applicant's friend, Mr R., gave a witness statement alleging that the applicant had asked him to murder his father and that when R. refused the applicant seemingly intended to do it himself.
17. On 5 November 2001 the applicant was again remanded in custody.
18. On 20 December 2001 the Novosibirskiy Regional Court examined the criminal charges against the applicant. The applicant pleaded not guilty. The court examined seventeen witnesses including Zh. and R., and found the applicant guilty of the murder of two persons, sentencing him to eighteen years' imprisonment. In its judgment the court referred to witness statements, forensic reports and extensive material evidence.
19. The applicant and his lawyer appealed, alleging that Zh. and R. had given their statements under pressure from the police and claiming that the investigation had been vitiated by numerous violations of the applicant's defence rights. They also complained that they had received the expert examination orders belatedly.
20. On 12 May and 29 July 2002 the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because Ms P. was unable to attend the hearing, as she was already engaged in another trial.
21. On an unknown date the applicant was informed that his participation in the appeal hearing would be ensured by video link. On 26 and 30 July 2002 he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing.
22. On 16 October 2002 the Supreme Court of the Russian Federation ordered the Moscow IZ-77/3 detention centre to ensure the applicant's participation in the appeal hearing, which was to take place on 31 October 2002, by video link.
23. On 31 October 2002 the Supreme Court of the Russian Federation examined the applicant's appeal. The applicant participated in the proceedings by video link. No defence counsel attended the hearing. The court dismissed the applicant's appeal, having found no proof that the testimony of Zh. and R. was false. As regards the alleged breach of his defence rights, the court found this to be unsubstantiated.
24. In the following months the applicant filed several supervisory review complaints. In letters of 24 April and 19 November 2003 the Novosibirsk Prosecutor's Office and the General Prosecutor's Office informed the applicant that they refused to entertain his complaints. The Novosibirsk Prosecutor's Office noted, in particular, that the applicant's right to take part in the appeal proceedings had been fully respected. On 2 July 2003 Judge R. of the Supreme Court refused to open supervisory review proceedings on the applicant's complaint. That decision was confirmed by the President of the Supreme Court on 5 December 2003. On 4 February 2004 another supervisory-review complaint by the applicant was returned without examination, with reference to the earlier decisions on that matter.
25. On 26 March 2007 the Court decided to communicate the application to the Russian Government. On 4 July 2007 the Presidium of the Supreme Court granted an application for supervisory review by the Deputy Prosecutor General and quashed the Supreme Court's appeal decision of 31 October 2002. The Presidium found that the applicant's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court.
26. The applicant requested to take part in the appeal hearing in person. On 10 August 2007 the Supreme Court, sitting as a bench of three judges, granted him leave to attend in person and ordered the applicant's temporary transfer from the prison in the Novosibirsk Region to a detention facility in Novosibirsk (over 3,000 km from Moscow), apparently to allow him to use the video link.
27. On 20 August 2007 the applicant made a new statement of appeal. He requested the Supreme Court to examine his appeal on the basis of this new statement alone and also requested leave to attend the appeal hearing in person rather than by video link.
28. On 29 November 2007 the Supreme Court, sitting in Moscow, examined the case. First, it considered the applicant's requests of 20 August 2007. In a separate decision on procedure it found that there were no grounds to accept the applicant's new statement of appeal and decided to examine the case on the basis of the statement by the applicant's former counsel, Ms P., from 2002. It also rejected the applicant's request to attend in person, finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions, and that this form of participation would be no less effective than if he was personally present in the courtroom. The Supreme Court then introduced the applicant to Ms A., his new legal-aid counsel who was present in the Supreme Court's courtroom and then allowed them fifteen minutes of confidential communication by video link before the start of the hearing. All persons, both in the courtroom and in the detention facility, left the rooms.
29. The applicant rejected the assistance of Ms A. on the grounds that he needed to meet his counsel in person. The Supreme Court, having noted that the applicant did not rely on any divergence with Ms A. in his defence, did not request her replacement by another legal-aid lawyer, did not accept the Supreme Court's proposal to retain private counsel of his choosing and, taking into account the quashing of the previous appeal decision on the grounds of a lack of legal assistance, rejected the applicant's objection to the counsel's assistance. Accordingly, Ms A. represented the applicant in the appeal hearing.
30. On the same day the Supreme Court examined the merits of the case. It upheld the judgment of the Novosibirsk Regional Court of 20 December 2001, making one correction to the text and excluding one piece of evidence. The substantive findings and the applicant's sentence remained unchanged.
31. Article 51 of the Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel. Article 52 of the Code provides that the accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment.
32. Article 373 of the Code provides that the appellate court (суд кассационной инстанции) examines appeals (кассационные жалобы) with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, it may directly examine evidence, including additional material submitted by parties.
33. Article 402 of the Code (“Appeal against judgments, decisions and rulings which have come into force”) stipulates as follows:
“1. Defendants who have been convicted or acquitted, ... and the public prosecutor shall be entitled to request review of court judgments ... which have come into force in accordance with the procedure set out in the present Chapter.
2. The public prosecutor's request shall be termed a supervisory-review application (представление). Other parties' requests shall be termed supervisory-review complaints (жалоба).”
34. Article 406 of the Code (“Examination of supervisory-review complaints or applications”) stipulates as follows:
“1. A supervisory-review complaint or application shall be examined by a supervisory-review court within 30 days of being lodged.
2. The judge who examines the supervisory-review complaint or application may, where necessary, obtain ... any criminal case file ...
3. After examining the supervisory-review complaint or application, the judge shall decide as follows: either
(i) to dismiss the supervisory-review complaint or application; or,
(ii) to institute supervisory-review proceedings and to pass the supervisory-review complaint or application for consideration to the supervisory-review court ...
4. The President of the [competent] court may decline to accept the judge's decision to dismiss the supervisory-review complaint or application. In this case he shall set aside this decision and give a decision according to paragraph 3 (ii) [above].”
35. Article 412 of the Code (“Lodging of new supervisory-review complaints or applications”) stipulates as follows:
“1. It is forbidden to lodge new supervisory-review complaints or applications with a court which has already dismissed such complaints or applications.
2. Where an earlier judgment, decision or ruling has been quashed on appeal or under the supervisory-review procedure, it is possible to lodge a supervisory-review complaint or application against it in accordance with the rules of the present Chapter, irrespective of the reasons why the original judgment, decision or ruling was quashed.”
Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows:
“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.
...
4. New circumstances are:
...
(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:
(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;
....”
36. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict's right to legal assistance in such proceedings may be restricted.”
37. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings.
38. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held inter alia that Article 51 of the Code of Criminal Procedure, which defined situations where participation of a defence lawyer in the criminal proceedings was mandatory, also applied to the proceedings before the court of appeal.
39. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the later document the Supreme Court emphasised that the accused could waive his right to a lawyer only in writing, and that the court was not bound by that waiver.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-91730
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PLAKHTEYEV AND PLAKHTEYEVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1958 and 1931 respectively and live in Beryozovka, the Odessa region. The first applicant is a farmer who specialises in arable crops. The second applicant is his mother, a pensioner.
6. On 24 January 2001 the first applicant was stopped by tax police officers when driving a lorry leased from his mother. On checking the lorry the officers discovered 500 kilos of wheat, 1,400 kilos of flour and 3,000 kilos of wheat middlings for which the applicant had no proper documents. The police officers drew up a report on an administrative offence and seized the lorry and the load pending adjudication of the case by the court.
7. On 26 January 2001 the Trostyanets District Court (the “District Court”) found that the first applicant had transported the property of a third person for sale without a relevant business permit and was therefore guilty of unlawful business activity (an administrative offence). The District Court fined the applicant 51 Ukrainian hryvnias (UAH) and ordered the confiscation of the flour and wheat middlings. It further held that the 500 kilos of wheat were not subject to forfeiture as they belonged to the first applicant.
8. According to the applicants, after the judgment of 26 January 2001 they applied on several occasions to the Trostyanets Town Tax Office (the “Tax Office”), requesting that the lorry and the wheat load, which were not covered by the confiscation order, be returned to them. Their requests were rejected however.
9. On an unspecified date the confiscated products were sold and the funds were transferred to the State budget.
10. On 19 June 2001 the President of the Vinnytsya Region Court (subsequently renamed as the Vinnytsya Regional Court of Appeal), following an extraordinary review, quashed the judgment of 26 January 2001, stating that the conviction of the first applicant and the imposed penalties had been unsubstantiated. He therefore closed the case.
11. On 15 August 2001 the Tax Office returned the lorry and the wheat load to the applicants. According to the applicants the wheat load had deteriorated significantly and the lorry was damaged when returned.
12. On 3 January 2002 the applicants lodged a claim with the Vinnytsya Region Court of Appeal against the District Court and the Tax Office seeking damages for the wrongful conviction; for the groundless seizure and lengthy detention of their property; and for the deterioration of their property when in charge of the Tax Office. They claimed in particular that the Tax Office unlawfully retained the lorry and the wheat load despite the fact that those objects were not covered by the confiscation order; and that the lorry and the wheat load had significantly deteriorated when returned.
13. On 20 January 2002 the Vinnytsya Regional Court of Appeal declared the claim inadmissible, stating, in particular:
“According to Article 62 of the Constitution, compensation for pecuniary and non-pecuniary damage caused in the course of the administration of justice can be paid by the State to a person who has been groundlessly sentenced provided that the judgment in a criminal case has been quashed as unfair.
However, even in such a case the damage is compensated by the State, and not by a court or a judge.
Therefore, the court (or judge) as a body (or individual) administering justice cannot be a defendant in civil litigation, as the law provides another mechanism for correcting mistakes and irregularities committed in the course of the administration of justice.”
The court did not give any reasons why the part of the applicants’ claim submitted against the Tax Office could not be considered by the court.
14. By a letter of 23 March 2002 the Deputy Chairman of the State Tax Administration confirmed to the first applicant that he could claim compensation for damage, allegedly inflicted by the Tax Office, by filing a relevant civil suit with a court.
15. On an unspecified date the State Tax Administration, having made an internal inquiry, established that the Tax Office had failed to take the necessary steps to return to the owners the lorry and the wheat load in time. It further concluded that disciplinary measures were needless since the relevant official had retired.
16. On 7 May 2002 the applicants lodged with the Supreme Court a cassation appeal against the decision of 20 January 2002, contending that the refusal to consider their claim against the District Court and the Tax Office had been unlawful.
17. On 21 August 2002, following their request of 5 August 2002, the Tax Office reimbursed to the applicants the value of the confiscated products.
18. On 15 November 2002 the Supreme Court rejected the applicants’ cassation appeal against the decision of 20 January 2002, finding that there had been no procedural irregularities. The applicants were not present at the hearing. By a letter of 10 December 2002 the Supreme Court informed the applicants of that decision.
19. Section 55 of the Constitution provides, inter alia, that everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers.
20. Section 56 of the Constitution provides that everyone has the right to receive compensation from the State or municipal authorities for pecuniary and non-pecuniary damage incurred as a result of the unlawful actions or omissions of State bodies, municipal authorities or their officials in the course of the exercise of their powers.
21. Section 62 of the Constitution concerns the presumption of innocence and provides, inter alia, that if the sentence in a criminal case is quashed as unfair the State must provide compensation for any pecuniary and non-pecuniary damage resulting from the groundless conviction.
22. Section 442 of the Code provided that compensation was to be paid for damage caused by the acts of State entities and public officials in the course of the exercise of their administrative powers in accordance with the general rules, unless the law provided otherwise.
23. Section 265 of the Code provided, inter alia, that objects and documents used to commit an administrative offence could be seized by the competent authorities pending adjudication of the administrative case. Depending on the outcome of the administrative proceedings the seized objects and documents were thereafter to be either confiscated, destroyed, or returned to the relevant persons.
24. Section 287 of the Code provided that a decision imposing an administrative penalty could be appealed, except for decisions given by the first-instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provided otherwise.
25. Section 3 of the Act provided, inter alia, that court judgments in administrative cases were to be enforced by the State Bailiffs’ Service as regards pecuniary penalties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58609
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF JORDAN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. In 1995 the applicant, born in 1971, was a soldier of the regular forces in the Grenadier Guards. On 3 March 1995 the Special Investigations Branch of the military police (“SIB”) began investigating charges against him in relation to the misuse of travel warrants. The applicant was due to be interviewed on 28 March 1995 and went missing from his unit. On 20 April 1995 he was arrested by the civilian police and returned to his unit. His commanding officer dealt with the charge summarily and sentenced him to, inter alia, 28 days’ imprisonment. The applicant served 23 days (after remission for good conduct in detention).
10. The applicant was therefore due for release on 27 May 1995 but his detention continued on the basis of the suspected offences that were being investigated by the SIB. On 1 and 2 June 1995 the applicant was interviewed by the SIB and he was advised by a civilian solicitor during those interviews. The applicant then instructed his current representative on 15 June 1995. On 16 June 1995 the applicant was brought before his commanding officer and a charge sheet recording one charge under the Theft Act 1968 relating to the making of fraudulent motor mileage claims was read to him.
11. On 29 August 1995 a further charge sheet was read to the applicant which included eight additional and similar charges (obtaining property by deception) and the applicant was remanded for trial by court-martial. On 15 September 1995 the applicant applied for legal aid under the army legal aid scheme, which was granted as from 1 November 1995.
12. In November 1995 the applicant commenced habeas corpus proceedings in the High Court requesting his release on the grounds, inter alia, that he had not been given a formal hearing at which he was informed of the case against him and was able to present his own case for release, and on the grounds of the delay in holding the court-martial. The army authorities admitted that due to an “administrative oversight” the applicant had not been charged until 16 June 1995. On 11 December 1995 the army authorities undertook to the Court to release the applicant from close to open arrest and he was so released on the same day. The form of order of the High Court recorded the pleadings before it and the Government’s undertaking to release the applicant, but included no other order except to award costs to the applicant. The applicant was released from open arrest in mid-1996 and was sent on leave.
13. On 12 February 1996 the applicant instituted further proceedings in the High Court for compensation from the Ministry of Defence in respect of his detention from 27 May to 11 December 1995. The applicant alleged unlawful detention, breach of a duty of care, false imprisonment and trespass to the person. The defence filed by the army authorities in those proceedings accepted that the applicant had not been charged until 16 June 1995, initially because the investigation of the charges had been impeded by his absence and, subsequently, due to an error associated with the replacement of the applicant’s commanding officer. The authorities therefore accepted that the applicant’s detention between 27 May and 16 June 1995 was unlawful. Various other admissions were made by the army authorities as regards the failure properly to complete certain delay reports, but it was denied that these latter omissions rendered the applicant’s subsequent detention unlawful. The applicant had also claimed, and the army authorities denied, that there had been a violation of the rules of natural justice and of Article 5 § 3 of the Convention.
14. The matter was settled on 21 October 1996, the applicant being paid a substantial sum of money and his costs.
15. Although a district court-martial was initially convened by order of 31 October 1995 to try the applicant, it was postponed on a number of occasions. In March 1997 the applicant was charged with further but similar offences and, on 27 November 1997, the army authorities directed that the applicant be tried by court-martial on the 27 outstanding charges against him. On 22 November 1999 the applicant was tried by general court-martial. He pleaded guilty to offences of obtaining property by deception to the value of £15,000 and was sentenced to 14 months’ imprisonment of which he was to serve 7 months. The reviewing authority later reduced this sentence to 3 months’ imprisonment and the applicant’s appeal to the Courts-Martial Appeal Court is pending.
16. At the relevant time the provisions governing the prosecution and pre-trial detention of accused members of the army were contained in the Army Act 1955 (“the 1955 Act”), in the Rules of Procedure (Army) 1972 (“the 1972 Rules”) and in the Queen's Regulations for the Army 1975 (“the Queen's Regulations”).
Subsequent to the relevant facts of the present case, the law has been amended by, inter alia, the Armed Forces Act 1996 (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 276, §§ 52-57) and by the Investigation and Summary Dealing (Army) Regulations 1997.
17. The legal provisions relevant to the present application are set out in detail in the judgment of the Court in the case of Hood v. the United Kingdom (judgment of 18 February 1999, to be published in the Official Reports of selected Judgments and Decisions). The main provisions are summarised below.
18. In general terms, the commanding officer of an accused retains numerous powers and duties in relation to the arrest and pre-trial detention of an accused and in respect of the investigation and subsequent prosecution of charges. If the accused is a soldier (as opposed to an officer), the commanding officer's powers are broader as regards the investigation and pursuit of charges against an accused.
19. Any allegation that a person subject to military law has committed an offence under the 1955 Act must be reported to that person's commanding officer. The latter may investigate the charge (section 76 of the 1955 Act) and may issue a warrant for the arrest of a person who is accused of certain charges.
20. Subsequently the commanding officer of an accused must, unless it is impracticable, within forty-eight hours of becoming aware that an accused is detained, have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the forty-eight hours, the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation (Rule 4 of the 1972 Rules).
21. Commanding officers are responsible for ensuring that in each case the need to keep an accused in detention, together with the form of that detention, is kept under constant review (paragraph 6.007 of the Queen’s Regulations). However, ultimate responsibility initially lies with the officer convening the court-martial and, as the pre-trial detention continues, with the convening officer’s superior officer and, finally, with the Commander in Chief of the accused (paragraphs 6.045 and 6.047).
If the detention of an accused is considered necessary, the category of detention (close arrest or open arrest) is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline. The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others, or is likely to suborn witnesses, where he has not surrendered but has been apprehended as an illegal absentee, or has habitually absented himself, and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (paragraph 6.005 of the Queen's Regulations).
22. The commanding officer is responsible for the compilation of the abstract of evidence during the investigation. The abstract consists of the evidence of each witness considered necessary to prove the charge. Once it is compiled, the accused is given a copy, he is cautioned as to the use that could be made of any evidence he may submit and statements submitted by the accused are attached to the abstract of evidence (Rule 10 of the 1972 Rules). The pamphlet entitled “Rights of a Soldier” describes the purpose of the extract of evidence as, inter alia, to “provide a brief for the prosecutor at trial” and to inform the accused of the evidence which will be given at trial.
23. The commanding officer can also decide how a charge will be proceeded with after investigation. The commanding officer can deal summarily with or dismiss certain charges and can stay the proceedings against an accused (sections 77 and 77A of the 1955 Act). He can also decide that the accused should be tried by court-martial and he must take the necessary steps in this respect (section 78(1) and (2) of the 1955 Act). The necessary steps include (Rule 13 of the 1972 Rules) sending to a higher authority a draft charge sheet signed by the commanding officer, the abstract of evidence, a statement of character together with the service record of the accused, and the commanding officer’s recommendation as to how the charge should be proceeded with (for example, by district or general court martial). It is the higher authority who takes the final decision as to whether a court-martial is to be convened, and it is the convening officer of that court-martial who finally decides on the charges to be retained against an accused, although the latter generally does so by countersigning the draft charge sheet submitted by the commanding officer.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5


ITEMID: 001-91360
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KRYSHCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1959 and lives in the town of Chervonograd, Lviv Region, Ukraine.
5. In 2003 the applicant instituted proceedings in the Chervonograd Town Court against the Lvivvugillya State Enterprise, seeking compensation for non-pecuniary damage caused by the failure of the defendant to provide the applicant with an apartment, to which he had been entitled according to an agreement between them.
6. On 10 November 2003 the court partly found for the applicant and ordered the defendant to pay the applicant 42,000 Ukrainian hryvnias in compensation.
7. That judgment became final and on 11 December 2003 the Chervonograd Town Bailiffs’ Service instituted enforcement proceedings.
8. On 30 December 2005 the enforcement proceedings were terminated in accordance with the 2005 Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”.
9. The judgment in the applicant’s favour remains unenforced.
10. The Law of 23 June 2005 “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises” (Закон України „Про заходи, спрямовані на забезпечення сталого функціонування підприємств паливно-енергетичного комплексу” від 23 червня 2005 року) introduced a new mechanism for payment and amortisation of companies’ debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company’s presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company. By the most recent amendments to the Law, the effect of the debt payment and amortisation program was extended until 1 January 2009.
11. The remainder of the relevant law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58259
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AÏT-MOUHOUB v. FRANCE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (as regards first complaint);Violation of Art. 6-1 (as regards second complaint);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. Mr Areski Aït-Mouhoub, a French national born in 1951, is currently in prison in Montpellier.
7. On 1 July 1992 the Indictment Division of the Nîmes Court of Appeal committed the applicant, together with his son and daughter, who had been minors at the material time, for trial at the Gard Youth Assize Court for aiding and abetting armed robbery, for aggravated theft and for handling stolen goods.
8. On 11 December 1992 the Assize Court sentenced him to twelve years’ imprisonment for aiding and abetting armed robbery and for aggravated handling and ordered that he should not be eligible for any form of release for seven years.
9. On 14 December 1992 the applicant lodged an appeal on points of law against his conviction.
10. On 28 December 1992 Mr Aït-Mouhoub lodged a criminal complaint, together with a civil-party application, against two gendarmes (Mr Maurin and Mr Seguin) who had taken part in the judicial investigation that had led to the applicant’s being found guilty and sentenced by the Youth Assize Court.
In it the applicant accused Mr Maurin of subornation of perjury, forgery of documents and uttering, malfeasance, abuse of office, extortion and aiding and abetting theft, and Mr Seguin of forgery of documents and uttering.
11. The complaint in question read as follows:
“I am lodging with you a complaint, together with a civil-party application, against Gendarmerie Staff Sergeant Jean-Paul Maurin, head of the Nîmes investigation section, in respect of the following judicial offences and exactions: subornation of perjury, forgery and uttering, bringing proceedings to challenge officially recorded documents as forgeries, forgery of documents and uttering, aiding and abetting theft, malfeasance, abuse of office and extortion.
I am lodging a complaint, together with a civil-party application, against Gendarme Seguin in respect of the following judicial offences and exactions: forgery of documents and uttering, forgery of a report, bogus interview, imitating the signature of a witness.
Naturally I hold all the evidence and testimony to support each of my accusations.
I am sending a copy of these complaints to Nîmes Legal Aid Office.”
12. The applicant applied for legal aid to pursue this complaint.
13. On 28 June 1993 the Legal Aid Office at the Nîmes tribunal de grande instance refused the application on the ground that although the applicant’s means had been assessed at nil, the application was inadmissible because the applicant’s appeal on points of law against the Youth Assize Court’s judgment of 11 December 1992 was still pending.
14. On 24 July 1993 Mr Aït-Mouhoub appealed to the Legal Aid Office against that decision. He confirmed his appeal in a letter of 1 October 1993.
15. In an order of 24 August 1993 the senior investigating judge of the tribunal de grande instance, noting that the applicant had not obtained legal aid, directed that he should pay into court 80,000 French francs (FRF) as security for costs in respect of the complaint against the two gendarmes. He set 28 September 1993 as the time-limit for paying the security, failing which the complaint would be inadmissible.
16. The applicant did not challenge the amount by appealing to the Indictment Division against the order.
17. On 9 September 1993 Mr Aït-Mouhoub wrote to the senior investigating judge to inform him that he had appealed against the decision not to grant him legal aid.
18. On 21 September 1993 the Court of Cassation dismissed the applicant’s appeal on points of law against the Gard Youth Assize Court’s judgment of 11 December 1992.
19. On 18 October 1993 the applicant, having heard nothing from the Legal Aid Office, renewed his application for legal aid. He pointed out that the ground of inadmissibility relied on in the refusal of 28 June 1993 had ceased to be valid as the Court of Cassation had given judgment in the meantime.
20. In an order of 29 December 1993 the senior investigating judge ruled that the applicant’s complaint was inadmissible on the following grounds:
“By Articles 88 and R. 236 of the Code of Criminal Procedure, a party who has not obtained legal aid is required to pay into court a sum to cover the costs of the proceedings where he has not joined existing proceedings brought by the public prosecutor, failing which his criminal complaint will be inadmissible.
As the civil party has not paid within the time allowed the sum specified in the aforementioned order and the public prosecutor does not consider it necessary to institute criminal proceedings,
I declare Mr Areski Aït-Mouhoub’s application to become a civil party to criminal proceedings inadmissible.”
The applicant did not appeal against that order.
21. On 15 March 1994 the Legal Aid Office dismissed Mr Aït-Mouhoub’s appeal against the refusal of 28 June 1993.
22. On 2 January 1993 the applicant lodged a second criminal complaint and civil-party application against two other persons (Mr Dumas, a prosecution witness at his trial, and Mr Eut, the brother-in-law of a gendarme). The complaint read as follows:
“I am lodging a complaint, together with a civil-party application, against the following individuals:
Georges Dumas of Quartier des Usines, Gagnières, in respect of incitement of a minor to immorality, selling military weapons and munitions to a minor, impeding apprehension or prosecution, perjury, and failure to obey a summons to appear as a witness at the Gard Assize Court. The presiding judge of the Assize Court publicly issued a warrant for him to be brought before the court. This person boasts that it was ‘bogus’, that he had immediately been told by a senior gendarme to be absent, that he was no longer at the address indicated, whereas he had never left home. I lodged a complaint a year ago, on which no action has been taken, thanks to a judicial intervention of which he likewise boasts.
I have at your disposal all the evidence in support of my accusations, which I will summarise for you in a pleading as soon as the judicial investigation has been opened.
Jacky Eut, living at Saint-Florent-sur-Auzonet.
Theft, blackmail, threatening behaviour.
This individual, who claims to be the brother-in-law of a gendarmerie sergeant against whom I have also lodged a criminal complaint in respect of malfeasance, forgery and uttering, on the basis of irrefutable evidence, paid a visit to my home, with a gendarme, at the time of my arrest and took away all the furniture from my bar and restaurant. Subsequently, he took away all the furniture belonging to my under-age daughter. Despite my complaints, I was warned to watch my step if I didn’t want to blow up … and my under-age daughter, who had recently tried to complain to this individual, was told:
‘You’d better not make any claims at all … your mother owes me much more, thanks to me and my brother-in-law, she didn’t go to prison, we managed to get her off the hook … so you be careful little girl … you might get done too.’
Naturally I hold all the evidence and testimony to support my accusations.
I am sending a copy of this complaint to Nîmes Legal Aid Office in order to apply for legal aid, since I am ruined.”
23. The applicant applied for legal aid to pursue this complaint also, but the Legal Aid Office took no decision on the application.
24. In an order of 24 August 1993 the senior investigating judge, noting that the applicant had not obtained legal aid, set the security payable in respect of the complaint against Mr Dumas and Mr Eut likewise at FRF 80,000, on the ground that “the evidence and … the existence of another complaint justify applying Articles 88-1 and 91 of the Code of Criminal Procedure [see paragraph 32 below]”. He set 28 September 1993 as the time-limit for paying the security, failing which the complaint would be inadmissible.
25. The applicant did not challenge the amount by appealing to the Indictment Division against the order.
26. On 9 September 1993 Mr Aït-Mouhoub wrote to the senior investigating judge to inform him that he had not yet had any reply concerning legal aid.
27. On 18 October 1993 the applicant, having still heard nothing from the Legal Aid Office, renewed his application.
28. In an order of 29 December 1993 the senior investigating judge ruled that the applicant’s complaint was inadmissible on the following grounds:
“By Articles 88 and R. 236 of the Code of Criminal Procedure, a party who has not obtained legal aid is required to pay into court a sum to cover the costs of the proceedings where he has not joined existing proceedings brought by the public prosecutor, failing which his criminal complaint will be inadmissible.
As the civil party has not paid within the time allowed the sum specified in the aforementioned order and the public prosecutor does not consider it necessary to institute criminal proceedings,
I declare Mr Areski Aït-Mouhoub’s application to become a civil party to criminal proceedings inadmissible.”
The applicant did not appeal against that order.
29. Section 2 of the Law of 10 July 1991 on legal aid provides:
“Natural persons whose means are insufficient to enable them to assert their rights in the courts may be granted legal aid. They may be aided in whole or in part.
…”
Section 7 of the same Law imposes a further condition on persons who are not civilly liable and have not been either charged with or convicted of a criminal offence and are not defendants in criminal proceedings or assisted witnesses: the action must not appear to be “manifestly inadmissible or unfounded” (see also section 22 of the Law).
30. Applications for legal aid are examined by boards called legal-aid offices, which consist of lawyers, representatives of the State and users (sections 12 et seq. of the same Law). These offices are attached to courts and determine applications relating to cases brought before those same courts.
Legal-aid offices may order any useful information to be provided, in particular on the financial position of persons making applications, and may also have any persons interviewed (section 21 of the aforementioned Law and Article 42 of the implementing decree of 19 December 1991).
31. In French law the victim of an offence may join criminal proceedings as a civil party either by applying to the investigating judge, the Indictment Division or the trial court, if proceedings are already under way, or by bringing proceedings by directly summoning the accused before the trial court or lodging a complaint and civil-party application with the investigating judge, if the public prosecutor has not instituted criminal proceedings.
32. The relevant provisions of the Code of Criminal Procedure (“CCP”) are worded as follows:
“Anyone who has personally suffered from damage directly caused by a criminal offence may bring civil-party proceedings to seek compensation for such damage.
Discontinuance of such proceedings can neither terminate nor stay the criminal proceedings, without prejudice to the cases provided for in paragraph 3 of Article 6 [CCP].”
“A judicial investigation shall be mandatory in cases of serious crime (crime)…”
“Anyone who claims to have suffered damage as a result of a serious crime (crime) or other serious offence (délit) may, by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the appropriate investigating judge.”
“The investigating judge shall record in an order the lodging of the complaint. According to the civil party’s means, he shall determine the amount of security for costs which that party must, if he has not obtained legal aid, deposit at the registry and the time-limit for doing so if the complaint is not to be declared inadmissible. He may exempt the civil party from paying security.”
“The security set pursuant to Article 88 shall guarantee payment of the civil fine which may be imposed pursuant to the first paragraph of Article 91.
The sum paid into court shall be returned where the proceedings based on that provision are time-barred or have resulted in a decision that has become final to the effect that the civil-party application was neither an abuse of process nor intended purely to gain time.”
“Where, after a judicial investigation begun on a criminal complaint and civil-party application, a decision has been taken that there is no case to answer, the public prosecutor may summon the civil party before the Criminal Court in which the case was investigated. If the complaint and civil-party application are held to have been an abuse of process or to have been intended purely to gain time, the court may impose a civil fine, the amount of which shall not exceed FRF 100,000…”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1