ITEMID: 001-90612
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SHAROMOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 5. The applicant was born in 1972 and lives in the town of Irkutsk.
6. On 22 December 1999 the Sverdlovskiy District Court of the Irkutsk Region convicted the applicant of theft and sentenced him to five years’ imprisonment. On 11 April 2000 the Irkutsk Regional Court upheld the judgment.
7. On 7 June 2001 the applicant asked the President of the Regional Court to apply for supervisory review of the above judgments on a number of legal grounds. After leave had been granted, on 2 July 2001 the Presidium of the Regional Court upheld the conviction but reduced the applicant’s sentence to four years and six months because of an error in the calculation of the term. The applicant was not brought to the hearing.
8. The applicant made further attempts to obtain a review of his conviction and sentence. Apparently in reply to one of those applications, by a letter of 18 November 2002 the Irkutsk Regional Prosecutor’s Office notified the applicant that they had applied for supervisory review of the judgments of 22 December 1999 and 11 April 2000. It appears that the scope of the application for review was limited to an argument that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in 1992 for another offence. The applicant received that letter on 22 November 2002.
9. It appears that on 6 December 2002 the applicant submitted his observations in relation to that request. However, in the meantime, on 2 December 2002 the Presidium of the Regional Court had already examined the supervisory review application and found that the 1992 conviction had been cancelled in 1997 and should not have been taken into consideration when the trial court decided whether there had been a repeated commission of a criminal offence (recidivism). It concluded that the applicant’s acts had constituted dangerous rather than “particularly” dangerous recidivism, and changed the type of the correctional facility in which the applicant was to serve his sentence. The Presidium upheld the judgments of 22 December 1999 and 7 June 2001 in the remaining part. The applicant was not brought to that hearing. On 30 December 2002 he was told that the review had taken place, but a copy of the decision was not given to him.
10. The applicant served his sentence in correctional colony no. UK-272/25 situated in the village of Vikhorevka in the Irkutsk Region.
11. According to the applicant, on 7 September 2001 the colony administration informed the detainees that a special-purpose squad would be brought to the colony “to discipline detainees”.
12. On 21 September 2001 five officers of the special-purpose squad arrived at the colony in order to “render practical assistance in carrying out searches and prophylactic measures”. On the same day the wardens and the officers of the squad searched the applicant’s cell. The applicant objected to the search and the officers intimidated him, beat him up and damaged his personal belongings. The applicant received no medical assistance and the colony doctor refused to record his injuries. The colony administration subsequently refused to dispatch his complaints to the prosecutor.
13. According to the Government, the Director of the Regional Department for Execution of Sentences of the Ministry of Justice ordered a series of searches in detention facilities with a view to seizing unauthorised items kept by detainees in their cells which could be used for an escape.
14. Searches were carried out in the applicant’s cell on 10 and 21 September 2001. According to a report dated 10 September 2001, the use of force was accounted for by the applicant’s insults to officers. A report drawn up on 21 September 2001 indicated that the applicant had uttered insults and threats of reprisals. The Government submitted copies of reports by two officers to their superior, stating that during the search on 21 September 2001 the applicant had uttered insults and threats of reprisals to the officers. Another officer stated that the applicant had objected to the search and had swung his hands; because of his refusal to stop after a warning, his hand had been held behind his back, he “had been held in a posture preventing resistance” and had been placed in a separate room pending the search in his cell. A report drawn up by the colony medical assistant indicated that no injuries had been detected on the applicant’s body.
15. Several detainees complained to the Bratsk Prosecutor’s Office, in charge of supervising penitentiary institutions, about the events of 10 and 21 September 2001. They alleged that they and certain other detainees, including the applicant, had been beaten up by the squad members, with the tacit agreement of the colony administration.
16. On 21 January 2002 the Bratsk Penitentiary Supervising Prosecutor’s Office refused to initiate criminal proceedings against the squad members. The assistant prosecutor indicated that the squad intervention had been duly authorised by the Regional Department for Execution of Sentences on 6 and 13 September 2001 (decrees nos. 385 and 398). The squad officers wore camouflage with their ID numbers and balaclava masks. On 10 September 2001 during the search of his cell the applicant had refused to comply with orders (to stay in the corridor against the wall), and had threatened the officers with reprisals, insulting them and pushing them away. Therefore, on an order from the colony chief officer the applicant was immobilised. During another cell search on 21 September 2001 the applicant behaved in the same way and also incited other detainees to riot. In order to put a stop to his actions he was immobilised. Special means and weapons were not used. The assistant prosecutor interrogated the complainants and other detainees, some of whom however had stated that special means or weapons had been used against detainees.
17. On 28 February 2002, on a complaint by the applicant, an official of the Irkutsk Regional Department for Execution of Sentences informed him as follows. On 21 September 2001 five officers of the special-purpose squad had arrived in the colony. The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically. Following the searches, the doctor visited the detainees to find out if they had sustained any injuries. The detainees did not make any complaints or requests.
18. Detainees and the premises where they live may be searched (Article 82 §§ 5 and 6).
19. Physical force, special means or weapons may be used against detainees if they offer resistance to the officers, persistently disobey lawful demands of the officers, engage in riotous conduct, take part in mass disorders, take hostages, attack individuals or commit other publicly dangerous acts, escape from the penitentiary institution or attempt to harm themselves or others (Article 86 § 1). The procedure for application of these security measures is determined in Russian legislation (Article 86 § 2).
20. When using physical force, special means or weapons, the penitentiary officers must:
(1) state their intention to use them and afford the detainee(s) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees;
(2) ensure the least possible harm to detainees and provide medical assistance;
(3) report every incident involving the use of physical force, special means or weapons to their immediate superiors (section 28).
21. Rubber truncheons may be used to
(1) stop assaults on officers, detainees or civilians;
(2) repress mass disorders or group violations of public order by detainees, as well as to apprehend (задержание) offenders who persistently disobey or resist the officers (section 30).
22. Under Article 377 § 3 of the 1960 Code of Criminal Procedure, in force at the material time, a prosecutor took part in a hearing before a supervisory review court. A convict and his or her counsel could be summoned if the court found it necessary. If summoned, they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing. By its ruling of 14 February 2000, the Constitutional Court declared Article 377 § 3 of the Code unconstitutional in so far as it allowed a supervisory-instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor, if the latter sought annulment of the final judgment on grounds unfavourable to that person. The Constitutional Court made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place. Failing that, the above persons would be unable to state their position to the court.
23. A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety (Article 380). It could uphold, amend or quash any of the earlier judgments, vary the sentence, discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court. It could not, however, increase the sentence or re-categorise the defendant’s actions as a more serious offence (ibid.).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108754
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MIHAI TOMA v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 6. The applicant was born in 1948 and lives in Târgu-Jiu.
7. On 2 December 1995 the applicant was stopped by police for drinkdriving. The police informed him on the spot that his right to drive on the public roads was suspended for ninety days. The driving licence was not physically removed from the applicant’s possession.
8. On 13 February 1996 the applicant was stopped by police while driving a car and was committed to trial for the offence of driving on public roads while his driving licence was suspended under Article 36 § 2 of Decree no. 328/1966 on driving on public roads (“Decree no. 328/1966”).
9. In a decision of 5 June 1997 the Târgu-Jiu District Court convicted the applicant of that offence and imposed on him a criminal fine of 80,000 Romanian lei (ROL) and ordered him to pay ROL 40,000 in costs. It also informed the applicant that if he did not comply with the payment order the fine could be converted into a prison sentence (Article 63 of the Criminal Code). The decision became final, as the parties did not appeal against it.
10. On 15 December 2004 the applicant went to Gorj Road police station to ask for his old driving licence to be replaced with the new model, in accordance with the new requirements in the matter. On this occasion, the police withdrew his driving licence and informed him that it would be annulled, as the applicant had been stopped for drink-driving in 1995.
11. On the same day the police informed the applicant that under Article 101 § 1 (b) of Emergency Ordinance no. 195/2002 his driving licence had been annulled with effect from 9 December 2004. His objection to the annulment was dismissed by Gorj County Police on 25 January 2005.
12. On 10 March 2005 the applicant appealed before the Gorj County Court, seeking the revocation of the annulment order.
13. In a decision of 15 April 2005 the County Court (Administrative Law Section) allowed the action for the following reasons:
“Indeed, in the judgment of 5 June 1997 of the Târgu-Jiu County Court ... the [applicant] was sentenced to pay a fine of ROL 80,000 ... and under Emergency Ordinance no. 195/2002, the driving licence stood to be annulled if the driver was convicted of a traffic offence ...
Under Article 126 (c) of the Code of Criminal Procedure, the enforcement of the criminal fine becomes statute-barred after three years; therefore the annulment of the driving licence, being a subsidiary penalty (pedeapsa accesorie), becomes statutebarred at the same time as the main penalty.
The time-limits are counted from the date when the events occurred, therefore ... the penalty is at present statute-barred.”
14. The Gorj County Police appealed, and in a final decision of 12 July 2005 the Craiova Court of Appeal (Administrative Law Section) reversed the judgment and dismissed the applicant’s initial action, giving the following grounds:
“The annulment of the driving licence is not a subsidiary penalty, as the firstinstance court wrongly considered; it represents an administrative measure with distinct rules applicable to it that can only be imposed by the police.
Decree no. 328/1966 and Emergency Ordinance no. 195/2002 do not provide a timelimit for the application of this measure; moreover, in the applicant’s case the measure is applied automatically, as he was criminally convicted for a traffic offence.”
15. Article 36 § 2 of Decree no. 328/1966 on driving on public roads criminalises the offence of driving on public roads with a suspended driving licence. The same Act provides that a driving licence may be annulled if its owner has been convicted of a criminal offence under the regulations on driving on public roads (Article 42 § 2). The annulment is decided by the Head of the County Police once the criminal decision is final (Articles 42 § 3 and 43).
16. Decree no. 328/1966 was abolished by Emergency Ordinance no. 195/2002, which entered into force on 1 February 2003, and which in its Article 101 § 1 (b) made the annulment of the driving licence automatic. This Act was amended on several occasions, but the relevant provision was in place on the date when the final decision was rendered in the case at hand.
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-114777
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF DIRDIZOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);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 5-3 - Reasonableness of pre-trial detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1971 and lived until his arrest in the town of Nurlat, in the Tatarstan Republic.
6. On 7 October 2008 criminal proceedings were instituted against the applicant on suspicion of attempted murder. The prosecution’s case was that the applicant had shot Mr M. five times in the course of a property dispute. Two days later an investigator of the Chistopol District Investigative Department issued a wanted notice in respect of the applicant as he had allegedly left his place of permanent residence and gone on the run.
7. On 28 December 2008 the applicant was arrested and was served with a bill of indictment. The charge of attempted murder was joined with another criminal charge against the applicant, of aggravated theft. On the same day a police investigator asked the Chistopol Town Court (Tatarstan Republic) to remand him in custody. The investigator argued that the applicant had been charged with a particularly serious criminal offence, that he could reoffend or influence witnesses, and that he was likely to abscond, given that he had already gone on the run once and a wanted notice had been issued.
8. On 29 December 2008 the Town Court granted the request, having adopted the investigator’s reasoning. In two lines the Town Court stated that the gravity of the charges and the likelihood that the applicant would abscond or reoffend, as well as interfere with witnesses, warranted his placement in custody. The applicant’s arguments that he had not absconded from the investigation, that he had not received any summons or notifications from investigating authorities although he had not left his place of permanent residence, and that he was seriously ill, were dismissed as unsubstantiated.
9. The detention order was upheld on appeal by the Supreme Court of the Tatarstan Republic on 30 January 2009. The appeal court did not see any reasons to doubt the Town Court’s conclusions.
10. On an unspecified date the prosecution authorities amended the charges, having additionally accused the applicant of several counts of aggravated theft and attempted theft and unlawful possession of firearms.
11. The applicant’s detention was extended on a number of occasions. In particular, on 25 February 2009 the Town Court, holding that the applicant was charged with grave criminal offences and was likely to abscond, extended his detention until 28 March 2009. On 25 March 2009, with identical reasoning, it extended the detention until 28 May 2009. Another extension followed on 26 May 2009, when the Town Court mentioned the gravity of the charges and the risk that the applicant would abscond and interfere with witnesses who had testified against him. The final detention order, identical to the three previous ones, was issued on 9 June 2009.
12. On 26 June 2009 the applicant was committed to stand trial before the Nurlat District Court. However, two weeks later the District Court returned the case file to the investigating authorities for certain defects in the bill of indictment to be eliminated. The District Court’s decision was quashed on appeal and the case was sent back to the District Court for examination on the merits.
13. On 19 November 2009 the Nurlat Town Court found the applicant guilty of unlawful possession of firearms and several counts of attempted theft, and dismissed the remaining charges. The applicant was sentenced to three years and two months’ imprisonment. That judgment was quashed on appeal by the Supreme Court of the Tatarstan Republic on 19 March 2010 and the case was sent for a fresh examination. At the same time the Supreme Court, without providing any reasons, remanded the applicant in custody until 19 May 2010.
14. On 28 April 2010 the applicant asked the Nurlat District Court to release him on his own recognisance, arguing that his state of health, in particular the fact that he was suffering from Bechterew’s disease and could not receive the medical treatment he needed in the detention facility, warranted his release.
15. On the same day the District Court dismissed the application for release and extended the applicant’s detention until 19 August 2010, confirming that his detention had been authorised correctly in view of the gravity of the charges against him, his personality and the fact that a search warrant had been issued during the pre-trial investigation. The District Court also noted that, despite the fact that by virtue of the Russian law the applicant’s illness could warrant his release after the conviction, the domestic law did not provide for a possibility to release a detainee on health grounds while the investigation or trial were still pending. By the same decision the court scheduled the first trial hearing for 7 May 2010.
16. On 22 June 2010 the Supreme Court of the Tatarstan Republic upheld the decision of 28 April 2010, endorsing the District Court’s reasoning.
17. During the trial hearing on 29 June 2010 the applicant, who had been carried to the court-house on a stretcher, complained to the District Court that he was experiencing severe back pain and was unable to get off the stretcher and take part in the hearing. He asked the court to stay the proceedings and to authorise his release on his own recognisance, given his state of health. While the prosecutor supported the request for an adjournment, he asked the District Court to extend the applicant’s detention. The District Court agreed that the applicant’s health precluded him from appearing at the trial hearings, stayed the proceedings and extended the detention until 19 November 2010, citing the same reasons as in the previous detention orders.
18. The applicant appealed, complaining that there were no reasons justifying an extension of his detention. He argued that the risk of his absconding was negligible, as he was suffering from Bechterew’s disease, which significantly impaired his movement and was accompanied by severe pain. This was confirmed by a medical panel comprising specialists from the Nurlat District Hospital which had examined him in a courtroom on 29 June 2010. Relying on medical reports, the applicant submitted that his illness was incurable and progressed rapidly. The facility where he was detained did not have means, medical specialists or medicines to provide him with the medical care he needed, which could have reduced the severity of his symptoms. Citing various internal regulations of the Russian Health Ministry and Ministry of Justice, the applicant further argued that the domestic law listed his illness among those which relieved a convict from serving a sentence of imprisonment. At the same time, the conditions of detention in remand facilities were far worse than those in correctional colonies. In the applicant’s opinion, it was only logical to relieve him from being detained in worse conditions in a remand facility, taking into account the state of his health. He also noted that he had never attempted to abscond from the investigation, and the warrant for his arrest had been issued without any valid reasons.
19. On 7 September 2010 the Supreme Court of the Tatarstan Republic upheld the decision of 29 June 2010, noting that the grounds which had warranted the applicant’s detention were still present.
20. The proceedings were resumed on 4 October 2010. On 12 November 2010 the District Court again extended the applicant’s detention for an additional three months, until 19 February 2011. The reasoning employed by the District Court was identical to that of the previous detention orders.
21. On 7 December 2010 the Supreme Court of the Tatarstan Republic, having examined the applicant’s appeal, quashed the decision of 12 November 2010 and authorised the applicant’s release on bail of two million Russian roubles (RUB). The Supreme Court reasoned as follows:
“The presented materials indicate that [the applicant] is suffering from Bechterew’s disease and, given the state of his health, he cannot be detained in a temporary detention facility. He is unable to receive the necessary medical assistance in the prison hospital.
This is corroborated both by the decision of [the District Court] by which the proceedings had been stayed until [the applicant’s] recovery, and by medical documents enclosed with [the applicant’s] statement of appeal.
By virtue of the criminal procedural law the gravity of the charges ... is to be taken into account when a detention is extended, however, the gravity of the charges by itself cannot warrant detention for such a long period.
The case file materials indicate that [the applicant] has been detained since 29 December 2008.
Neither the investigator’s requests [for extension of the detention] nor the court decisions cite any real circumstances and evidence ... on the basis of which the investigating authorities and the court concluded that, if released, [the applicant] could abscond from the investigation and trial and reoffend.
The presented materials indicate that [the applicant] has a permanent place of residence, has no previous convictions, has positive reports on his character, and is the caregiver for two minor children.
In these circumstances, the court finds it possible to change [the applicant’s] measure of restraint to bail.”
22. On 15 December 2010 the bail was posted and the applicant was released. Five days later he was admitted to the Nurlat District Hospital for inpatient treatment.
23. On 16 March 2011 the Nurlat District Court found the applicant guilty of several counts of aggravated theft and attempted theft and unlawful possession of firearms, acquitted him of an attempted murder charge and sentenced him to four years and a month of imprisonment to be served in a correctional colony. The applicant was taken into custody in the courtroom.
24. On 27 May 2011 the Supreme Court of the Tatarstan Republic, acting on appeal, quashed the judgment in the part concerning the applicant’s acquittal, sent the matter for reconsideration by the trial court and upheld the remaining part of the conviction.
25. By way of a supervisory-review procedure, the Presidium of the Supreme Court quashed the judgment of 27 May 2011 and sent the case to the appeal court for a fresh examination.
26. On 27 September 2011 the trial judgment of 16 March 2011 became final, with the Supreme Court fully upholding the trial court’s findings.
27. The applicant provided the Court with a large number of medical reports and certificates, describing in detail his medical condition, medical history and the medical assistance rendered to him.
28. In particular, the medical documents indicate that in 1992, during his service in the army, the applicant was diagnosed with reactive arthritis. From 2003 onwards he experienced increasing pain in the lower back. When he sought medical assistance he was diagnosed with Bechterew’s disease. The applicant had treatment in various hospitals on a number of occasions. His condition is characterised by serious and constant pain in the spine, neck, chest, lower part of the back and hip joints, occasional pain in the knee and shoulder joints and hands, frequent shivering, and tightening of the chest, impairing breathing. The applicant has to constantly change position to relieve pain; he also experiences severe pain, lasting up to four hours, while walking. The disease has intense clinical activity and is progressing rapidly.
29. The applicant also produced a number of medical certificates issued as early as January 2009 by civilian doctors, noting that his treatment was impossible in a detention facility. The applicant’s medical condition, given the rapid deterioration of his health, required treatment in a specialised hospital. The doctors also noted that a failure to respect that condition would be a threat to the applicant’s life and would lead to his becoming disabled. On 11 January 2010 a medical assessment panel declared that the applicant was suffering from a Category 3 disability.
30. A medical certificate issued on 12 October 2010 by a doctor at the IZ-16/3 facility, where the applicant had been detained since 11 July 2009, indicates that the facility did not have the medicines which were prescribed for the applicant by a rheumatologist. A similar certificate was issued by the head of the medical unit of detention facility no. IZ-16/3 on 14 April 2010. According to the applicant, in an attempt to replace the absent medicines required for treating him the facility medical personnel provided him with cheaper drugs, which led to an impairment of his hearing and eyesight, kidney and liver damage and loss of the ability to move. He provided the Court with copies of more than forty payment receipts, as well as a number of letters to the head of the detention facility bearing handwritten notes by facility employees, showing that his relatives had regularly bought medicines and given them to the facility authorities, and that the authorities had handed the medicines over to the applicant.
31. Relying on a copy of the applicant’s medical file, the Government submitted that following the applicant’s arrest he was examined by a medical assistant. Given that he was suffering from Bechterew’s disease. he was prescribed diclofenac, an anti-inflammatory drug, and arava, a drug for the treatment of active rheumatoid arthritis.
32. As the applicant continued to complain of severe back pain, prison medical staff examined him on a number of occasions between 15 January and 19 April 2009, and added the following medicines to his regimen: aspirin, omez, tempalgin, duovit, movalis, an anti-rheumatic gel and Dicul’s balsam. The record shows that the applicant’s relatives provided the majority of those medicines. On 22 April 2009 a doctor made an entry in the record stating that the applicant should be sent for a comprehensive medical examination to decide whether to release him on parole. On a number of occasions the attending prison doctors also noted that it was necessary to transfer him to a prison hospital, given the highly progressive nature of the illness.
33. Between 28 April and 27 June 2009 the applicant was mostly seen by a prison nurse or medical assistant. The prison doctor visited him twice, checking whether the applicant had received medicines from his relatives. Each time the medical personnel confirmed the diagnosis, heard the applicant’s complaints, and decided that he should continue with the prescribed treatment.
34. On 11 July 2009 the applicant was transferred to facility no. IZ-16/3. He complained of severe joint pain and asked for a transfer to a prison hospital. On 24 and 31 July 2009 a neurologist and traumatologist from a civilian hospital examined the applicant. They confirmed the diagnosis of Bechterew’s disease with a long list of concomitant conditions, and prescribed treatment and therapeutic physical exercises. The Government submitted that the applicant had refused the treatment. Further requests by the applicant for admission to a hospital for inpatient treatment were addressed by the introduction of another painkiller and a herbal sedative to his regimen.
35. The applicant was admitted to a correctional colony hospital on 21 August 2009, where he underwent a number of tests and continued receiving treatment. He was transferred back to the detention facility less than a month later, on 16 September 2009, with a recommendation that he undergo regular and frequent clinical testing and continue with the treatment. A long list of medicines and a schedule of clinical tests was included in the recommendations. The applicant’s medical file does not contain any entries for the period between 16 September and 30 December 2009, when he was seen by an oculist.
36. Following a forensic medical examination of the applicant, on 11 January 2010 a medical panel declared that he was suffering from a Category 3 disability. No further entries were made in his file until 28 May 2010, except entries detailing that the applicant persistently complained of pain in the back and joints, that he was demanding treatment and an enriched dietary regime, that he was continuing to be treated with medicines provided by his relatives, and that the facility did not have the medicines which had been prescribed by doctors on the applicant’s release from the colony hospital in September 2009. The applicant’s medical file also shows that the facility’s medical staff attempted to amend the applicant’s treatment, given that the medicines prescribed for the applicant were too expensive, and therefore the facility did not have the resources to provide them.
37. On 28 May 2010 the applicant was again transferred to the colony hospital, where he remained until 9 June 2010. The doctors then authorised his transfer back to the detention facility, considering that his condition was satisfactory.
38. Following his transfer back to the detention facility, the applicant continued complaining of severe pain. His condition was considered to be moderately serious. The records also indicate that the applicant could not be seen by medical specialists, and in particular that he could not be seen by a rheumatologist, as the detention facility did not employ one. A medical certificate issued in May 2010 and submitted by the Government described the applicant’s illness as progressing rapidly, and specified that he could only be properly treated in a specialised medical facility: this treatment could not be provided in the environment in which he was being detained.
39. In response to his complaints of increasingly severe pain, the applicant was again admitted to the colony hospital on 23 November 2010, and spent two weeks there. He was released with a recommendation to continue taking medicines and to be seen regularly by a rheumatologist as a main requirement of basic therapy. In January 2011 a medical panel declared that the applicant’s disability had progressed to Category 2 under the medical classification scheme.
40. After he was convicted, on 16 March 2011, the applicant was detained again and placed on a list of inmates in need of close medical supervision. His condition was considered “relatively satisfactory”. He continued complaining of lower back pain and joint stiffness. Without providing specific details on the content of the treatment, the Government submitted that the applicant has been receiving it following recommendations by a rheumatologist.
41. In June 2009 the applicant lodged a complaint with the Chistopol Town Court, stating that he was not receiving the medical assistance he needed in detention and asking to be transferred to a prison hospital in Kazan.
42. By a letter of 24 July 2009 the Town Court returned the applicant’s complaint, with the following remarks:
“I return your request ... without an examination because under the criminal procedural law in force courts do not have the authority to authorise the transfer of detainees to prison hospitals.
You have to apply to the administration of the detention facility ... with a request for a transfer for medical treatment.”
43. On the same day the applicant lodged another request with the Town Court, seeking a forensic medical examination to determine the current state of his health. In August 2009 the applicant received a copy of a letter addressed to the head of detention facility no. IZ-16/3, by which the Town Court declared its lack of authority to examine the merits of the request.
44. In response to the applicant’s complaint that he was not receiving adequate medical assistance in detention, on 10 July 2009 the office of the Ombudsman of the Russian Federation stated that the complaint had been accepted for examination. No further update on the results of the examination was given to the applicant.
45. Records provided by the Government show that the applicant lodged a large number of complaints about the quality of the medical care at the facilities where he was detained. The applicant argued that he had also sent complaints to various prosecution authorities about lack of medical assistance in detention, and also complained that his health was deteriorating rapidly. He provided the Court with a copy of his complaint to the Prosecutor of the Tatarstan Republic. The copy bears a stamp indicating that the copy was authentic. A handwritten note in the corner of the complaint appears to show that the complaint was received on 24 July 2009 and attached to the applicant’s file. No response followed.
46. The relevant provisions of domestic and international law governing the health care of detainees, including those suffering from HIV and tuberculosis, are set out in the following judgments: A.B. v. Russia, no. 1439/06, §§ 77-84, 14 October 2010; Yevgeniy Alekseyenko v. Russia, no. 41833/04, §§ 60-66 and 73-80, 27 January 2011; and Pakhomov v. Russia, no. 44917/08, §§ 33-39 and 42-48, 30 September 2011.
50. The Ombudsman may receive complaints concerning the actions by federal and municipal State bodies or employees, provided that the complainant has previously lodged a judicial or administrative appeal in this connection (section 16 § 1).
51. Having examined the complaint, the Ombudsman may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a State official or petition the competent authorities for institution of disciplinary, administrative or criminal proceedings against the State official who has committed such a breach (section 29 § 1).
52. The Ombudsman prepares a summary of individual complaints and he or she may submit to State and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers (section 31).
53. Chapter 25 sets out the procedure for the judicial review of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts of inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7).
54. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255).
55. The complaint must be lodged within three months of the date on which the citizen learnt of the breach of his rights. The time period may be extended for valid reasons (Article 256). The complaint must be examined within ten days; if necessary, in the absence of the respondent authority or official (Article 257).
56. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. If necessary, the court may obtain evidence on its own initiative (point 20 of Ruling no. 2).
57. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2).
58. The decision is dispatched to the head of the authority concerned, to the official concerned or to their superiors, within three days of its entry into force. The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 §§ 2 and 3).
59. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own (Article 1064 §§ 1, 2).
60. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of: (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure; and (iii) unlawful administrative punishment (Article 1070).
61. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated if the damage was caused: (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment: or (iii) through dissemination of information which was damaging to the victim’s honour, dignity or reputation (Article 1100).
62. The Russian legal regulations of detention are explained in the judgment of Isayev v. Russia (no. 20756/04, §§ 67-80, 22 October 2009).
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-113548
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ANTONYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 5. The applicant was born in 1937 and lives in Yerevan. She is a seconddegree disabled person.
6. On an unspecified date during the Soviet period, the State allocated to the applicant a flat in Yerevan on the right of tenancy.
7. In 1981 the applicant’s niece, who had moved to Yerevan to study, obtained registration at the applicant’s flat with the latter’s consent. In 1986 she moved back to the town of Hrazdan without cancelling her registration. In 1989 the applicant’s niece was married, and she gave birth to two children in 1989 and 1991 respectively. Upon the applicant’s consent, the children were also registered at the applicant’s flat so that they could receive medical care from her address.
8. On 11 February 1993 the applicant acquired ownership of the flat, which was notarised on 19 February 1993.
9. In 1996 the applicant’s niece passed away. Her registration at the applicant’s flat was subsequently cancelled.
10. On 26 December 2003 the applicant applied to the Kanaker-Zeytun District Police Department of Yerevan (hereafter the District Police Department) seeking to cancel the children’s registration.
11. By a letter of 20 January 2004 the District Police Department informed the applicant of its refusal to cancel the children’s registration on the ground that, according to the relevant rules, the registration of minors could be cancelled only together with the cancellation of the registration of one of their parents; upon an application by the parents or the children’s lawful representatives; in connection with studies; or upon a relevant court order.
12. On an unspecified date, the applicant contested this refusal before the courts, seeking to oblige the District Police Department to deregister the children and claiming that the latter had never lived in her flat.
13. On 15 March 2004 the Arabkir and Kanaker-Zeytun District Court of Yerevan dismissed the applicant’s complaint, finding that the refusal was lawful as the District Police Department had acted in accordance with Government Decree no. 821 of 25 December 1998. According to the text of the judgment, the parties had been duly notified of the hearing but had failed to appear. According to the applicant, she was not notified of that hearing.
14. On 25 March 2004 the applicant lodged an appeal.
15. On 8 June 2004 the Civil Court of Appeal dismissed the applicant’s appeal on the same ground. According to the text of this judgment, the applicant and her representative made oral submissions at the court hearing. According to the applicant, neither she nor her representative was given the opportunity to make any oral submissions. It further appears that the children’s father was present at the appeal hearing and petitioned to dismiss the applicant’s claim.
16. On an unspecified date, the applicant lodged an appeal on points of law.
17. On 23 July 2004 the Court of Cassation dismissed her appeal finding that:
“According to Article 225 of the Civil Code, if no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value.
In such circumstances, the arguments raised in the appeal on points of law are unsubstantiated, since the right of use of accommodation enjoyed by [the children] can be terminated only in accordance with Article 225 of the Civil Code...”
18. According to Article 4, apartment buildings and accommodation in other constructions situated on the territory of Armenia comprise the housing fund.
19. According to Article 9, citizens are entitled to receive accommodation in houses of the State and the public housing fund through a prescribed procedure.
20. According to Article 49, on the basis of the decision to allocate accommodation in a building of the State or public housing fund, the relevant executive committee shall provide the citizen with an order which shall serve as the sole basis for occupying the allocated accommodation.
21. According to Article 51, the accommodation tenancy agreement in respect of the buildings of the State and public housing fund shall be concluded in writing, on the basis of the accommodation order, between the lessor, namely, the organisation managing the maintenance of the building, and the tenant, namely, the citizen in whose name the voucher has been provided. Accommodation in the buildings of the State and public housing fund shall be used in accordance with the accommodation tenancy agreement.
22. According to Article 53, the tenant’s family members who live with him shall equally enjoy all the rights and bear all the responsibilities stemming from the accommodation tenancy agreement.
23. According to Article 54, the tenant’s family members include his spouse, their children and parents. Other individuals may be recognised as the tenant’s family members, if they live with the tenant and run a common household.
24. According to Article 55, the tenant has the right, with the consent of members of the family residing with him, to accommodate his spouse, children, parents and other persons in the accommodation occupied by him. Persons who have been accommodated in the accommodation according to this Article shall acquire the right of use of that accommodation equally with other persons residing there, unless some other agreement has been reached, at the time when these persons were accommodated, between the tenant and members of his family residing with him.
25. According to Article 59, in case of the tenant’s or his family member’s temporary absence, the accommodation shall be kept for them for a period not exceeding six months. A person may lose his right of use of accommodation by a court decision as a result of being absent for a period exceeding the prescribed time-limit on the basis of an application filed by the tenant or other permanent users of the accommodation in question.
26. According to Article 23 § 2, the place of residence of minors under the age of fourteen shall be considered the place of residence of their lawful representatives, such as, inter alia, their parents.
27. According to Article 163 § 1, the right of use implies the possibility afforded by law to reap the useful natural qualities of a property and to “benefit” from it.
28. According to Article 225 § 1, as in force at the material time, the family members of the owner of accommodation and other individuals have the right to use the accommodation, if that right has been registered in accordance with the procedure prescribed by the Law on the State Registration of Property Rights.
29. According to Article 225 § 2, as in force at the material time, the right of use of accommodation shall originate, be implemented and terminated through a notarised written agreement with the owner. If no agreement is reached regarding the termination of the right of use of accommodation, this right can be terminated upon the owner’s request through court proceedings by paying compensation equivalent to the market value.
30. In accordance with Article 225 § 4, as in force at the material time, a person enjoying the right of use of accommodation can demand that any person, including the owner, eliminate the breaches of his right in respect of the accommodation.
31. According to Paragraph 20, flats in buildings of the State and public housing fund shall be sold as private property to the tenants of the flats in question and their family members indicated in Article 54 of the Housing Code, if there is written consent from all the adult family members. The flat may be sold to them as a common property, if they so wish.
32. According to Paragraph 20, as in force at the material time, registration and deregistration of citizens shall be implemented for the purpose of ensuring necessary conditions for the enjoyment by them of their rights and freedoms as well as for the performance of their obligations before the State and other citizens.
33. According to Paragraph 21, as in force at the material time, citizens shall be registered at only one address at their temporary or permanent place of residence.
34. According to Paragraph 22, as in force at the material time, accommodation in respect of which a citizen does not have the right of ownership, tenancy or sub-tenancy, and which is not his permanent place of residence shall be considered his temporary place of residence.
35. According to Paragraph 23, as in force at the material time, the place where a citizen lives permanently or predominantly shall be considered his permanent place of residence.
36. According to Paragraph 29, a citizen’s application to be registered at a temporary place of residence can be refused if there is no written consent from, inter alia, the owner of the accommodation. Minor children shall be registered, irrespective of whether there is written consent from the owner, at the place of registration of one of the parents or their lawful representative.
37. According to Paragraph 39, the registration of minors below the age of sixteen who live with their parents shall be made through a relevant entry in the accommodation card or the parent’s registration card on the basis of the parents’ identity documents and the minor’s birth certificate.
38. According to Paragraph 44, the registration of citizens registered at a temporary or permanent place of residence shall be cancelled in case of, inter alia, change of place of residence, death, or if the documents and information which served as a basis for the registration were false. The authorities in charge of registration shall cancel the citizen’s registration at the permanent place of residence on the basis of documents within three days and make a relevant entry in his passport.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-81003
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TUMA v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Herbert Tuma, is an Austrian national who was born in 1947 and lives in Vienna. He was represented before the Court by Mr K. Bernhauser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an estate agent, who has been operating several limited liability companies which dealt with the acquisition, restoration and resale of apartment houses in Vienna.
In 1993 police investigations were instituted against the applicant. He was accused of having misappropriated his clients’ money through an intransigent system of companies. As no proper accounting was set up, he allegedly regularly used revenues coming from one company to make up for shortfalls in another one.
Subsequently, on 11 August 1994 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) opened preliminary investigations on suspicion of, inter alia, embezzlement, fraudulent bankruptcy and evasion of social security contributions.
On 1 September 1994 the preliminary investigations were extended to include the suspicion of aggravated fraud. On the same date Mrs R. was appointed as accounting expert and requested to prepare a report on the applicant’s companies.
In the course of 1995 a number of witnesses were heard and various premises were searched. In July 1995 expert R. submitted an interim report.
On 4 June 1996 expert R. submitted a further report.
On 30 June 1996 the Vienna Regional Criminal Court ordered the applicant’s detention on remand for risk of absconding. Further, there was a risk that he might commit another offence similar to the one he was suspected of. Subsequently, the Vienna Regional Criminal Court extended the applicant’s detention on remand on 11 July, 12 August, 14 October and 28 November 1996.
On 27 August and 3 October 1996 two further experts were appointed and ordered to submit reports. On 4 October 1996 the investigating judge requested expert R. to supplement her report.
On 27 January 1997 the applicant was released from detention.
During 1997 and 1998 all three experts submitted interim reports and on 1 September 2000 expert R. submitted her final report.
On 6 November 2001 the applicant was summoned in order to be questioned. He was heard twice in November 2001 and once in March 2002.
On 1 July 2002 the Vienna Public Prosecutor’s Office drew up a bill of indictment on charges of embezzlement, fraudulent and negligent bankruptcy, aggravated fraud and misappropriation on numerous counts. On 12 August 2002 the applicant filed an objection against the indictment.
By decision of 31 March 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the objection. It found that there were no formal reasons which would require the proceedings to be discontinued.
Between 29 September and 27 October 2003 seven hearings were held before the Vienna Regional Criminal Court.
On 27 October 2003 the Vienna Regional Criminal Court convicted the applicant of fraudulent and negligent bankruptcy and of evasion of social insurance contributions and sentenced him to four years’ imprisonment. It acquitted him of the remaining charges.
On 5 March 2004 the applicant filed a plea of nullity and an appeal against sentence. The Public Prosecutor also filed a plea of nullity.
By judgment of 10 March 2005 the Supreme Court (Oberster Gerichtshof) partly confirmed the Regional Court’s judgment. As regards some of the charges it remitted the case back to the Regional Court.
On 28 April 2005 the proceedings concerning the remaining charges were discontinued.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz) provides as follows:
“(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal.”


ITEMID: 001-105166
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MILCZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Adam Milczak, is a Polish national who was born in 1971 and is currently detained in Wojkowice. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 April 2000 the applicant was arrested.
On 14 April 2000 the Łódź Regional Court (Sąd Okręgowy) remanded him in custody on suspicion of murder.
Subsequently, the applicant’s pretrial detention was extended by decisions of the Łódź Regional Court of 4 July and 6 October 2000, and 4 June, 13 August, 15 October and 16 November 2001.
The domestic courts justified the applicant’s pretrial detention by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed, as well as by the need to secure the proper course of the proceedings. The authorities emphasised that the applicant had to undergo psychiatric observation at the hospital and that a number of expert reports had to be obtained.
On an unspecified date the applicant was indicted for murder, namely, intentionally strangling his former wife.
On 16 November 2001 the Łódź Regional Court convicted the applicant as charged and sentenced him to 15 years’ imprisonment and 8 years’ deprivation of public rights.
Pending appeal, on 8 May 2002 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed a request by the applicant to lift the preventive measure and decided to further extend his detention.
On 23 July 2002 the Łódź Court of Appeal quashed the judgment in the part concerning the deprivation of public rights and upheld the remainder of the judgment.
On 8 October 2003 the Supreme Court (Sąd Najwyższy) quashed the first and second-instance judgments and remitted the case to the Regional Court.
In a separate decision of 8 October 2003 the Supreme Court extended the applicant’s detention, relying on the likelihood that a severe penalty would be imposed.
On 16 December 2003 the Łódź Regional Court dismissed a request by the applicant for the preventive measure in question to be lifted and decided to further extend his detention. To justify the applicant’s protracted detention the court reiterated the grounds which had previously been relied on and noted, in addition, that the applicant’s chronic illness or his family situation did not warrant his release on humanitarian grounds. This decision was upheld by the Łódź Court of Appeal on 20 January 2004.
Similarly, on 23 June 2004 the Łódź Regional Court dismissed a request by the applicant for the preventive measure in question to be lifted and decided to further extend his detention.
Subsequently, the applicant’s detention was extended by decisions of the Łódź Regional Court of 20 October 2004 and 11 January and 28 February 2005.
To justify the extension of the applicant’s detention the courts relied on the original grounds given. Moreover, the authorities noted that the proceedings could not be completed for objective reasons, such as the fact that samples of the victim’s nails, which were necessary to perform DNA tests, had been lost and that it was necessary to examine a few more witnesses.
On 7 March 2005 the Łódź Regional Court convicted the applicant as charged and sentenced him to 15 years’ imprisonment.
On 29 September 2005 the Łódź Court of Appeal upheld that judgment.
On 28 June 2006 the Supreme Court dismissed a cassation appeal in the case.
Throughout the entire proceedings the applicant was represented by legal counsel of his choice; initially by two attorneys and later, upon the remittal of the case, by one.
The applicant was detained in Łódź Remand Centre on the following dates:
- from 14 April to 20 June 2000;
- from August 2000 to 23 August 2002;
- from 10 December 2003 to 29 December 2004 and
- from 25 January 2005 to 25 October 2006.
Subsequently, the applicant was held in Bydgoszcz Fordon, Łódź and Garbalin Prisons. On 22 July 2010 the applicant was transferred to Wojkowice Prison, where he currently remains.
The applicant submitted that Łódź Remand Centre was overcrowded and that the sanitary and hygienic conditions were inadequate. Initially, the applicant was held with four other detainees in a cell designed for three persons. Subsequently, he was transferred to a cell which measured 11.6 m² and was shared by five persons, including the applicant.
The remand centre had not been renovated and was dirty. There was mould on the walls and the cells were infested with bugs. The furniture was scarce and shabby.
In his correspondence with the Court, the applicant repeatedly submitted that unspecified persons had drugged him before his trials, subjected him to electric shocks and used various auditory and visual methods in order, in the applicant’s opinion, to force him to plead guilty to the crime he was charged with.
Lastly, the applicant, who suffers from psoriasis and had been, in the past, treated for hepatitis C, asserted that throughout his detention in various penitentiary facilities he had not received adequate medical care and had not been able to follow the diet he had been prescribed by his doctor when he was at liberty. The applicant maintained that his health had significantly deteriorated since his arrest. He did not, however, specify what ailments he was currently suffering from and did not provide any medical records to support that submission.
The applicant submitted that he had complained to the penitentiary authorities about different aspects of his detention but had never received any reply.
The file contains a copy of a letter issued by an unspecified authority on 16 October 2007. It is confirmed in the letter that the applicant had lodged numerous complaints with the administration of Bydgoszcz Fordon Prison and Łódź Remand Centre. It is further explained that the applicant’s complaints that the authorities had subjected him to electric shocks and caused him to have auditory and visual hallucinations were considered manifestly ill-founded.
A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that their conditions of detention are inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the decision given by the Court in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
The relevant domestic law and practice concerning the imposition of pretrial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, socalled “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 2733, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 2223, 4 August 2006.


ITEMID: 001-75644
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ATELŠEK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1943 and lives in Topolščica.
6. On 27 June 1994 the applicant was injured in a car accident. She had taken out insurance with the insurance company ZT.
7. On 22 December 1995 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 11,003,980 tolars (approximately 46,000 euros) for the injuries sustained.
Between 11 January 1996 and 1 December 1998 the applicant lodged five preliminary written submissions and/or adduced evidence.
Between 22 April 1996 and 7 May 1999 she made six requests that a date be set for a hearing.
Of the four hearings held between 19 November 1997 and 17 September 1999 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 21 December 1999.
8. On 31 December 1999 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 19 October 2000 the court allowed the applicant’s appeal and remitted the case to the first-instance court for re-examination.
The judgment was served on the applicant on 15 January 2001.
9. On 14 March 2001 the first-instance court held a hearing and decided to deliver a written judgment.
The judgment, upholding the applicant’s claim in part, was served on the applicant on 30 May 2001.
On 8 June 2001 the court corrected the typos and miscalculations in the judgment. The decision was served on the applicant on 12 June 2001.
10. On 8 June 2001 the applicant appealed to the Celje Higher Court. ZT cross-appealed.
On 3 October 2002 the court allowed the applicant’s appeal and raised the amount of damages awarded.
The judgment was served on the applicant on 25 November 2002.
11. On 10 December 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče) and requested the second-instance court to correct its judgment.
On 5 June 2003 the second-instance court corrected its judgment at the request of the applicant.
On 27 January 2005 the Supreme Court allowed the applicant’s appeal in part and increased the damages awarded.
The judgment was served on the applicant on 14 March 2005.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108580
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF USTYANTSEV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1972 and is currently in custody.
6. On 7 September 2001 a group of persons, allegedly including the applicant, entered the house of a certain S. and burgled it.
7. On 10 September 2001 the police instituted an investigation into the burglary. In the course of the investigation, charges were brought against several persons and proceedings were pending against them in parallel.
8. On 12 September 2001 the applicant stole a car belonging to a certain K. and was involved in a collision. He was caught by the police on the same day and criminal proceedings were instituted against him.
9. The next day the applicant was charged with car theft.
10. On 14 September 2001 the applicant’s detention on remand on account of the car theft charge against him was authorised by the Leninskyy District Court of Odessa (“the District Court”, which was apparently joined to the Suvorovsky District Court of Odessa after an administrative reform).
11. By 7 November 2001 the pre-trial investigation was completed and the applicant’s car theft case was transferred to the District Court for examination on the merits.
12. On 11 January 2002 the court, having found out that criminal proceedings on other charges were also pending against the applicant (i.e. burglary charges, of which the applicant claims to have been unaware), remitted the car theft case to the investigator to be joined to the burglary case and investigated further. The court also confirmed the applicant’s further detention on remand.
13. On 17 January 2002, after the District Court had decided to join the applicant’s car theft and burglary cases, the applicant attempted to commit suicide in protest. There were further attempts to commit suicide on 28 February 2003 and 11 November 2005, in response to the court’s allegedly unlawful acts. On several occasions the applicant went on hunger strike.
14. On an unspecified date the investigator, having taken over the remitted case, joined the two cases against the applicant.
15. On 2 February 2002 the applicant was formally charged with burglary.
16. By 14 March 2002 the pre-trial investigation was completed and the applicant’s case in respect of the car theft and burglary charges was transferred to the District Court for examination on the merits.
17. On 11 November 2002 the victim and witnesses failed to appear before the court. The court rescheduled the hearing and ordered that their attendance at the next court hearing be secured by the authorities (prosecutor and police). The next four court hearings were also rescheduled for the same reason, extending the proceedings by three months. On 26 November and 13 December 2002 and 21 January 2003 the court complained to the authorities about their failure to enforce its instructions to secure attendance at its hearings. It noted, inter alia, that delays in the examination of a case lengthened the detention of the accused in the SIZO, which was overcrowded and had poor sanitary conditions.
18. On 3 March 2003 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. It also ordered that his detention be continued pending the appeal proceedings. According to the applicant, the judgment was given in his and his lawyer’s absence and he was informed of it only on 11 March 2003.
19. On 31 July 2003 the Odessa Regional Court of Appeal partly allowed the applicant’s appeal, quashing the judgment relating to the burglary charge and remitting it for retrial, and reducing his sentence to five years and six months for car theft. When the applicant complained that he had been deprived of an opportunity to complete his last appeal, the court found that he had waived his right as he had failed to take several opportunities provided by the lower court. With respect to the applicant’s complaint that the judgment had not been pronounced in his presence, the court noted that initially the judgment had been pronounced in the applicant’s absence as the applicant had refused to be present in the courtroom; however, on 11 March 2003 the applicant had been taken to the courtroom once again and the judgment had ultimately been pronounced in his presence.
20. On 22 March 2005 the Supreme Court of Ukraine dismissed a cassation appeal by the applicant. As the applicant had appealed against the sentence, the Supreme Court did not examine the remitted part of the case but limited its examination to the challenged part alone. The applicant received that decision on 11 April 2005.
21. The applicant further attempted to have his case reviewed under the extraordinary procedure but was unsuccessful.
22. On an unspecified date the District Court resumed examination of the burglary charge against the applicant.
23. From 23 October 2003 to 2 March 2004 all seven court hearings were rescheduled owing to the applicant’s lawyer’s and other defence lawyers’ failure to appear before the court. Later, for the same reasons, the hearings were rescheduled at least eleven times, delaying the proceedings by approximately two months more. In addition, on numerous occasions the witnesses and other participants also failed to appear and the court ordered that their attendance at the following hearing be secured by the police.
24. On 29 April 2005 a forensic handwriting examination was ordered, in order to check the authenticity of the applicant’s signatures on several procedural documents. The report was completed by 19 May 2005.
25. On 1 June 2005, referring to the above report, the court found that the applicant’s signature had been forged on a number of crucial procedural documents drawn up at the beginning of 2002, and accordingly remitted the case for additional investigation. On the same date the court issued a special ruling (окрема постанова) informing the local prosecutor and the head of the police that it was the investigator who had forged the applicant’s signature and that criminal proceedings should therefore be brought against him.
26. On 4 October 2005 the investigator discontinued the proceedings against the applicant for lack of proof of his guilt. According to the applicant, he found out about that decision only after receipt of the Government’s observations.
27. According to the Government, the applicant was held in the SIZO from 15 September 2001 to 20 August 2003, from 2 October 2003 to 20 November 2005, from 6 to 8 December 2005, from 26 December 2005 to 8 January 2006 and from 8 to 10 February 2006. From 23 November 2004 to 6 December 2005 the applicant was held in the Daryivska Correctional Colony No. 10. Between 9 and 24 December 2005 the applicant was held in the Buchach Correctional Colony No. 85. From 14 January 2003 to 2 October 2003 and from 10 February 2006 to 22 January 2007 he was held in the Raykiv Correctional Colony No. 73.
28. According to the applicant, however, in the periods from 1 to 28 February and from 9 to 17 July 2002 he was detained in a temporary detention centre (Ізолятор тимчасового тримання), and from 20 November to 26 December 2005 he was detained in correctional colonies nos. 10 and 85, where he underwent medical treatment.
29. On 22 January 2007 the applicant was released on parole.
30. On 22 August 2007, being suspected of having committed a new crime, the applicant was arrested again.
31. According to the applicant, in the temporary detention centre the detainees were fed only once a day and the lights were not switched off at night. The poor conditions of detention prevented him from keeping basic standards of personal hygiene and preparing his defence.
32. As to the SIZO, in the cell where the applicant was held on 4 July 2005 space was limited to one square metre per person (later, in reply to the Government’s observations, the applicant explained that the cell, in which four detainees were held, measured 7.5-10 square metres, 1.5 square metres of which was taken up by a toilet and washstand), the lighting remained on at night, there was a concrete floor, which the applicant considered unacceptable, and he had no facilities to prepare his defence. The SIZO authorities did not provide him with basic necessities, normal medical assistance, press or audiovisual media, gym facilities or the right to have private correspondence. The applicant accepted that after his suicide attempts (see paragraph 13 above) his life had been saved by the SIZO’s medical personnel.
33. According to the applicant, prison vans were overcrowded, the detainees’ room in the District Court lacked normal standards of detention and detainees were not fed.
34. As a result of the above conditions of detention, the applicant’s state of health has deteriorated. In particular, he suffers from chronic prostatitis, thrombophlebitis and a venereal disease.
35. According to the Government, cells in the SIZO are equipped with basic furniture, toilets separated from the living space, sufficient artificial light, and windows and ventilation that let in sufficient fresh air and daylight. The detainees are fed in compliance with the requirements of the domestic legislation, and allowed daily one-hour walks and eight hours’ uninterrupted sleep a day. Each of them has access to a bath once a week for half an hour. The SIZO has its own library open to the detainees.
36. The SIZO cells in which the applicant was held measured no less than 2.5 square metres per person. Upon arrival, he was provided with a bunk and basic necessities.
37. According to the outline of the applicant’s medical record submitted by the Government, upon arrival at the SIZO the applicant also underwent a medical examination. It was established as a result that in 2000 he had been diagnosed with chronic prostatitis and in 2001 (but before his arrival) he had had a craniocerebral trauma. Later, in 2003, the applicant was diagnosed with syphilis. In 2005 he underwent medical treatment for his prostatitis in a correctional colony. On 3 April 2008 the applicant was examined by a dermatovenereologist and diagnosed with active chronic mycotic urethritis (хронічний трихомонадний уретрит в стадії загострення). On 21 May 2008, after proper treatment, no pathology was revealed. The applicant was prescribed further treatment for his prostatitis on 19 September 2008 and 3 March 2009.
38. On 15 March 2006 the applicant brought a civil action against the SIZO, seeking compensation for the inappropriate conditions of his detention, among other things.
39. On 17 April 2006 the Prymorskyy District Court of Odessa dismissed the applicant’s claim on account of his failure to rectify its procedural shortcomings within the time-limit allotted by the court.
40. The applicant appealed against that decision but on 11 September 2006 the Odessa Regional Court of Appeal dismissed his appeal as having been lodged without a request for renewal of a missed statutory time-limit.
41. According to the applicant, on 2 June 2009 he submitted a written complaint concerning the conditions of his detention to a prosecutor who visited the SIZO.
42. According to the applicant, on 23 March 2005, in the course of the criminal proceedings against him, he brought an action before the Prymorskyy District Court of Odessa (no copy is available and no details are specified) claiming a violation of his rights as a result of a miscarriage of justice. On 19 April 2005 he repeated his application, but received no reply.
43. The applicant initially submitted only a few documents to the Court in support of his complaints. He contended that the authorities had not provided him with copies of any other documents.
44. On 11 August 2005 (followed by a reminder on 3 October 2005) the Court’s Registry requested the applicant to provide copies of all the court decisions taken in his case(s) after 31 July 2003, as well as proof of the alleged ill-treatment.
45. In his reply of 12 September 2005 the applicant stated that he was unable to provide the requested copies. He explained, in particular, that on 25 August 2005, following the Registry’s request, he had sent a letter to the District Court requesting copies of the court decisions taken in his case within the specified period. On 8 September 2005 the applicant was informed that the District Court had sent his case file to the prosecutor. The applicant then complained to the prosecutor, but he never received the requested documents. In his letters to the domestic authorities the applicant did not refer to the Registry’s request; nor is it apparent from the available documents that the Registry’s request was appended to his letters.
46. The applicant further explained that he had also requested the SIZO authorities to provide him with copies of his medical file (no copy of his request is available). The authorities gave him access to the file but refused to make copies for him, stating that they could be given only to legal entities.
47. Under section 4 of the Pre-trial Detention Act, during the investigation and trial suspects may be held in a SIZO (temporary detention centre) or in a prison that serves as a SIZO. Exceptionally suspects may be kept in an IVS (cells for short-term detention in police stations). If a convicted person is under investigation in respect of another offence, he or she may be held in the disciplinary detention unit of the correctional colony. Section 8 of the Act provides that suspects who have been convicted of a different offence must be separated from other detainees.
48. The Correctional Labour Code provided that a convicted person should normally be held in the same custodial institution (Article 22). Under Article 23 of the Code, a person who was sentenced to imprisonment in a colony could be temporarily held in a SIZO or prison in connection with different criminal proceedings, as a witness (for up to six months with the authorisation of the prosecutor) or as a suspect, in accordance with the general rules governing detained suspects under Article 156 of the Code of Criminal Procedure.
49. The Code on Enforcement of Criminal Sanctions replaced the Correctional Labour Code.
50. Article 87 of this Code provides that convicted persons must be sent to serve their sentence within ten days after the conviction becomes final.
51. Article 90 of the Code provides that the convicted person can remain in the SIZO or be temporarily transferred from a prison or a colony back to the SIZO for investigative activities or to put him/her on trial (for a different offence) or for the purposes of proceedings against a third party.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 34