ITEMID: 001-91788
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF POLONSKIY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1968 and lives in Volgograd.
6. On 28 January 2003 the applicant was arrested on suspicion of unlawful possession of arms and forgery of identity documents. He was taken to police department no. 2 in Volgograd and interrogated in the office of its deputy head, Mr T.
7. The applicant stated that Mr T. and the subordinate police officers had handcuffed and beaten him, seeking a confession. While he was sitting on a chair with his arms handcuffed behind the chair, the policemen administered electric shocks to his fingers through wires connected to a dynamo. The applicant fell onto the floor and one of the policemen stepped on his back. As the applicant was screaming, the policeman took off the applicant’s sock and gagged his mouth.
8. At about 5 a.m. on 29 January 2003 the applicant was put in a temporary detention cell. In the cell he pulled out a nail from the window frame and tried to open his veins. His arms swelled up and he asked for a doctor. The warders gave him an antiseptic and allegedly handcuffed him to a bar in the corridor. An hour later he was again taken to the police station and beaten. The policemen threatened to torture his wife and sister and insisted that he confess.
9. On 30 January 2003 the applicant was questioned by the investigator and he complained to the latter about ill-treatment. The investigator ordered a medical examination. The applicant was immediately escorted to the Volgograd Regional Department of Forensic Medicine where he was examined by two medical experts. It can be seen from the medical report of the same date that he had numerous bruises on his forehead, left shoulder, left shoulder-blade and right leg, which had been caused by the impact of blunt objects. The injuries to his back and leg could have been the result of bumping against protruding objects. The applicant also had abrasions on his forearms, which had been caused by a sharp object, possibly a nail. Lastly the doctors recorded thermoelectrical burns on the applicant’s fingers. They found that all injures had been inflicted one or two days before.
10. On 28 March 2003 the police arrested and allegedly beat the applicant’s wife and sister. They were released on 31 March 2003. On the same day the applicant’s sister was examined by a doctor who reported many bruises on her chest and waist and brain concussion. The applicant’s wife was diagnosed with post-traumatic perforated otitis.
11. On 29 March 2003 the applicant’s mother-in-law was also arrested and questioned by police officer Mr T. According to her testimony, he was drunk. He hit her several times in the face and verbally abused her. She was released on the same day. It transpires from a medical certificate issued on 30 March 2003 that she had a bruise on her face.
12. The applicant stated that he had complained to the prosecutor’s office about his ill-treatment, but had received no reply. He then signed a power of attorney for his mother who, on 26 August 2004, filed a complaint about the applicant’s ill-treatment with the prosecutor’s office. The applicant’s wife, sister and mother-in-law also complained that they had been beaten by Mr T., a deputy head of police department no. 2, and the subordinate police officers.
13. The Tsentralniy District prosecutor questioned one of the police officers of police department no. 2 and he denied beating the applicant. No other investigative measures were taken. On 3 September 2004 the Tsentralniy District prosecutor refused to initiate criminal proceedings against the policemen, finding that there was no evidence of ill-treatment. He observed that the applicant had never complained about ill-treatment to the investigator in charge of his criminal case. He also noted that it had been impossible to question Mr T. as he had been on mission in Chechnya.
14. The applicant challenged the decision of 3 September 2004 before the Tsentralniy District Court of Volgograd.
15. On 22 March 2005 the Volgograd Regional prosecutor set aside the decision of 3 September 2004 and ordered an additional inquiry. On 14 December 2005 the Tsentralniy District Court of Volgograd discontinued the proceedings as the decision of 3 September 2004 had been annulled.
16. On 3 April 2005 the Tsentralniy District prosecutor for a second time refused to open criminal proceedings.
17. On 5 December 2005 the Volgograd Regional prosecutor set the decision aside and ordered that the Tsentralniy District prosecutor conduct an additional inquiry, and in particular question the applicant, his wife, mother and sister, his co-defendants, co-detainees, Mr T. and other police officers of police department no. 2, and obtain a medical examination of the applicant.
18. In December 2005 and January 2006 the Tsentralniy District prosecutor questioned the applicant’s mother, sister, wife and mother-in-law, who described the circumstances of the applicant’s arrest and complained that they had been intimidated and hit by Mr T. He also questioned Mr T. and another police officer, who denied beating the applicant or any of his relatives. On 24 January 2006 the Tsentralniy District prosecutor for a third time refused to open criminal proceedings, finding that there was no evidence of ill-treatment. He noted that the applicant had never complained about ill-treatment. All complaints had been lodged by his mother after the criminal case against the applicant had been referred for trial. The mother “had been motivated by the desire to help her son avoid criminal responsibility for the serious criminal offences committed by him”.
19. On the same day the decision was set aside by the prosecutor’s immediate superior, who ordered an additional inquiry.
20. On 27 February 2006 the Tsentralniy District prosecutor for a fourth time refused to open criminal proceedings. He established on the basis of medical documents that the applicant and his relatives had received injuries. However, given that the policemen denied beating them, it was not possible to establish with certainty that the injuries had been inflicted by the police.
21. On 16 March 2006 the decision was set aside by the senior prosecutor, who found that the district prosecutor had not carried out the investigative measures specified in the decision of 5 December 2005 and ordered additional enquiries.
22. On 25 March 2006 the Tsentralniy District prosecutor again refused to open criminal proceedings, repeating verbatim the decision of 27 February 2006.
23. The applicant’s mother challenged the decision before a court. On 22 June 2006 the Tsentralniy District Court of Volgograd quashed the decision, finding that the prosecutor had never questioned the applicant about the alleged ill-treatment and had failed to identify the police officers who could have been responsible for it.
24. On 8 August 2006 the Tsentralniy District prosecutor questioned the applicant, who provided a detailed account of his ill-treatment and again refused to open criminal proceedings for the same reasons as before.
25. On 9 October 2006 the decision was set aside by the superior prosecutor, who found that the inquiry had been incomplete. He ordered that the district prosecutor question the applicant’s co-defendants and the police officer who had arrested the applicant.
26. On 19 October 2006 the Tsentralniy District prosecutor questioned the arresting officer who denied beating the applicant. He also questioned the applicant’s co-defendants, who testified that they had seen the policemen beating the applicant or had seen his injuries. On the same day he issued a decision refusing to open criminal proceedings against the policemen for the same reasons as before.
27. The applicant’s mother challenged the decision before a court. On 18 December 2006 the Tsentralniy District Court found that she had no standing to complain about her son’s ill-treatment. On 27 February 2007 the Volgograd Regional Court quashed the decision of 18 December 2006 on appeal, finding that the applicant’s mother had a power of attorney signed by the applicant and had been officially recognised as his representative. It remitted the case to the District Court.
28. On 12 April 2007 the Tsentralniy District Court annulled the prosecutor’s decision of 19 October 2006. It found that the applicant’s allegations of ill-treatment were corroborated by medical evidence and by witnesses. The prosecutor had given insufficient reasons for the refusal to open criminal proceedings.
29. On 28 May 2007 the Tsentralniy District prosecutor again refused to open criminal proceedings. He found it was not possible to establish with certainty that the applicant’s and his relatives’ injuries had been inflicted by the police.
30. The applicant’s mother challenged the decision before the Tsentralniy District Court. On 22 October 2007 the Tsentralniy District Court set aside the prosecutor’s decision, finding that the prosecutor had failed to correct the defects pointed out in the judicial decision of 12 April 2007. In particular, he had not conducted a further inquiry or given sufficient and convincing reasons for the refusal to open criminal proceedings.
31. On 31 March 2008 a deputy Prosecutor of the Volgograd Region referred the case to the Volgograd Regional Investigations Committee with a recommendation to carry out an additional inquiry. It was necessary to question the policemen, the applicant’s co-defendants and his neighbours and conduct other investigative measures.
32. On 9 June 2008 the Investigations Committee of the Tsentralniy District of Volgograd refused to open criminal proceedings against the policemen, repeating verbatim the decision of 28 May 2007. It appears that no additional enquiries were made.
33. On 4 September 2008 the Investigations Committee of the Tsentralniy District of Volgograd reconsidered its previous decision and decided to open criminal proceedings into the fact of the applicant’s ill-treatment by unidentified police officers.
34. On 3 October 2008 the applicant was granted victim status.
35. On 30 January 2003 the Voroshilovskiy District Court of Volgograd formally remanded the applicant in custody on charges of unlawful possession of weapons and forgery of identity documents. It found that the applicant did not deny that he unlawfully possessed weapons and that official seals had been found in his apartment. The court referred to the gravity of the charges, the applicant’s previous criminal record and the fact that he had no dependants, which gave reason to believe that he might abscond or interfere with the investigation.
36. The trial started on 25 November 2003.
37. On 6 April 2004 the Dzerzhinskiy District Court of Volgograd convicted the applicant as charged and sentenced him to three years’ imprisonment starting from 28 January 2003.
38. On 27 July 2004 the Volgograd Regional Court upheld the judgment on appeal.
39. On 28 January 2006 the applicant completed his sentence.
40. On 18 April 2003 the applicant was charged with inflicting serious injuries.
41. On an unspecified date the applicant’s case was joined with the cases of five other persons who had allegedly acted in conspiracy with the applicant.
42. On 20 October 2003 the applicant and his co-defendants were charged with organising an armed criminal gang, several counts of aggravated robbery, inflicting serious injuries and two counts of murder.
43. On 12 April 2004 the investigation was completed and six defendants, including the applicant, were committed for trial before the Volgograd Regional Court.
44. The defendants asked for a trial by jury.
45. On 20 April 2004 the Volgograd Regional Court fixed a preliminary hearing for 27 April 2004 to examine the request.
46. On 27 April 2004 the Volgograd Regional Court ordered that the defendants be tried by jury and fixed the opening date of the trial at 24 May 2004.
47. The hearings of 24 May, 28 June and 12 July 2004 were adjourned as a jury could not been formed.
48. On 14 September 2004 the jury was formed and the trial started on 29 September 2004.
49. Until the end of 2004 the court scheduled twenty hearings. Eight hearings were held as planned while five more hearings started but were interrupted in the middle and adjourned, as prosecution witnesses did not appear. Two hearings were rescheduled due to a power cut in the court building or to the absence of available courtrooms. Five hearings were postponed at the request of the defence.
50. In 2005 the court scheduled forty hearings. Sixteen hearings were held as scheduled. Eight hearings were postponed as a juror failed to appear and five hearings did not go ahead due to the absence of prosecution witnesses. Eleven hearings were adjourned at the request of the defence or because counsel for one of the defendants did not appear.
51. In 2006 the court scheduled thirty-six hearings. Sixteen hearings were held as scheduled. Eight hearings did no go ahead as a juror or prosecution witnesses did not appear. Twelve hearings were adjourned due to counsel’s absence or following a motion for adjournment by the defence team.
52. In 2007 the court scheduled thirty-one hearings. Thirteen hearings were held as planned. Eleven hearings were adjourned as the judge was ill, was on leave or was drafting judgments in unrelated cases, or because a juror did not appear. Seven hearings were postponed at the request of the defence team.
53. At the end of March 2008 the court scheduled thirteen hearings. Only three hearings were held as scheduled. Four hearings were adjourned at the request of the prosecutor. Three hearings did not go ahead as counsel for the victim was ill. Three hearings were adjourned because counsel for one of the defendants did not appear.
54. The proceedings are still pending before the trial court.
55. On 18 April 2003 the applicant gave an undertaking not to leave the town.
56. On 29 April 2003 the Tsentralniy District Court of Volgograd remanded the applicant in custody. The court referred to the gravity of the charge and the risk of the applicant’s interfering with the investigation.
57. On 23 June 2003 the Tsentralniy District Court extended the applicant’s detention until 10 September 2003, referring to the gravity of the charge and necessity of further investigation.
58. On 8 September 2003 the Tsentralniy District Court extended the applicant’s detention until 10 December 2003, referring to the gravity of the charge and the complexity of the case. It noted that the applicant had initially been bound by an undertaking not to leave his place of residence, but that that preventive measure had been considered insufficient in view of the gravity of the charges and the risk of his absconding.
59. On 4 December 2003 the Tsentralniy District Court extended the applicant’s and a co-defendant’s detention until 10 April 2004, referring to the need for an additional investigation, the gravity of the charges and the applicant’s unemployment. The court found that there was a risk of the defendants’ absconding or re-offending.
60. On 20 April 2004 the Volgograd Regional Court accepted the case for trial and held that all six defendants should remain in custody.
61. On 27 April 2004 the Volgograd Regional Court ordered that the defendants remain in custody pending trial.
62. On 13 October 2004 the Volgograd Regional Court extended the defendants’ detention until 12 January 2005, referring to the gravity of the charges.
63. The applicant appealed, claiming that he resided permanently in Volgograd and that there was no reason to believe that he would abscond or interfere with the proceedings. On 14 December 2004 the Supreme Court upheld the extension order on appeal. It found that the applicant had been charged with serious and particularly serious criminal offences and that his arguments were not sufficient to warrant the quashing of the extension order.
64. On 12 January 2005 the Volgograd Regional Court extended the defendants’ detention, referring to the gravity of the charges and the risk of pressure on witnesses and jurors.
65. In his grounds of appeal the applicant submitted that he had never put pressure on witnesses and that there was no danger of his hampering the court proceedings. On 1 March 2005 the Supreme Court upheld the extension order on appeal. It repeated verbatim its reasoning set out in the decision of 14 December 2004.
66. On 7 April 2005 the Volgograd Regional Court extended the defendants’ detention until 12 July 2005. The Regional Court found that, in view of the gravity of the charges, it was “opportune” to keep the defendants in custody. It rejected their requests to release them under an undertaking not to leave the town, as it could not exclude the risk of pressure on witnesses or jurors. The court found irrelevant the applicant’s argument that it was not necessary to extend his detention as he was currently serving his sentence under the judgment of 6 April 2004 and, for that reason, could not tamper with witnesses or threaten jurors. It noted that the purpose of the applicant’s detention was to ensure that the criminal proceedings were completed in good time. On 8 July 2005 the Supreme Court upheld the extension order on appeal.
67. On 29 June 2005 the Volgograd Regional Court extended the defendants’ detention until 12 October 2005. It found that the defendants might interfere with the proceedings, as they were charged with serious criminal offences, including being members of an armed criminal gang, supposedly organised by the applicant. On 31 August 2005 the Supreme Court upheld the extension order on appeal.
68. On 4 October 2005 the Volgograd Regional Court extended the defendants’ detention until 12 January 2006 for the same reasons as before.
69. On 5 July 2006 the Volgograd Regional Court extended the defendants’ detention until 12 October 2006 for the same reasons as before.
70. In his grounds of appeal the applicant complained that the extension order had been poorly reasoned and the court’s conclusions that he could abscond or put pressure on witnesses had been hypothetical and had not been supported by relevant facts. On 26 September 2006 the Supreme Court upheld the extension order on appeal. It held that the gravity of the charges was a sufficient reason for the defendant’s continued detention.
71. On 2 October 2006 the Volgograd Regional Court extended the defendants’ detention until 12 January 2007, referring to the gravity of the charges and the defendants’ “characters”. The court also indicated that the purpose of the detention was to eliminate any risk of the defendants’ absconding, re-offending or hampering the court proceedings.
72. The applicant appealed, claiming that the Regional Court had used a stereotyped formula to justify his detention and that its conclusions had been hypothetical. He also complained that he had not been given access to the materials submitted by the prosecution in support of their request for extension.
73. On 28 December 2006 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified. The defendants were charged with serious criminal offences, therefore they might abscond, re-offend or obstruct the proceedings. The allegedly excessive length of their detention, their poor health and permanent place of residence were not sufficient reasons to warrant release.
74. On 27 December 2006 the Volgograd Regional Court extended the defendants’ detention until 12 April 2007 for the same reasons as before.
75. On 10 April 2007 the Volgograd Regional Court extended the defendants’ detention until 12 July 2007 for the same reasons as before.
76. On 9 July 2007 the Volgograd Regional Court extended the defendants’ detention until 12 October 2007, finding that there was no reason to vary the preventive measure.
77. In his grounds of appeal the applicant submitted that the length of his detention had exceeded a reasonable time and asked the court to place him under home arrest. On 27 September 2007 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified.
78. On 11 October 2007 the Volgograd Regional Court extended the defendants’ detention until 12 January 2008, referring to the gravity of the charges and the risk of his absconding or intimidating the witnesses or jurors.
79. On 9 January 2008 the Volgograd Regional Court extended the defendants’ detention until 12 April 2008 for the same reasons as before.
80. On 8 April 2008 the Volgograd Regional Court rejected the applicant’s request to be released under an undertaking not to leave his place of residence and extended the defendants’ detention until 12 July 2008. The decision reads as follows:
“As the trial has not yet been completed, it is necessary to extend the defendants’ detention.
The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention.
However, in addition to the gravity of the charges – namely organisation of an armed gang under [the applicant’s] leadership and commission of assaults on citizens and murders – carrying a sentence of up to twenty years’ imprisonment for each of the defendants, the court also takes into account other factors.
Thus, the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors.
The defendants’ argument that their detention has been excessively long is not in itself sufficient to warrant release.
The defendants have not produced any material showing the existence of factors making impossible [sic] their stay in detention facility conditions.
The court is not convinced by the defendants’ argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension. The court has at its disposal only the materials from the criminal case file which had been studied by the defendants.
The court considers that the grounds for the detention of the defendants charged with serious and particularly serious criminal offences are relevant and sufficient. Their detention serves the interest of the society, as it prevents commission of similar criminal offences and ensures high-quality and effective examination of the present criminal case.
The criminal case file contains sufficient evidence against each defendant to justify an extension of their detention ...”
81. On 7 July 2008 the Volgograd Regional Court extended the defendants’ detention until 12 October 2008, repeating verbatim the decision of 8 April 2008.
82. The applicant appealed, complaining that the decision had been taken in his absence and that the court had relied only on the gravity of the charges against him. On 10 September 2008 the Supreme Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified.
83. On 10 October 2008 the Volgograd Regional Court extended the defendant’s detention until 12 January 2009, repeating verbatim the decision of 8 April 2008.
84. On 4 April 2003 the investigator impounded the applicant’s two cars as physical evidence in the criminal proceedings against him.
85. On 30 January 2006 the Dzerzhinskiy District Court of Volgograd ordered that the police return the cars to the applicant. The decision was not appealed against and became enforceable.
86. On 27 February 2006 the bailiffs opened enforcement proceedings.
87. On 26 April 2006 one of the cars was returned to the applicant’s mother.
88. On 29 August 2006 the other car, a Mercedes 230, was also returned to the applicant’s mother. However, it was immediately impounded again as physical evidence in connection with unrelated criminal proceedings opened at the request of its former owner, who had complained that the car had been stolen from him. It appears that the criminal proceedings are still pending.
89. On 6 September 2006 the bailiffs found that the judgment of 30 January 2006 had been enforced in full and terminated the enforcement proceedings.
90. Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment (Article 286 § 3 of the Criminal Code).
91. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days, upon receipt of such complaint, the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148).
92. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112 of CCrP).
93. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
94. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
95. After arrest the suspect is placed in custody “during the investigation”. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1-3). The period of detention “during the investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9).
96. From the date on which the prosecutor refers the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated up to the date of the judgment. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-103369
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ROTARU v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3;Violation of Art. 13
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1977 and lives in Taraclia.
6. On 14 February 2003 the applicant was arrested at his home by masked and armed police officers, who allegedly tortured him until he confessed to several crimes of theft and robbery.
7. The applicant lodged a complaint of ill-treatment by the police and asked the prosecutor's office to investigate. On 28 February 2004 his complaint was dismissed as unfounded by the Chişinău chief of police. The applicant challenged that decision before the prosecutor's office. On 11 August 2005 a prosecutor from the Chişinău prosecutor's office decided not to initiate criminal proceedings against the police officers, finding that there was no evidence of the applicant's ill-treatment or of any other unlawful act. The applicant challenged that decision before the investigating judge, who decided to forward it to the trial court for examination as part of the criminal proceedings against the applicant.
8. On 8 June 2005 the applicant was convicted by Rîşcani District Court. That conviction was upheld by the Chişinău Court of Appeal on 27 October 2005 and the Supreme Court of Justice on 15 March 2006. On 6 October 2008 the Supreme Court of Justice allowed an extraordinary appeal (recurs în anulare) by the applicant, but only in respect of reducing his sentence in accordance with a new law that was more favourable to him.
9. On 19 March 2003 the applicant was transferred to Chişinău Prison no. 13. Between 16 April and 2 November 2006 he was treated at the Pruncul prison hospital. He was then transferred to Soroca Prison no. 6, where he served the rest of his sentence.
10. The applicant made a number of complaints to the authorities that the conditions of his detention were inhuman. He received numerous replies from the Ministry of Justice, the Prosecutor General's Office and Parliament. Many of these replies noted that he had been found to be “healthy for all practical purposes” and not in need of medical assistance. Some of the letters also noted that, due to insufficient funding of the prison system, detainees were not provided with bed linen, and food was available in less than the minimum prescribed quantities. In a letter of 10 August 2004 the Prosecutor General's Office informed the applicant that it was aware that cell no. 24 in which he was detained was overcrowded and that not all its inmates had a bed and bed linen. The prison authorities were asked to remedy the situation. In a letter of 5 November 2004 the Ministry of Justice informed a group of nine detainees, including the applicant, that medical assistance was available when needed and that only minor repairs could be made to the cells, due to lack of funds; the Ministry was aware of the problems in ensuring the proper functioning of the prison system, and was taking all necessary measures to improve the situation. The Minister added that no detainees suffering from tuberculosis were being held in the nearby cell 24A. In April 2006 the applicant was diagnosed with tuberculosis.
11. In a letter to the Parliament dated 4 May 2004 the applicant complained that the cells in the prison were overcrowded, damp and full of parasitic insects. He also complained of a lack of legal information in the prison. This letter was forwarded to the Prison Department of the Ministry of Justice. In its reply of 8 June 2004 the Ministry acknowledged that the prison lacked legal information, and confirmed that after 7 April 2003 the applicant had been treated for piodermia and scabies. It also noted that the applicant was detained in a cell with fourteen beds and fifteen detainees.
12. In response to a complaint by the applicant on 14 February 2007, on 1 March 2007 the Ministry of Justice informed the applicant that under the applicable rules all detainees were provided with the minimum acceptable quantities of food. However, due to lack of funding, such items as meat, fish or dairy products were provided “within the limits of available funds”. Moreover, products such as eggs, butter and milk would be included on the menu in the near future.
On the basis of a doctor's prescription, increased quantities of food could be provided to detainees who were ill. On 14 June 2008 the applicant made another complaint that the rules on food to be served were being violated and asking for a transfer to the prison hospital because of his worsening state of health. It appears that he was not transferred to the hospital.
13. According to the documents submitted by the Government, the applicant was treated on a regular basis by various doctors when the need arose, as well as on a preventive basis. On 10 and 17 February and 28 March 2005 he refused to have X-ray examinations. When he did have such an examination, on 15 April 2006, he was diagnosed with tuberculosis and admitted to the Pruncul Prison Hospital. He received DOTS treatment there until 1 November 2006, when he was released – subject to a one-year period of supervision – after full recovery from his illness.
14. The relevant provisions of domestic law have been set out in Ostrovar v. Moldova, no. 35207/03, 13 September 2005; Sarban v. Moldova, no. 3456/05, 4 October 2005; and Becciev v. Moldova, no. 9190/03, 4 October 2005.
15. The Government submitted a list of laws, regulations, Ministerial orders and other acts or bills yet to be enacted aimed at improving various aspects of prison conditions and the medical treatment of detainees.
16. The Government annexed to their observations copies of judgments in the cases of Drugaliov v. the Ministry of Internal Affairs and the Ministry of Finance; Gristiuc v. the Ministry of Finance and the Penitentiaries' Department; Ipate v. the Penitentiaries' Department; and Ciorap v. the Ministry of Finance, the Ministry of Internal Affairs and the Prosecutor General's Office, all cases in which the applicants had been awarded compensation for ill-treatment and/or inhuman conditions of detention.
17. The relevant parts of the CPT report concerning the visit to Moldova between 20 and 30 September 2004 read as follows (unofficial translation):
“50. The CPT delegation again heard repeated complaints from persons charged with and convicted of administrative offences concerning the refusal of permission for them to receive visits or have contact with the outside world in EDPs.
The CPT reiterates (see paragraph 61 of the report on the 2001 visit) that, where persons awaiting trial are concerned, if it is necessary in the interests of the investigation to place restrictions on visits for some of them, the restrictions should be strictly limited in time and applied for the shortest period possible. In no circumstances should visits to a detained person by family and friends be prohibited for a prolonged period. If there is thought to be an ongoing risk of collusion, it is better to allow visits under strict supervision. ...
55. The situation in the majority of penitentiaries visited, in view of the economic situation in the country, remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of physical conditions and detention regimes.
Added to this is the problem of overcrowding, which remains serious. In fact, even though the penitentiaries visited were not operating at their full capacity – as is the case of Prison no. 3 in which the number of detainees was appreciably smaller than during the last visit of the Committee – they continued to be extremely congested. In fact, the receiving capacity was still based on a very unsatisfactory 2 m2 per detainee; in practice, this was often even less.
79. The follow-up visit to Prison no.3 in Chişinău revealed an unsatisfactory situation. The progress noted was in fact minimal, limited to some running repairs. The ventilation system had been repaired primarily thanks to the financial support of civil society (especially NGOs), and the creation of places for daily recreation had been made possible only as a result of contributions by the detainees and their families.
The repair, renovation and maintenance of cells are entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials. They must also obtain their own sheets and blankets, the institution being able to give them only used mattresses.
In sum, the conditions in the great majority of cells in Blocks I-II and the transit cells continue to be very poor indeed. ...
Finally, despite the drastic reduction in overcrowding, the rate of occupancy of cells is still very high, not to say intolerable.
83. Except in the Lipcani Re-education Colony for Minors, where the efforts made in this respect are to be highlighted, the quantity and quality of detainees' food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both the stocks of food and the menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no. 3, ...), the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is not surprising given the general state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...”
18. The relevant parts of the CPT report concerning the visit to Moldova between 14 and 24 September 2007 read as follows (unofficial translation):
“46. In September 2007, the Director of the Prison Department of the Ministry of Justice provided the delegation with detailed information on measures already taken or planned with a view to reforming the Moldovan prison system and implementing the CPT's recommendations. One particularly welcome outcome of these measures is the reduction of the country's prisoner population. At the time of the 2007 visit, the total number of prisoners stood at 8,033 (including 1,290 on remand), compared to 10,591 in 2004. This positive trend can be attributed to legislative changes in recent years, including the entry into force of a new Code of Execution of Sentences in July 2005 and the adoption of amendments to the Criminal Code and the Code of Criminal Procedure. As a result, there has been an increase in the number of conditional early releases, as well as a wider use of alternatives to imprisonment and a more selective application of remand custody by the courts.
Further, the implementation of the “Concept for reforming the penitentiary system in the period 2004-2013” has been supported by an increase in the budgetary allocation (from 75.8 mn Lei in 2004, to 166.1 mn Lei in 2007), as well as by a growing input of foreign aid. This has enabled, inter alia, the amelioration of the food provided to prisoners, an improvement of health care, and the carrying out of refurbishment works at several penitentiary establishments (e.g. No. 1 in Taraclia, No. 7 in Rusca and No. 17 in Rezina).
Last but not least, there has been an important shift in mentality through improved staff recruitment and training procedures. The delegation was informed that the directors of many penitentiary establishments had been changed in the last year, following a competition and a probation period. Further, new training programmes for staff had been developed, placing particular emphasis on human rights issues (see also paragraph 100).
47. The CPT can only welcome the above-mentioned measures taken the Moldovan authorities. Nevertheless, the information gathered by the Committee's delegation during the 2007 visit shows that much remains to be done. In particular, overcrowding continues to be a problem; despite the fact that all establishments visited were operating well under their official capacities, there was on average only 2 m² of living space per prisoner, rather than the standard of 4 m² provided for in Moldovan legislation.
The CPT is convinced that the only viable way to control overcrowding and achieve the standard of at least 4 m² of living space per prisoner is to adopt policies designed to limit or modulate the number of persons sent to prison. In this connection, the Committee must stress the need for a strategy covering both admission to and release from prison to ensure that imprisonment really is the ultimate remedy. This implies, in the first place, an emphasis on non-custodial measures in the period before the imposition of a sentence and, in the second place, the adoption of measures which facilitate the reintegration into society of persons who have been deprived of their liberty.
The CPT trusts that the Moldovan authorities will continue their efforts to combat prison overcrowding and in so doing, will be guided by Recommendation Rec(99)22 of the Committee of Ministers of the Council of Europe concerning prison overcrowding and prison population inflation, as well as Recommendation Rec(2003)22 on conditional release (parole).”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-85231
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DVORAK v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Marek Dvořák, is a Czech national who was born in 1982 and lives in Ustí Nad Labem. He was represented before the Court by his mother, Ms J. Vacková. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 November 1989, the Ústí nad Labem District Court (okresní soud) ordered the applicant’s father to pay monthly alimony of CZK 400 (EUR 15.30) to his mother.
On 27 November 1992 the applicant’s mother, acting on behalf of her son, requested the court to increase the monthly alimony to be paid for her son’s needs. In January 1994 the applicant’s father stopped paying the alimony. On 24 January 1996 the applicant’s mother renewed her request to increase the monthly alimony.
On 16 May 2000 the applicant reached the age of majority and could, therefore, act before the court in person.
On 23 July 2003 the District Court obliged the applicant’s father to pay, within three days of the coming into force of the judgment, the outstanding alimony in the amount of CZK 250,800 (EUR 9,592) which covered the period from 1 January 1994 to 31 July 2003, finding that this was necessary to ensure the upbringing of the applicant. On 29 August 2003 it rectified the amount of the outstanding alimony to CZK 157,800 (EUR 6,035).
On 3 December 2003 the Ústí nad Labem Regional Court (krajský soud), upon the applicant’s appeal of 15 October 2003, amended the District Court’s judgment ordering the applicant’s father to pay, within three days of the coming into force of the judgment, CZK 179,400 (EUR 6,861), being the outstanding alimony for the period from 1 January 1994 to 30 November 2003.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-69945
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MOLTENI AND GHISI v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicants were respectively born in 1943 and 1972 and live in Milan.
6. E.G., the first applicant's husband and the second applicant's father, was the owner of a flat in Milan, which he had let to R.M.
7. In a registered letter of 24 June 1985, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 29 December 1985 and asked him to vacate the premises by that date.
8. In a writ served on the tenant on 23 October 1985, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
9. By a decision of 5 December 1985, which was made enforceable on 14 December 1985, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 29 December 1986.
10. On 30 March 1987, the owner served notice on the tenant requiring him to vacate the premises.
11. On 17 April 1987, he informed the tenant that the order for possession would be enforced by a bailiff on 15 May 1987.
12. Between 15 May 1987 and 11 July 1996, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful, as, the owner was not entitled to police assistance in enforcing the order for possession.
13. On 14 July 1996, the owner died and the applicants inherited the flat and became part of the proceedings as heirs.
14. Between 12 November 1996 and 30 November 1999, the bailiff made eleven attempts to recover possession. Each attempt proved unsuccessful, as the applicants were not entitled to police assistance in enforcing the order for possession.
15. On 14 November 2000, the tenant died and the applicants recovered possession of the flat.
16. The relevant domestic law and practice is described in the Court's judgment in the case of Mascolo v. Italy (no. 68792/01, §§ 14-44).


ITEMID: 001-4648
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: AJAYI AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first and fourth applicants were born in 1992 and 1995 respectively and are both British citizens. Their mother, the second applicant, born in 1962, is a Nigerian citizen. The third applicant, husband to the second applicant, father of the fourth applicant and step-father to the first applicant, is a British citizen, born in 1960. Since the end of 1997 the family have returned from Ireland to live in the United Kingdom in Milton Keynes.
The applicants are represented by Nuala Mole, a lawyer working for the AIRE Centre in London. The facts may be summarised as follows.
A.
B, the second applicant, first entered the United Kingdom on 18 August 1990 having been granted leave to remain as a visitor for six months. On 16 December 1990, B was discovered by an immigration officer to have taken up paid employment in breach of her entry requirements and she was arrested by the immigration authorities. Later that same day the Notice of Intention to make a deportation order was signed. B lodged an appeal with the Adjudicator.
On 27 April 1991, B married F, the first applicant's father, a British citizen whom she had known for about three months. B applied for leave to remain as a spouse and dropped her appeal against the decision to deport. B became pregnant but was forced to leave the matrimonial home due to violence inflicted on her by F, and she moved into a hostel for battered women. On 10 February 1992, the first applicant was born. On 18 May 1992, B's application to remain on the basis of her marriage which had broken down was refused. A decree nisi dissolving the marriage was issued in October 1992. F contested paternity of the first applicant but the matter was proved by DNA testing. He has retained no contact with his daughter.
On 21 April 1992, a deportation order was signed by the Secretary of State against B. An application to revoke the order was refused on 29 October 1992. Leave to apply for judicial review of this decision was granted and the judicial review hearing took place on 12 May 1994. It was held that the Secretary of State had failed to take into account the rights of the first applicant, a British citizen, when making the decision not to revoke the deportation order. The matter was remitted back to the Secretary of State. On 5 October 1994, by letter, the Secretary of State made a fresh refusal to revoke the Deportation Order of 21 April 1992. In a letter sent by the Immigration and Nationality Department to B's solicitors, received on 10 October 1994, it was stated:
"The Secretary of State has considered the suggested difficulties which [the first applicant] might face in Nigeria and her rights as a British citizen and has balanced them against her mother's breach of the immigration control ... and remains of the view that there are insufficient grounds for revoking the deportation order."
On 20 October 1994, B married the third applicant, a British citizen whom she had known for some time. The Secretary of State was informed of B's marriage. In a letter dated 1 December 1994, B's solicitors informed the Home Office that B was pregnant. This letter apparently crossed in the post with a letter to B's solicitors dated 7 December 1994 from the Home Office which stated:
"[B's] marriage on 20 October 1994 to a British citizen gives her no right to remain in the United Kingdom and the Secretary of State is not prepared to grant her leave to remain on this basis ... removal directions have been deferred for a period of six weeks after which further steps will be taken to effect [B's] removal".
On 16 December 1994, representations were made by B's Member of Parliament (M.P.) to the Secretary of State informing him of B's pregnancy and the fact that she had developed fibroids which could lead to complications during childbirth, potentially requiring specialised medical supervision.

On 9 January 1995, the applicants' representatives were informed by the Home Office that no fresh decision had been taken in the light of the information concerning B's pregnancy. However, that same evening B was served with fresh removal directions for herself and the first applicant to travel to Nigeria on 29 January and was informed by the immigration officers that the directions had been set in full knowledge of the pregnancy. The removal arrangements were however deferred for the Secretary of State to consider the representations made by B's M.P. Shortly afterwards, in a letter dated 2 March 1995, the Parliamentary Under Secretary of State informed the applicants' M.P. that since medical facilities existed in Nigeria for B's condition no grounds existed to justify revoking the deportation order.
On 11 July 1995, the fourth applicant was born in the United Kingdom. On 24 September 1995, B was visited by immigration officers and two days later was served with a notice of variation of restrictions, obliging her to report to a police station on a weekly basis.
In May 1996, B, the second applicant, applied for a visa to travel to Ireland. While the visa application was still pending before the Irish authorities, removal directions were set by the Home Office for the second applicant to be returned to Nigeria on 12 June 1996. On 11 June 1996, following intervention by the applicants' representatives before the European Commission of Human Rights, the removal directions were deferred to allow the second applicant to obtain the visa. The second applicant, as the wife of an EC national, was granted a visa by the Irish authorities and in August 1996 all the applicants moved to Ireland. For some months, the third applicant was unsuccessful in his attempts to find employment there. The financial cost of the family's move to Ireland and the expenses incurred by the third applicant, who travelled to work in the United Kingdom each week, left the applicants with very little disposable income. They had limited personal savings. The visa granted to the second applicant to travel to Ireland provided no entitlement to social security assistance because the third applicant had failed to find employment there.
In a letter dated 13 August 1996 the Immigration and Nationality Directorate stated in reference to the second applicant being granted a visa to travel to Ireland:
"the Secretary of State remains of the intention to deport the second applicant to Nigeria should she fail to embark elsewhere".
In or around March 1997 the second applicant gave birth to a third child. At some time before April 1997 the third applicant obtained employment in Ireland at a much lower wage than he was earning in the United Kingdom.
In September 1997, the applicants applied to return to the United Kingdom as, under European Union law, after spending a qualifying period in Ireland they could return to the United Kingdom. The deportation order against the second applicant was revoked. On 3 October 1997, a travel visa was issued and the whole family returned to the United Kingdom at the end of 1997. On 15 January 1998, the second applicant applied for a United Kingdom residence permit under European Union law and a permit was issued on 8 May 1998 until 12 May 2003.
B. Relevant domestic law and practice
Section 3(5) of the Immigration Act 1971 provides that:
“A person who is not a British citizen shall be liable to deportation from the United Kingdom
(a) if, having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave ... .”
Section 24(1) of the Act provides:
“A person who is not a British citizen shall be guilty of an offence punishable on summary conviction with a fine...or with imprisonment ... or with both ... (b) if, having only a limited leave to enter or remain in the United Kingdom, he knowingly ... (ii) fails to observe a condition of the leave.”
Immigration Rules are made pursuant to Section 3(2) of the Act. The Immigration Rules HC 251 were applicable in the period June 1990 - 30 September 1994.
Paragraph 162 provides:
Paragraph 164 (which is repeated in the new Immigration Rules HC 395 in force from June 1994 onwards at § 364) states:
“In considering whether to give effect to a recommendation for deportation ... the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person is convicted; previous criminal record; compassionate circumstances; any representations received on the applicant’s behalf.”
Paragraph 166 provides:
“Deportation will normally be the proper course where the person has failed to comply with or has contravened a condition or has remained without authorisation. Full account is to be taken of all the relevant circumstances known to the Secretary of State including those listed in paragraph 164 before a decision is reached.”
The Secretary of State has issued guidance to those in his Department who determine cases involving marriage and children. The guidance is known as DP2/93. Paragraph 2 states:
“As a general rule deportation action under section 3(5)(a) or section 3(5)(b) (in non criminal cases), or illegal entry action should not be initiated or pursued where the subject has a genuine and subsisting marriage to a person settled in the United Kingdom if:
a) the marriage predates enforcement action; and
b) the marriage has lasted two years or more or, in the case of a common law relationship ... the couple have cohabited for two years or more ... .”


ITEMID: 001-114506
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ÖZSÜREN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre
TEXT: 1. The applicants, whose particulars are set out in the appendix, are Turkish nationals. They are the parents and siblings of Mr Muhittin Özsüren who disappeared in 1998. The applicants were represented before the Court by Mr Öztekin Erdönmez, a lawyer practising in Alanya.
2. and as they appear from the documents submitted by them, may be summarised as follows.
3. On 29 August 1998 Muhittin Özsüren was performing his military service in the town of Gelibolu when he went missing. No information was given to the family about his disappearance by the military authorities and the family became aware of it when his father Yaşar Özsüren – who is the first applicant – tried to contact him.
4. On 20 November 1998 Yaşar Özsüren petitioned the Gelibolu prosecutor and asked the prosecutor to find his son. On 30 November 1998 the prosecutor concluded that Muhittin Özsüren had not disappeared but gone absent without leave (AWOL), and closed the investigation. The prosecutor’s decision was communicated to Mr Özsüren on 17 December 1998.
5. In the meantime, and on subsequent dates, steps were taken by the military authorities to find Muhittin Özsüren who, in their opinion, had gone AWOL.
6. On 15 December 2004 the first applicant, Yaşar Özsüren, sent a letter to the commander of the Turkish Land Forces, and asked for his son to be found. Pursuant to Mr Özsüren’s request an administrative investigation was conducted at the military barracks where Muhittin Özsüren disappeared, but that investigation did not yield any results. The investigators recommended that military judges instigate a judicial investigation.
7. In 2005 the military authorities instituted a criminal case against Muhittin Özsüren for having gone AWOL, and issued a warrant for his arrest.
8. Nothing has been heard from Muhittin Özsüren since his disappearance and the criminal proceedings against him are still pending in absentia.


ITEMID: 001-98053
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TSAREVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1964 and lives in Magadan, the Magadan Region.
5. The applicant sued the Magadan Regional Hospital and the Magadan Town Children Hospital for medical negligence in respect of her minor son.
6. On 28 November 2001 the Magadan Town Court of the Magadan Region awarded the applicant 150,000 Russian roubles (RUB) of nonpecuniary damages and RUB 8 for the court fee against the Magadan Regional Hospital and dismissed the claims against the Magadan Town Children Hospital as unfounded.
7. On 22 January 2002 the Magadan Regional Court upheld the judgment on appeal. The award remained unenforced.
8. On 13 June 2002, upon the Magadan Regional Hospital's request, the Presidium of the Magadan Regional Court quashed by way of supervisory review the judgment of 28 November 2001, as upheld on 22 January 2002, in the part related to the award made in favour of the applicant, because the lower courts incorrectly assessed the facts of the case. The court remitted the case in that part for a fresh examination in the first instance and upheld the remainder of the lower courts' findings.
9. On 13 January 2002 the applicant lodged a request for annulment of the judgment of 28 November 2001 in the part concerning the Magadan Town Children Hospital's liability on account of discovery of the new circumstances, i.e. evidence of the Town Hospital's liability.
10. On 17 December 2003 the Magadan Town Court allowed her request, annulled the judgment of 28 November 2001 as amended by the ruling of 13 June 2002 in the part concerning the rejection of the applicant's claims against the Magadan Town Children Hospital and reopened the case.
11. On the same date the Town Court partially granted the applicant's claims against both defendants and awarded her RUB 80,000 to be paid by the Magadan Regional Hospital and RUB 80,000 to be paid by the Magadan Town Children Hospital in non-pecuniary damages.
12. On 3 February 2004 the Magadan Regional Court upheld the judgment on appeal and it acquired legal force.
13. On 24 May 2004 the Magadan Regional Hospital and on 26 October and 2 November 2004 December 2004 the Magadan Town Children Hospital each paid the non-pecuniary damages to the applicant in the amounts specified by the domestic court.
14. The judgment debt in the amount of RUB 8 awarded for the court fee on 28 November 2001, has not been enforced. According to the Government, since 2006 the authorities have made numerous attempts to contact the applicant and pay the awarded sum, but the applicant has not provided her banking details.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61026
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MEHEMI v. FRANCE (No. 2)
IMPORTANCE: 1
CONCLUSION: Preliminary objections rejected (victim);No violation of Art. 8;No separate issue under P4-2
JUDGES: Georg Ress
TEXT: 8. The applicant was born in Lyons in 1962 and lives in Villeurbanne.
9. The applicant lived in France from his birth until 28 February 1995 with all the members of his family, his father and mother and his four brothers and sisters.
10. On 14 May 1986 he married an Italian national who, according to him, now has French nationality, and three children of French nationality were born of the marriage.
11. Following his arrest for offences under drugs legislation (cannabis resin) in December 1989, the applicant was sentenced on 22 January 1991 to six years’ imprisonment. On 4 July 1991 the Lyons Court of Appeal upheld the sentence and ordered the applicant’s permanent exclusion from French territory.
12. After both the Lyons Court of Appeal and the Court of Cassation had dismissed his application for the exclusion order to be lifted, the applicant submitted an application (no. 25017/94) on 25 August 1994 to the European Commission of Human Rights (“the Commission”) against France under former Article 25 of the Convention. The case was referred to the Court by the Commission on 4 July 1996, and by the Government on 17 September 1996.
13. The exclusion order was enforced on 28 February 1995.
14. In a judgment of 26 September 1997, the Court held that there had been a violation of Article 8 of the Convention (Mehemi (no. 1), cited above). It found that the permanent exclusion order was disproportionate to the aims pursued. It found in particular that (pp. 197172, § 37)
“... in view of the applicant’s lack of links with Algeria, the strength of his links with France and above all the fact that the order for his permanent exclusion from French territory separated him from his minor children and his wife ... the measure in question was disproportionate to the aims pursued”.
15. On 21 October 1997 the applicant lodged an application for the exclusion order to be lifted with specific reference to the Court’s judgment of 26 September 1997.
16. By a judgment of 24 March 1998, the Lyons Court of Appeal converted the permanent exclusion order into a ten-year exclusion order, on the ground that an exclusion order limited in time no longer constituted a disproportionate interference with the applicant’s rights under Article 8 of the Convention.
17. The applicant appealed on points of law and applied for legal aid.
18. By a decision of 20 May 1998, the legal aid section of the Court of Cassation took a provisional decision to grant legal aid. However it then rejected the application on 10 June 1999, on the ground that there were no genuine grounds of appeal.
19. The Court of Cassation dismissed the appeal by a ruling of 26 May 1999.
20. On 21 October 1997 the applicant lodged an application for a pardon which was rejected on 19 July 1999.
21. On 11 October 1997 the applicant’s lawyer wrote to the Minister for Foreign Affairs asking what measures he intended to take following the Court’s judgment of 26 September 1997 and under what conditions his client would be able to return to France. On 22 October 1997 Mr Dobelle, Deputy Director of Legal Affairs at the Ministry for Foreign Affairs, informed him that he had consulted the Minister of Justice, who had jurisdiction over the lifting of the exclusion order, and the Minister of the Interior, who had jurisdiction over the issuing of residence permits, and that he would shortly be replying.
22. On 17 November 1997 Mr Dobelle sent the applicant’s lawyer a letter which included the following:
“Although the principle of res judicata precludes the authorities from issuing a residence permit to Mr Mehemi prior to the lifting of the order or the grant of the pardon, the French government wishes to put an early end to the interference with your client’s family life as found by the European Court of Human Rights. Accordingly it is willing to permit Mr Mehemi to return immediately to France, where he will remain subject to a compulsory residence order until either the exclusion order is lifted or he is pardoned.
The French consular services in Algiers will be instructed to issue Mr Mehemi with a visa as soon as he requests one.”
23. The applicant’s lawyer wrote to Mr Dobelle on 5, 16 and 24 December 1997 to ask whether there had been any developments. In his last letter, he noted that the applicant had been to the French embassy in Algiers several times but had been told that he could not be issued with a visa unless the appropriate instructions had been received. He also asked what steps needed to be taken to make sure that the visa was issued, lamenting the fact that the applicant had still not been able to return to France and observing that, on the basis of what the applicant had found out from the French embassy in Algiers, the officials concerned seemed to be “passing the parcel” from one service to another.
24. No visa having been issued by the beginning of February 1998, the applicant’s lawyer, after a number of letters and telephone calls, sent a fax on 3 February 1998 to the Algerian Visa Section of the Office for French Nationals Abroad and Foreigners in France of the Ministry of Foreign Affairs. By a letter dated 4 February 1998, that Office informed him that the applicant’s particular circumstances required a special visa to be issued which needed the Minister of the Interior’s prior consent, and that had not been forthcoming. On 10 February 1998 the Office sent the lawyer a fax worded as follows:
“Reference: situation of Mr Ali Mehemi
I refer to your fax of 3 February 1998, my fax of 4 February 1998, and your fax of 9 February 1998.
As soon as you were kind enough to send me a copy of your client’s passport, the Algerian Visa Section referred the matter to the appropriate services of the Ministry of the Interior.
For the name of the person dealing with this file, I suggest that you contact the Office of Public Freedoms and Legal Affairs of the Ministry of the Interior who will be able to give you the necessary information.”
25. On 20 February 1998 the Algerian Visa Section informed the lawyer that it had just received the Minister of the Interior’s consent and that instructions had accordingly been given to the consulate in Algiers.
26. Having obtained a special visa on 25 February 1998, the applicant returned to France a few days later. On 6 March 1998 Mr Dobelle sent the applicant’s lawyer a letter worded as follows:
“As you are no doubt aware, our Consulate General in Algiers issued a visa to Mr Mehemi on 25 February. Mr Mehemi will be subject to a compulsory residence order in France until the exclusion order against him is lifted or he is pardoned.
Mr Mehemi’s return to France thus brings this matter to a satisfactory conclusion, in accordance with the judgment of the European Court of Human Rights.”
27. Meanwhile, on 20 February 1998, the Minister of the Interior had issued an order requiring the applicant to reside in the Rhône département, in a place to be determined by the prefect. It included the following passage:
“Whereas Mr Ali Mehemi Ali was permanently excluded from French territory by a judgment of the Fourth Division of the Lyons Court of Appeal on 4 July 1991 ...
Section 1: Until such time as he is able to comply with the order permanently excluding him from France, the above-mentioned person shall reside where required to by the prefect of the Rhône département.
Within the territory of this département, he shall periodically report to the police or the gendarmerie.
Section 2: The prefect of the Rhône département shall be responsible for serving and enforcing this order.”
28. The order was served on the applicant in person on 18 March 1998 at 8.30 a.m. The notice accompanying the order listed the possibilities of appeal. Further to that order, the prefect of the Rhône département issued an order dated 25 March 1998 requiring the applicant to reside in the precise area of the Lyons city district (arrondissement) and to report twice a month to the police station at Villeurbanne where he was then living.
29. The applicant was subsequently issued with a provisional residence permit for six months dated 21 April 1998 and expiring on 20 October 1998. The permit stated that he was authorised to pursue an occupation and was required to reside in the Rhône département by ministerial order of 20 February 1998 and prefectoral order of 25 March 1998. The provisional residence permit was then systematically renewed when it was about to expire, on 13 October 1999 until 12 April 2000, on 7 April 2000 until 6 October 2000, and on 30 March 2001 until 29 September 2001. It was last extended on 28 September 2001.
30. On 27 July 2001 the applicant’s lawyer asked the prefect of the Rhône département to issue the applicant with a ten-year residence permit, on the ground that the exclusion order had expired (see paragraph 31 below). Not having received a reply, he sent another letter to the prefect on 28 November 2001 in which he construed the lack of response as an implied refusal and asked the prefect to state his reasons.
31. On 31 October 2001 the Minister of the Interior issued an order revoking the ministerial residence order of 20 February 1998 against the applicant. The revocation order stated among other things that “the permanent exclusion order made initially by the Lyons Court of Appeal on 4 July 1991, which was reduced to ten years by a judgment of 24 March 1998, is deemed to have expired on 10 July 2001”.
32. On the same day, the minister sent a certified copy of the revocation order to the prefect for the Rhône-Alpes region, the prefect of the Rhône département, requesting him to serve it on the applicant with a “very formal warning”. He also requested the prefect to issue the applicant with a residence permit valid for one year endorsed with the mention “salaried”. The minister enclosed a letter addressed to the applicant, which included the following passage:
“Following a fresh examination of your file, I have decided by order of today’s date to revoke the order for your compulsory residence in the Rhône département made on 20 February 1998, so that you may live peacefully on French territory.
I wish however to warn you formally that if you again fail to abide by our laws and regulations, that will indicate that you are still a threat to public order. I would then ask the prefect for the Rhône-Alpes region, the prefect of the Rhône département, to make the necessary arrangements to bring expulsion proceedings against you.”
33. By a letter of 13 December 2001, the prefect informed the applicant’s lawyer of both the revocation of the ministerial order and the proposed ministerial warning. The police served the 31 October 2001 revocation order on the applicant on 4 January 2002, and he was also invited to go to the prefecture in order to formalise his administrative status.
34. The applicant went to the prefecture on 8 January 2002. His application for a one-year residence permit endorsed with the mention “salaried” was registered and he was issued with a receipt for the application.
35. In reply to the letter of 28 November 2001, the prefect reminded the applicant’s lawyer of the decisions served on the applicant on 4 January 2002. He added:
“Mr Mehemi went to the prefecture on 8 January 2002 in order to apply for a one-year residence permit endorsed with the mention ‘salaried’.
Pending the issue of his renewed passport, he has been given a receipt valid for three months endorsed with a work permit.
On presentation of that document, I shall issue him with the above-mentioned residence permit.”
36. On 2 April 2002 the applicant was issued with a new receipt for a residence permit application valid until 1 July 2002. On 1 July 2002, a new receipt valid until 2 October 2002 was issued.
37. On 2 October 2002 the applicant went to the prefecture again, still without his passport, which had not yet been renewed by the consular services in Algeria. His residence permit was extended until 31 December 2002.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-107280
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: UBLEIS v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicant, Ms Gabriele Übleis, is an Austrian national who lives in Prambachkirchen. She was represented before the Court by Mr F.X. Berndorfer, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of two plots of land of about six-thousand square metres in the Wilhering municipality. The property, plot nos. 23 and 24 on the Wilhering land register, had been designated as building land since the early 1950s. By contract of 27 November 1995 the applicant’s parents transferred the property to her. At the same time they transferred other plots of building land to her sister. The applicant and her sister considered that the plots of land each of them had received were of approximately equal value and therefore made written statements waiving their right to a compulsory portion of their parents’ estate.
Meanwhile, on 1 January 1994 the new Upper Austrian Land Planning Act (Raumordnungsgestz – hereinafter, “the Land Planning Act”) had entered into force. Its section 39(3) had obliged all municipalities to review existing area zoning plans (Flächenwidmungspläne) within five years.
On 16 February 1995 the Wilhering Municipality, pending the review of the area zoning plan, issued a temporary building prohibition (Bausperre) for parts of the municipal area. Pursuant to the Upper Austrian Building Act the temporary building prohibition is a decree (Verordnung) which has to be made public. Based on the recommendations of land planning expert E., the review of the area zoning plan concerned forty-seven plots of land, including the two plots of land at issue, which were at that time still owned by the applicant’s parents. The temporary building prohibition was extended twice.
On 23 November 1998 the mayor of the Wilhering municipality informed the applicant that a change in the area zoning plan was envisaged which would lead to the designation of her two plots of land as green land (Grünland). He gave her the opportunity to submit written comments, which she did on 19 January 1999. She opposed the change, giving arguments for maintaining the designation of her plots of land as building land.
By a decision of 4 February 1999 the Wilhering municipal council (Gemeinderat) amended the area zoning plan. As a result the applicant’s property was designated as green land. In its considerations the municipal council set out on a general level that the reserve of building land by far exceeded the projected need. In respect of the applicant’s plots of land, it noted in particular:
“The objection of Ms Gabriele Übleis, owner of plot nos. 23 and 24 [...] should be rejected, since in accordance with Section 21 of the Upper Austrian Land Planning Act only areas that are suitable for construction based on their natural and infrastructural conditions may be classified as building land. Such land is required in order to meet the demand of the municipality for building land which has been projected by the municipality for a planning period of 5 years. Areas that are unsuitable for appropriate construction on account of their natural conditions may not be designated as building land. This applies also to areas whose development would entail unreasonable costs.
In the opinion of the local planning expert and author of the plan, the plots of land at issue lack suitability as building land (just like the rest of the areas re-designated as green land in accordance with the area zoning plan amendment) for the following reasons: building development would entail unreasonable costs owing to the steep gradient of the slope; the suitability of the property as a housing area is limited on account of the emission load of the Eferdinger Federal Road; because of its position on a northern slope with adjacent woodland, only reduced insulation is possible; in general, construction on the steep Kürnberg hills descending to the river Danube would violate section 2(1) (protection of the environment) and paragraph 10 (preservation of the typical settlement structure and landscape) of the Upper Austrian Land Planning Act.”
Of the forty-seven plots of land concerned by the review of the area zoning plan, a total of thirty-seven were re-designated as green land.
The area zoning plan amendment was approved on 30 March 1999 by the Upper Austrian Regional Government (Landesregierung), acting as the supervisory authority for the municipality, and entered into force on 10 April 1999.
Under Austrian law a land owner cannot challenge an area zoning plan directly before the Constitutional Court, but has to raise the question of its lawfulness in the context of administrative proceedings, for instance in proceedings on a request for a building permit (Baugenehmigung) or a building-site permit (Bauplatzbewilligung) (see relevant domestic law below).
On 10 April 2002 the applicant applied to the Wilhering municipality for a permit for a building site for the two plots of land at issue. She claimed in essence that the change of designation of her property had been unlawful. In support of this argument she submitted an opinion by a land planning expert, N., dated 14 February 2002. The conclusion of the latter was that the two plots of land were suitable for construction.
The mayor refused the application by a decision of 24 May 2002 noting that the granting of a building-site permit would be contrary to the property’s designation as green land.
The applicant appealed on 12 June 2002. She referred to the written comments she had made in the proceedings concerning the amendment of the area zoning plan and complained that the authority had failed to examine her arguments. Furthermore, she alleged that the change of designation was unlawful for the following reasons: Firstly, the re-designation of her property as green land was not an appropriate means of achieving the declared aim of reducing the despoliation of the landscape, given the position of her property close to the centre of the municipality. Secondly, changes in the area zoning plan were subject to restrictions. Only very significant public-interest reasons could prevail over the individual interest of preserving acquired rights. The main aim pursued by the change to the area zoning plan, namely to reduce the excess of building land, did not have such preponderant weight. Thirdly, there were no new facts which would justify the change of designation, since the excess of building land had existed for decades and had been aggravated by the municipality itself newly designating numerous plots of land in the past. Fourthly, the authority had failed to take the applicant’s interests into account. Her property had suffered a very considerable loss of value for which she had not been compensated under Section 38 of the Upper Austrian Land Planning Act. Finally, no uniform criteria had been applied as regards the re-designation of building land as green land, since other plots of land in a comparable position and with comparable topography, including two plots of land adjacent to hers, had not been re-designated.
By a decision of 7 November 2002 the Municipal Council dismissed the applicant’s appeal. It noted that the applicant’s arguments concerned the underlying decision to amend the area zoning plan and could not be taken into account in the proceedings at issue.
The applicant filed an objection (Vorstellung) against this decision in which she repeated the arguments she had submitted in her appeal.
On 17 February 2003 the Upper Austrian Regional Government dismissed the applicant’s objection. It noted that the area zoning plan was a decree, that is, a binding act of subordinate legislation. While the applicant was entitled to submit arguments as regards its lawfulness, it was not for the administrative authorities but for the Constitutional Court (Verfassungsgerichthof) to examine those arguments.
The applicant lodged a complaint with the Constitutional Court against the refusal of the building-site permit, challenging the lawfulness of the underlying area zoning plan. She claimed that the building authorities’ decisions violated her right to property and the principle of non-discrimination in that the refusal of a building-site permit had been based on an unlawful area zoning plan. In that regard, she repeated all the arguments she had already submitted in the course of the proceedings.
On 9 December 2004 the Constitutional Court dismissed the applicant’s complaint. It noted that the municipality had based the re-designation of the applicant’s property on the undisputed excess of building land and on its lack of suitability for construction. It had adduced specific reasons for finding that the applicant’s plots of land were unsuitable for construction, such as their position on a steep slope, the unreasonable costs of development because of that position, the interests of environmental protection in preserving the woods on the slope, the emission load of the nearby Federal Road and the limited possibilities for insulation. The expert opinion of N. submitted by the applicant had supported her position only in part. In particular, it had not contested the unreasonable costs of developing the property because of its position on a steep slope. Nor had it contradicted the municipality’s argument in respect of emissions from the nearby Federal Road.
In sum, the municipality had rightly come to the conclusion that the previous designation of the applicant’s property as building land was contrary to the principles laid down in section 2(1) and (10) of the Land Planning Act. In such a case Section 39(3) of the Land Planning Act obliged the municipality to change the designation of the plots of land at issue without a further weighing of interests as this task had already been carried out by the legislator. The question whether or not it was lawful to maintain the designation of two neighbouring plots of land as building land did not fall to be examined in the present proceedings.
The Constitutional Court’s decision was served on the applicant’s counsel on 3 February 2005.
In Upper Austria land planning is governed by the 1994 Upper Austrian Land Planning Act. Area zoning plans are issued by the municipalities. Under Austrian law area zoning plans and any amendments thereto are regarded as decrees, that is, binding acts of subordinate legislation. The lawfulness of decrees can only be reviewed by the Constitutional Court (Article 139 of the Federal Constitution).
Proceedings in which area zoning plans are issued or amended are not ordinary administrative proceedings and the land owners affected by them, while having the right to submit comments, are not parties to the proceedings. They are not entitled to challenge the area zoning plan directly before the Constitutional Court if it is possible to institute administrative proceedings, for instance building proceedings.
If an area zoning plan is the basis for refusing a building permit or a building-site permit, which is a preliminary decision on the suitability of land for construction purposes, the persons concerned are expected to assert their rights in the building proceedings, in which they can ultimately challenge the lawfulness of the area zoning plan before the Constitutional Court.
The relevant provisions of the 1994 Upper Austrian Land Planning Act (Raumordnungsgesetz) state as follows:
“(1) The objectives of the Land Planning Act are, in particular:
1. protecting the environment against adverse impact as well as safeguarding or restoring a natural balance;
...
10. preserving and shaping settlement structures, including the development of settlements, and preserving typical settlement structures and landscapes ...”
“(1) In implementing its tasks of local land planning, each municipality shall issue the area zoning plan and the local development concept by a decree, and manage and review them at regular intervals. The local development concept shall be prepared for a planning period of ten years, the area zoning plan for a planning period of five years.”
“(1) Only such areas may be designated as building land as are suited for construction based on their natural and infrastructural conditions. They have to meet the demand for building land of the municipality projected by the municipality for a planning period of five years. Areas lacking suitability for adequate construction owing to natural conditions (e.g. ground-water level, flood hazard, rock fall, soil characteristics, risk of avalanche) may not be designated as building land. This applies also to areas whose development would entail unreasonable costs ...”
“(1) All areas not designated as building land or transport areas shall be designated as green land.”
“(3) After the entry into force of this Regional Act, each municipality shall review the area zoning plan and adopt an area zoning plan together with the local development concept no later than five years after the entry into force of the Regional Act. Furthermore, the area zoning plan shall be reviewed to ascertain whether the building land areas designated in the area zoning plan but not yet used for the designated purpose still conform to the principles of this Regional Act. Building land areas whose designation contravenes the aforementioned principles shall be designated as building land or as green land, as appropriate, by changing the area zoning plan.”
Under section 38(1) and (2) of the Land Planning Act, compensation for a change of designation is only available in specific circumstances, essentially when the owner of land relying on the designation of the property as building land has already incurred costs in view of intended construction which is then made impossible by the amendment of the area zoning plan, or when a plot of land which is suited for construction within the meaning of section 21(1) and is entirely or mostly surrounded by building land is not designated as building land and suffers a loss of value as a result.