ITEMID: 001-103350
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF PREMININY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicants were born in 1981 and 1953 respectively and live in the town of Surgut in the Tyumen Region. They are son and father.
5. On 19 January 2002 criminal proceedings were instituted against the first applicant. He was suspected of having broken into the online security system of an American bank, Green Point Bank (hereafter – the Bank), and having stolen the Bank’s client database. According to the prosecution, in November 2001 the first applicant contacted the Bank using a fake name. He demanded money in exchange for a promise not to publish the Bank’s database on the Internet. The Bank agreed to pay and the first applicant provided it with his real name and address. At the same time he published a part of the Bank’s database on the Internet. The Bank transferred 10,000 United States dollars to the first applicant.
6. At the beginning of April 2002 the first applicant was charged with aggravated extortion. He gave a written undertaking not to leave the town.
7. On 23 April 2002 a deputy prosecutor general of the Russian Federation authorised the first applicant’s placement in custody on the ground that he had been charged with a serious criminal offence and was liable to pervert the course of justice, reoffend or abscond.
8. The first applicant was arrested on 7 May 2002 and placed in a detention ward at Surgut police station. On the following day he lodged a complaint with the Surgut Town Court challenging the grounds for his placement in custody. His lawyer submitted a separate complaint. On 9 May 2002 the first applicant was transferred to a detention facility in Tyumen.
9. On 24 May 2002 the Surgut Town Court declined to examine the first applicant’s and his lawyer’s complaints, noting that it did not have territorial jurisdiction over the matter. The Town Court advised the first applicant and his lawyer to lodge complaints with a court in Yekaterinburg.
10. On 11 July 2002 the first applicant’s counsel, Mr Ch., lodged a complaint with the Surgut Town Court arguing that the first applicant’s arrest and detention were unlawful.
11. On 17 July 2002 the Surgut Town Court declined to examine the complaint giving the same reasons as those cited in its decision of 24 May 2002. On 20 August 2002 the Khanty-Mansi Regional Court upheld the Town Court’s findings.
12. On 22 July 2002 Mr Ch. complained to the Surgut Town Court that the first applicant’s arrest and subsequent detention were unlawful and asked for his release.
13. Three days later the Surgut Town Court declined to examine the complaint, once again relying on a lack of territorial jurisdiction. On 20 August 2002 the Khanty-Mansi Regional Court, acting in its appellate jurisdiction, confirmed the lawfulness of the Town Court’s decision.
14. On 25 July 2002 the Sverdlovsk Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and issued an expert report. The relevant part of the report read as follows:
“... the psychiatric examination concludes that [the first applicant] is showing signs of brief reactive psychosis.
The examinee reports that the illness emerged after the offence, during his stay in the temporary detention facility where he developed strong feelings of fear and hopelessness accompanied by psychologically understandable feelings of depression as a result of additional traumatic experiences, systematic ill-treatment, and physical and psychological abuse inflicted on him by his fellow inmates. There is no information in the medical record concerning [the first applicant’s] mental health during his stay in the hospital of the temporary detention facility with concussion and broken ribs.
...
[The first applicant] cannot take part in any investigative or judicial activities.
[The first applicant] needs to be placed in a psychiatric hospital for compulsory treatment ... until his recovery from the psychosis ...”
15. On 28 September 2002 a deputy prosecutor of Surgut sent the case to the Surgut Town Court for trial. He noted that the first applicant was mentally ill, presented a danger to public safety and was liable to cause substantial damage. The deputy prosecutor argued that compulsory measures of a medical nature ought to be applied to the first applicant.
16. On 18 October 2002 the Surgut Town Court fixed the first hearing for 4 November 2002. It also examined a request from the second applicant seeking his son’s release or, alternatively, his transfer to a psychiatric hospital. The Town Court decided that the first applicant was to remain in custody because he had been charged with a serious criminal offence. However, he was to be transferred to the Tyumen Regional Psychiatric Hospital in view of the state of his mental health. The first applicant was placed in that hospital on 4 December 2002.
17. On 22 November 2002 the Presidium of the Khanty-Mansi Regional Court considered, by way of supervisory review, that on 24 May 2002 the Surgut Town Court had incorrectly applied the law and had wrongfully concluded that it had not had territorial jurisdiction over the matter of the first applicant’s detention. The Presidium quashed the decision of 24 May 2002 and sent the case to the Town Court for fresh examination.
18. In the meantime, on 3 December 2002 the Surgut Town Court found that the first applicant had committed aggravated extortion but absolved him of criminal responsibility finding that he was mentally incapacitated. The Town Court ordered that compulsory measures of a medical nature should be applied to the first applicant and that he should be placed in a psychiatric hospital for general care. The judgment was not appealed against and became final.
19. On 10 December 2002 the Surgut Town Court declined to re-examine the complaints of the first applicant and his lawyer that his arrest and detention were unlawful. The Town Court held that on 3 December 2002 it had examined the criminal case, found that the first applicant had committed aggravated extortion and ordered that he be placed in a psychiatric hospital. It had no competence to examine the subject of the applicant’s detention after the criminal case had been decided on its merits.
20. On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review and giving the same reasons as it had given on 22 November 2002, quashed the decisions of 25 July and 20 August 2002 by which the lawyer’s request of 22 July 2002 for the first applicant’s release had been refused. The Presidium ordered an examination of the detention on its merits.
21. On 5 February 2004 the Surgut Town Court, having re-examined the lawyer’s complaint concerning the lawfulness of the first applicant’s detention, dismissed it finding that the criminal case had already been closed, the first applicant was being detained by virtue of the final judgment and the Town Court could no longer examine the matter.
22. On 30 March 2004 the Khanty-Mansi Regional Court quashed the decision of 5 February 2004 and ordered a fresh examination of the applicant’s detention. The relevant part of the decision read as follows:
“By virtue of Article 123 of the Russian Code of Criminal Procedure, parties to criminal proceedings and other persons, in so far as their interests have been affected by procedural actions and decisions, can appeal against [the] actions and decisions of a pre-trial investigation body, an investigator, an interviewing officer, a prosecutor or court in accordance with the procedure established by the present Code.
Article 125 of the Russian Code of Criminal Procedure sets forth the judicial procedure for an examination of such complaints.
Examination of the presented materials shows that the [town] court did not in fact examine the grounds for [the first applicant’s complaints] or check the lawfulness of the actions and decisions of the indicated persons.
The record of the court hearing does not show which materials were examined by the court.
The [town] court’s conclusion that the subject of the complaint no longer existed was not based on law; the fact that a court has given a judgment in a criminal case cannot serve as a ground for declining to examine the lawfulness of procedural actions and procedural decisions taken in the course of that criminal case and affecting the [first applicant’s] interests, [and cannot serve as a ground] for declining to examine the [first applicant’s] complaints.
Moreover, that complaint was lodged with the court long before the examination of the criminal case by the court.”
23. On 19 May 2004 the Surgut Town Court found that the first applicant’s arrest and subsequent detention had been lawful. The first applicant’s lawyer attended the hearing. However, the second applicant, despite having been properly summonsed, defaulted and did not notify the Town Court of the reasons for his absence.
24. On 21 July 2004 the Khanty-Mansi Regional Court upheld the decision on appeal.
25. On 17 June 2003 Lebedyovskaya Psychiatric Hospital examined the first applicant and recommended that he be released from hospital because he no longer presented a danger to himself or the public. On 30 June 2003 the Director of Lebedyovskaya Psychiatric Hospital applied to the Surgut Town Court seeking the release of the first applicant.
26. On 4 July 2003 the Surgut Town Court sent the request to the Zavudkovskiy District Court, finding that the latter had territorial jurisdiction over the matter.
27. On 8 October 2003 the Zavudkovskiy District Court returned the case file to the Surgut Town Court noting that the matter should be examined in Surgut.
28. On 12 March 2004 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review, quashed the decision of 4 July 2003 and ordered the Surgut Town Court to examine the request for the first applicant’s release.
29. On 13 July 2004 Tyumen Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and considered that the conclusions reached by Lebedyovskaya Psychiatric Hospital on 17 June 2003 had been incorrect and that the first applicant should remain in a psychiatric hospital for further compulsory medical treatment.
30. On 2 September 2004 the Surgut Town Court dismissed the request for the release of the first applicant on the ground that the expert report of 17 June 2003 had been inconclusive, that on 13 July 2004 it had been found that the first applicant was still suffering from schizophrenia and had been considered in need of further compulsory psychiatric treatment. The decision was not appealed against and became final.
31. On 2 February 2005, following a new psychiatric examination of the first applicant and a request from Tyumen Regional Psychiatric Hospital, the Surgut Town Court authorised his release from hospital.
32. At the end of May 2002 the first applicant was transferred to Yekaterinburg no. 1 temporary detention facility and placed in cell no. 131. The cell housed four inmates. According to the first applicant, he was systematically humiliated and ill-treated by warders and detainees alike. On 10 June 2002 his cellmates, acting upon an order of the administration of the detention facility, severely beat him up with long wooden sticks which they had received from the warders.
33. The Government disputed the first applicant’s version of events, arguing that on the night of 9 June 2002 the first applicant had initiated a conflict with one of his cellmates, calling him names. A fight broke out and the first applicant received injuries. The Government insisted that the first applicant’s allegations of the authorities’ instigating role in the dispute were not supported by any evidence.
34. The Government submitted medical certificate no. 226 drawn up in the detention facility on 10 June 2002 following an examination of the first applicant by a prison doctor. It appears from the certificate that the prison doctor diagnosed the first applicant with concussion and numerous abrasions to his arms, legs, back, shoulders, face and ears and prescribed him bed rest. The doctor also noted that the first applicant had received those injuries over a period of a week in cell no. 131. The first applicant was transferred to the medical unit of the detention facility on the afternoon of 10 June 2002.
35. According to a copy of the facility’s logbook produced by the Government, on the morning of 10 June 2002 an officer on duty made an entry in the log of an incident involving the first applicant and listed his injuries.
36. On 11 June 2002 the acting director of detention facility no. 1, having examined the information about a possible offence committed against the first applicant, refused to institute criminal proceedings. He found that on 10 June 2002 the first applicant had had a heated argument with one of his cellmates, Mr K. The latter had kicked the first applicant once in the stomach, as a result of which the first applicant had fallen, having hit his head and back against a wall. The first applicant had got back to his feet and attempted to strike back, but was stopped by two other cellmates who broke up the fight. The director of the facility also noted that, when questioned about the incident, the first applicant had confirmed that he had verbally assaulted Mr K. and asked that criminal proceedings against the latter not be instituted. The two remaining cellmates gave similar descriptions of the incident. A copy of the director’s decision of 11 June 2002 was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor’s Office to verify that the domestic law had been properly applied in the case.
37. In April 2004 the second applicant was appointed the legal guardian of the first applicant. On 21 April 2004 he complained to the Sverdlovsk Regional Prosecutor’s Office about the decision of 11 June 2002.
38. On 16 August 2004 the Sverdlovsk Regional Prosecutor quashed the decision of 11 June 2002 finding that it had been issued “prematurely” and ordered an additional investigation into the first applicant’s complaints. The prosecutor also noted that the first applicant suffered from a serious mental illness impairing his legal capacity and that in those circumstances his alleged request that no proceedings be instituted against cellmate K. should not have had any legal implications.
39. On 18 August 2004 the administration of the temporary detention facility refused to institute criminal proceedings in respect of the first applicant’s complaint of ill-treatment on the ground that the statutory limitation period had expired. That decision was quashed on 14 December 2004 and an additional investigation was authorised.
40. On 24 December 2004 an assistant to the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against Mr K. because the statutory limitation period of two years had expired on 10 June 2004 and Mr K. could no longer bear criminal responsibility. In his decision the assistant also listed statements by warders who had insisted that the first applicant had had a dispute with Mr K. The latter had beaten up the first applicant. The fight had been stopped by the two other cellmates. The warders had not asked the cellmates to threaten the first applicant or to beat him up. At the same time, Mr K. retracted his previous statements and claimed that he had not beaten up the first applicant. The other two inmates were not questioned because their whereabouts were unknown. A copy of the decision of 24 December 2004 was served on the second applicant.
41. The Government submitted that on 29 August 2007 the decision of 24 December 2004 had been quashed by a higher-ranking prosecutor and the investigation was now pending.
42. The first applicant complained that he had been systematically beaten up by warders. He claimed that on 14 June 2002 the warders had broken three of his ribs.
43. The Government argued that on the night of 14 June 2002 the first applicant had fallen over on his way to the lavatory, breaking two ribs.
44. As can be seen from a copy of the first applicant’s medical record drawn up in detention facility no. 1 and submitted by the Government, on 14 June 2002 the first applicant was examined by a neurologist and the head of the detention facility’s medical unit. They noted an injury to the first applicant’s chest and authorised a chest X-ray. The X-ray was taken on 18 June 2002 and showed that the first applicant had two broken ribs on his right side. Four days later the first applicant was again examined by the facility doctors, who noted his anxious state. The doctors recorded that the first applicant had refused to remain in his cell, had been disorientated and inert, and had not given proper responses to their questions. Following a further medical examination on 24 June 2002 the doctors noted that the first applicant had had difficulty formulating sentences and concentrating, that his reactions had been slow and that he had constantly stared straight ahead. A psychiatric examination of the first applicant was recommended.
45. On 21 June 2002 the director of the facility closed an investigation into the cause of the first applicant’s injury, finding that he had broken his ribs when falling over in a cell on 14 June 2002. The decision was based on statements by the first applicant’s three cellmates who had insisted that no force had been used against him. The director also noted that it had been impossible to interview the first applicant as his behaviour had been strange and he had not answered the questions put to him owing to the poor state of his mental health. A copy of the director’s decision was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor for verification.
46. On 21 April 2004 a deputy to the Sverdlovsk Regional Prosecutor quashed the decision of 21 June 2002 and ordered an additional investigation, having found that it was necessary to carry out a forensic medical examination of the first applicant and to question his cellmates and the warders. The deputy prosecutor stated that his decision was a response to information received on 21 June 2002 from the director of detention facility no. 1 about a possible criminal offence.
47. On 30 April 2004 a senior inspector, having concluded that on 14 June 2002 the first applicant had slipped, fallen to the floor and injured himself, found that the complaint was unsubstantiated. The decision was based on evidence collected during the internal investigation carried out by the administration of the detention facility in June 2002. In addition, the senior investigator relied on a report by forensic medical experts who had studied the first applicant’s medical documents in April 2004 and concluded that there was insufficient evidence to confirm that the first applicant had had broken ribs.
48. On 14 December 2004 the decision of 30 April 2004 was quashed and an additional investigation was ordered.
49. On 24 December 2004 an assistant of the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against the warders, finding no prima facie case of ill-treatment. The assistant’s decision was based on the statements of one of the first applicant’s cellmates, a warder and a medical assistant who had examined the first applicant on 22 June 2002. The first applicant’s cellmate stated that he had fallen over. He had had no visible injuries, but had complained of being in pain. The warder, while noting that conflicts among detainees had been very frequent and that it was impossible to remember each and every one of them, insisted that no force had been used against the first applicant on any occasion. The medical assistant stated that prior to his placement in the detention facility’s medical unit on 22 June 2002 the first applicant had acted aggressively towards other inmates and provoked, in turn, aggressive actions towards himself.
The assistant was unable to locate and question the first applicant’s other cellmates.
50. It appears from the Government’s submissions that the decision of 24 December 2004 was quashed on 29 August 2007. A fresh investigation appears to be pending now.
51. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities’ own initiative where there are reasons to believe that a crime has been committed (Articles 146 and 147). The prosecutor is responsible for the overall supervision of the investigation (Article 37). He or she can order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds upon which to initiate a criminal investigation, the prosecutor or investigator shall give a reasoned decision to that effect, which must be brought to the attention of the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions given by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court.
52. Russian law sets out detailed guidelines for the detention of individuals in temporary detention facilities. These guidelines are found in Ministry of Justice Decree no. 189 on Internal Regulations of Temporary Detention Facilities (“the Decree”), enacted on 14 October 2005. In particular, Section II of the Decree provides that an investigation should be carried out into the circumstances in which a detainee has sustained injuries. Case-file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor’s office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of the Russian Code of Criminal Procedure (paragraph 16 of Section II).
53. Chapter III of the Prosecutor’s Offices Act (Federal Law no. 2202-I of 17 January 1992) identifies the jurisdiction and powers of prosecution authorities in the field of prosecution supervision. In particular, if information about a possible violation of Russian law is received, prosecution authorities should carry out their supervisory function. Prosecutors are authorised to monitor the enforcement of the Russian Constitution and laws by various federal and local authorities and their officials, including the administrations of detention facilities (section 21). They should also ensure that the rights and freedoms of detained individuals are respected in places of detention. In performing their task prosecutors should respond to information about possible violations of human rights and freedoms and take measures to prevent or eliminate such violations, bringing those responsible to justice, which can include instituting administrative or criminal proceedings and awarding damages (sections 26, 27 and 32). While supervising the work of the administration of a detention facility, prosecutors are to demand that the administration creates conditions in which the rights and freedoms of detained individuals are fully respected, to check that the administration’s decisions comply with domestic legal norms and to receive additional explanations from officials of the detention facility if needed (section 33).
54. The complexity and importance of prevention of violence in detention facilities, specificity of procedures to be employed by facility administration addressing inter-prison violence and necessity of special care, including psychiatric care, of detainees was discussed by the European Committee for the Prevention of Torture in its General Reports. The following are the extracts from the Reports:
“54. Effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment’s premises. Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general.
55. It is also in the interests of both prisoners and prison staff that clear disciplinary procedures be both formally established and applied in practice; any grey zones in this area involve the risk of seeing unofficial (and uncontrolled) systems developing. Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences it is alleged they have committed, and to appeal to a higher authority against any sanctions imposed. Other procedures often exist, alongside the formal disciplinary procedure, under which a prisoner may be involuntarily separated from other inmates for discipline-related/security reasons (eg. in the interests of "good order" within an establishment). These procedures should also be accompanied by effective safeguards. The prisoner should be informed of the reasons for the measure taken against him, unless security requirements dictate otherwise1, be given an opportunity to present his views on the matter, and be able to contest the measure before an appropriate authority.”
“ii) psychiatric care
41. In comparison with the general population, there is a high incidence of psychiatric symptoms among prisoners. Consequently, a doctor qualified in psychiatry should be attached to the health care service of each prison, and some of the nurses employed there should have had training in this field.
The provision of medical and nursing staff, as well as the layout of prisons, should be such as to enable regular pharmacological, psychotherapeutic and occupational therapy programmes to be carried out.
42. The CPT wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment (eg. depression, reactive state, etc.), with a view to enabling appropriate adjustments to be made to their environment. This activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff.”
“Staff-prisoner relations
26. The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job. Building positive relations with prisoners should be recognised as a key feature of that vocation.
Regrettably, the CPT often finds that relations between staff and prisoners are of a formal and distant nature, with staff adopting a regimented attitude towards prisoners and regarding verbal communication with them as a marginal aspect of their work. The following practices frequently witnessed by the CPT are symptomatic of such an approach: obliging prisoners to stand facing a wall whilst waiting for prison staff to attend to them or for visitors to pass by; requiring prisoners to bow their heads and keep their hands clasped behind their back when moving within the establishment; custodial staff carrying their truncheons in a visible and even provocative manner. Such practices are unnecessary from a security standpoint and will do nothing to promote positive relations between staff and prisoners.
The real professionalism of prison staff requires that they should be able to deal with prisoners in a decent and humane manner while paying attention to matters of security and good order. In this regard prison management should encourage staff to have a reasonable sense of trust and expectation that prisoners are willing to behave themselves properly. The development of constructive and positive relations between prison staff and prisoners will not only reduce the risk of ill-treatment but also enhance control and security. In turn, it will render the work of prison staff far more rewarding.
Ensuring positive staff-inmate relations will also depend greatly on having an adequate number of staff present at any given time in detention areas and in facilities used by prisoners for activities. CPT delegations often find that this is not the case. An overall low staff complement and/or specific staff attendance systems which diminish the possibilities of direct contact with prisoners, will certainly impede the development of positive relations; more generally, they will generate an insecure environment for both staff and prisoners.
It should also be noted that, where staff complements are inadequate, significant amounts of overtime can prove necessary in order to maintain a basic level of security and regime delivery in the establishment. This state of affairs can easily result in high levels of stress in staff and their premature burnout, a situation which is likely to exacerbate the tension inherent in any prison environment.
Inter-prisoner violence
27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.
Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-112541
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GÜNDÜZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Ms Gülbahar Gündüz, is a Turkish national, who was born in 1972 and lives in Istanbul. She was represented before the Court by Ms E. Keskin and Mrs F. Karakaş Doğan, lawyers practising in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.


ITEMID: 001-138903
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: PETROVÁ AND VALO v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 1. The applicants, Ms Zuzana Petrová and Mr Ondrej Valo, are Slovak nationals who were born in 1971 and 1967 respectively and live in Košice.
They were represented before the Court by Mr I. Šafranko, a lawyer practising in Svidník.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants’ grandmother owned a piece of land situated in a regional capital.
In the Land Registry that land is recorded on two separate Certificates of Ownership relating to a number of plots occupying a total surface area of 7,682 square metres.
The plots recorded in one of these Certificates are classified as arable land and garden whereas the land recorded in the other Certificate, having a surface area of 94 square metres, is classified as land in a built-up area.
5. This piece of land resembles a strip bordered on both sides by plots on which neighbours have their houses. According to the Government, this piece of land used to be on the outskirts of town but because of the growth of the town its built-up areas have reached this property.
6. In the 1950s or 1960s, when the land in question was de facto occupied by a socialist agricultural co-operative, three high-voltage pylons were erected on it, subject to the provisions of the 1957 Electrification Act (Law no. 79/57 Coll.). The pylons themselves cover some 2 square metres of the surface of the land in question, but the protective zone around them covers an area of 6,144 square metres.
7. The applicant’s grandmother was neither invited to take part in nor informed of the administrative proceedings concerning the construction of the electricity main of which the pylons were a part. She did not receive any compensation. Nevertheless, no decision appears to have been taken depriving her of the title to the land.
8. From 1998 the applicants’ grandmother, and later also the applicants, made a large number of applications to various courts, public bodies, members of parliament and other officials with a view to obtaining compensation in respect of the restrictions resulting from the erection and continued presence of the pylons on the land in question.
9. Meanwhile, in 2002 the applicants became the owners of the land by way of a gift from their grandmother, who then passed away in 2005.
10. As the owners, from 2005 the applicants became liable to pay realestate tax on the land. In 2012 the amount of tax payable in respect of the land as a whole was 70.23 euros (EUR), of which EUR 8.07 related to the proportion of the surface taken up by the pylons.
As the owners, the applicants became liable to maintain the land so that the use of the adjacent plots was not hindered.
11. In the applicants’ submission, with the installations on it, their land can neither be sold nor made use of for construction. Nevertheless, in 2012, the applicants sold the plot classified as being in a built-up area (see paragraph 4 above) to another individual.
12. As submitted by the Government, and acknowledged by the applicants, the remainder of the land can be used for farming, and it is used as a garden for growing fruit trees and vegetables.
13. On 5 February 2003 the applicants brought and later amended an action eventually directed against the local electricity-distribution company and aimed at obtaining an amount of money in compensation for the use of the surface occupied by the pylons.
The defendant of the action is a joint-stock company and, as such, one of its statutory purposes is to generate profit. It has been submitted by the applicants, and not contested by the Government, that the defendant is owned by another company, of which the State owns 51% of the stock.
As to the substance, for each square metre occupied by the pylons, the applicants claimed the equivalent of approximately EUR 1.20 per year.
In support of their claim, the applicants relied, inter alia, on Articles 6 § 1 of the Convention and 1 of Protocol No. 1, arguing that while the impugned pylons served to make a profit for the defendant, the applicants not only had to endure the presence of the pylons but were also incurring costs related to the plot’s maintenance.
14. The action was examined and dismissed at two levels of ordinary jurisdiction: by the Košice I District Court (Okresný súd) on 13 December 2007 and, following an appeal by the applicant, by the Košice Regional Court (Krajský súd) on 11 December 2008.
15. The courts applied section 22(2) of the 1957 Electrification Act, which was still in force by virtue of section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 69(10) of the 2004 Energy Act (Law no. 656/2004 Coll.). Their reasons may be summarised as follows:
The 1957 Electrification Act authorised the construction of electricity mains, including the establishment of support points, such as the pylons on the applicants’ land, on the real property of any party.
As a matter of principle, no compensation was envisaged. However, if the owners or users of the real property concerned were significantly encumbered in its use they could claim adequate one-off compensation.
A claim for such one-off compensation had to be filed within three months of the entry into use of the installation or else it would lapse.
The applicable legislation provided for an ex lege easement, which was a sui generis notion within public law. It was accordingly not possible to advance a compensation claim on the basis of private law. The easement in question was always to be governed by the legal rules applicable at the time of its creation. The subsequent legislation did not envisage any compensation other than the one-off compensation under the 1957 Electrification Act.
In support of this position, the courts also relied on a decision of the Constitutional Court (Ústavný súd) of 28 September 2005 (see paragraph 34 below).
In the applicants’ case, at the relevant time no compensation had been claimed or, consequently, obtained. The claim of the applicants’ grandmother had thus lapsed, there had not been any legal basis for its renewal, and there was no basis for any new claim of the applicants’ own.
The courts equally held that the right to a fair trial did not imply the right to a successful outcome in the proceedings; that the ex lege easement served the public interest and that it did not infringe on the applicants’ property rights.
16. On 9 March 2009 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). They advanced similar arguments to those outlined above and alleged a violation of their rights under Article 1 of Protocol No. 1.
In addition, the applicants submitted that they accepted the public interest in having the installation and that the essential problem was the complete lack of any compensation, which they considered disproportionate. In particular, the ordinary courts had failed to respond to their argument that their grandmother could not have claimed any compensation at the time of the creation of the easement because she had de facto not been using it and compensation could only be claimed by someone who had been significantly encumbered in the use of their property.
The applicants further relied on the judgments (nález) of the Constitutional Court (Ústavní soud) of the Czech Republic – Slovakia having a similar legal tradition – in cases nos. Pl. ÚS 25/04, of 25 January 2005, and I. ÚS 137/03 of 18 November 2003. These judgments concerned, inter alia, the continued application of the compensation regime set up under the 1957 Electrification Act. In these judgments, an ideological distinction was observed between the “old law”, that is to say, that of the “old (communist) regime” prior to November 1989, and the law applicable under the subsequent democratic constitution. This distinction reflected the political and economic changes that had taken place.
The quoted judgments recognised that, while there was a general continuity with the old law, there was a discontinuity in respect of the values of the old regime. The interpretation and application of the old rules had thus currently to take due account of the need for the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the creation of an ex lege easement as such was undisputed, where the applicable public-law legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement, the relevant provisions of private law were to be used as an alternative. Such provisions provided for compensation in respect of running costs, which was to be agreed on by those concerned or to be ordered by a court. A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement.
17. On 14 May 2009 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded. It reiterated its established case-law to the effect that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural claim had been advanced and, in any event, no procedural issue had been established. The ordinary courts’ judgments were supported by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification.
18. The Charter (Constitutional Law no. 23/1991 Coll.) was introduced into the legal order by way of a constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9 January 1991 and which entered into force on 8 February 1991. The law remains in force in Slovakia today.
19. The relevant part of Article 11 provides:
“1. Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. [The right of] inheritance is guaranteed.
2. The law shall designate the property necessary for securing the needs of society as a whole, the development of the national economy, and public welfare, which may be owned exclusively by the State, a municipality, or by designated legal persons; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the Czech and Slovak Federal Republic.
3. Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to cause harm to health, nature, or the environment beyond the limits laid down by law.
4. Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.”
20. The relevant part of Article 20 provides:
“1. Everyone shall have the right to own property. The property rights of all owners shall be uniformly construed and equally protected by law. The right of inheritance is guaranteed.
...
4. Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest, in accordance with the law and for adequate compensation.”
21. Article 3 § 1:
“The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra bonos mores.”
22. Article 123:
“The owner shall be entitled, within the limits prescribed by law, to hold the object of his ownership, to use it, to benefit from its fruits and proceeds and to make dispositions in respect of it.”
23. Article 124:
“All owners shall have the same rights and duties and shall be granted the same legal protection.”
24. Article 128:
“1. The owner of a thing must endure the use of his thing [by another person] in a state of emergency or in a pressing public interest, for the necessary time, to the necessary extent, and in return for compensation, if the purpose cannot be achieved otherwise.
2. In the public interest, ... the ownership of [a thing] may be restricted if the purpose cannot be achieved otherwise, provided that the expropriation or restriction has a basis in law, and only for that purpose and for compensation.”
25. Article 151n et seq. provides basic rules in relation to easements:
“1. Easements shall constitute a restriction on the owner of real property for the benefit of someone else, so that the owner must endure, refrain from doing or do something. The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person.
2. Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property.
3. Unless the participants agree otherwise, the person who is entitled to use somebody else’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair; however, if the thing is co-used by its owner, the owner must bear these costs in proportion to the extent of the joint use.”
26. The relevant part of Article 151o § 1 provides:
“Easements can arise on the basis of a written contract, on the basis of a will, in connection with the outcome of inheritance proceedings, on the basis of an approved agreement among the heirs, on the basis of a decision by the competent authority, or by operation of law.”
27. Under section 22(1) of the 1957 Electrification Act, an enterprise active in the energy sector was entitled: (a) to build and operate electrical installations on other persons’ real property to the extent permitted under the building permit, to erect support pylons, to connect the plots by conductors and to establish the electricity main on them; (b) to access the real property directly concerned for the purposes of the construction, operation, maintenance, and modification or removal of the main; and (c) to remove or prune trees obstructing the main.
28. Subject to section 22(2), the exercise of the entitlements pursuant to section 22(1) was subject to no compensation. However, if the owners or users of real property not belonging to the (socialist) State were significantly encumbered in the use of the property because of the establishment of the main, they could a claim with the construction authority for the company concerned to pay them adequate one-off compensation. The claim was to be submitted within three months of the entry of the installation into permanent use on the pain of expiry.
29. The 1957 Electrification Act was abolished and replaced on 1 July 1998 by the 1998 Energy Act, which in turn was abolished and replaced as of 1 January 2005 by the 2004 Energy Act, which in its turn was eventually abolished and replaced on 1 September 2012 by the 2012 Energy Act (Law no. 251/2012 Coll.).
Under all the Acts, however, entitlements in respect of other persons’ real property, and limitations on the use of it, which had been established previously remained intact.
30. Section 10 of the 2004 Energy Act, as applicable at the relevant time, provides for a number of safeguards and guarantees to the owners of real property affected by industrial activities in the energy sector, including:
- rules on elimination and limitation to the minimum possible of any interference, restrictions, expenses and losses on the part of the owners due to activities of holders of licences to carry out business in the energy sector;
- regulation of access to the real property affected;
- regulation of measures to be taken and compensation for expenses incurred in connection with such measures in respect of vegetation undermining the security or reliability of the operation of energy facilities;
- rules on one-off compensation payable to the owners if they are restricted in the ordinary use of their real property; and
- rules on one-off compensation for the creation of an easement in rem on the property concerned, such easement consisting of the duties and restrictions imposed under section 10 of the 2004 Energy Act.
31. Similar provisions to those referred to in the precedent paragraph are contained in the 2012 Energy Act. The easements in question are to be registered with the Land Registry and the licence holder is to inform the owner of the real property concerned of the registration in writing (section 11(10) and (12) of the 2012 Energy Act).
32. By way of an action in the Prešov District Court (case no. 9C 207/00), an individual sued a municipality and a public-transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system. For unclear reasons the applicants were third parties to the proceedings.
33. In the context of those proceedings, the Court of Appeal challenged before the Constitutional Court the constitutionality of section 42(2) of the 1957 Electrification Act, applicable by virtue of section 69(10) of the 2004 Energy Act, which had replaced the 1998 Energy Act.
34. On 28 September 2005 the Constitutional Court dismissed the challenge (case no. PL. ÚS 28/05) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation. Providing for new compensation claims would amount to enabling new restitution claims, which the lawmaker was free under the Constitution to choose not to do.


ITEMID: 001-79585
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF PEPSZOLG KFT ("v.a.") v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 5. The applicant is a limited liability company, founded in 1989, with its seat in Budapest. It is currently in the process of being wound up.
6. In 1991 an action was brought against the applicant company by an entity called Pesterzsébeti Papírgyár Leányvállalat which claimed to be the successor of PV Pesterzsébeti Papírgyár, one of the applicant company’s shareholders. The plaintiff sought inter alia the invalidation of the registration of the applicant company, claiming that the Articles of Association were against the law.
7. In its final decision of 28 May 1993, the Supreme Court held that the Articles of Association had been in force until the day of its decision, but were void thereafter. It ordered the winding-up of the applicant company.
8. Consequently, on 7 September 1993 the Court of Registration ordered the representative of the applicant company to submit the name, address and authorisation of a liquidation manager (végelszámoló). Despite the representative’s failure to comply with this order, on 30 November 1993 the Court of Registration declared the applicant company’s dissolution as of 28 May 1993, and registered the fact that it was in the process of winding-up.
9. On appeal, on 6 June 1995 the Supreme Court, sitting as a second-instance court, quashed this decision and remitted the case to the Court of Registration, holding that it had delivered its decision despite the representative’s failure to provide the requisite information.
10. In the resumed proceedings, on 12 December 1995 the Court of Registration appointed a liquidation manager and declared the retroactive dissolution of the applicant company, as of 28 May 1993. On 6 February 1996 it ordered that corresponding entries be made in the companies register. On 29 October 1996 the Supreme Court upheld the decision of 12 December 1995. A further appeal was dismissed on 7 February 1997.
11. On 15 June 1998, 14 June 1999 and 19 December 2005, the respective liquidation managers were consecutively replaced.
12. Meanwhile, in reaction to various appeals and requests for supplementation or rectification, amendments were made to the order of 28 May 1993 on 16 July, and 1 and 17 September 1999. On 26 January 2000 the judges of the Budapest Court of Registration declared themselves biased. Subsequently, the Pest County Court of Registration was appointed to deal with the case. On 17 April and 30 May 2000 respectively, this court ordered that the decisions of 12 December 1995 and 6 February 1996 be amended. On 21 September 2001 the Supreme Court, sitting as a second-instance court, dismissed the applicant company’s appeal filed against a procedural order of 12 July 1999.
13. On 11 May 2005 the Pest County Directorate of the Tax Authority initiated execution proceedings against the applicant company.
14. The winding-up proceedings are still pending.
15. In 1991 the applicant company instituted proceedings against several defendants, claiming damages in the amount of 330,000 Hungarian forints, plus accrued interest (“the 1991 proceedings”).
16. Moreover, on 7 April 1992 the applicant company brought an action in trespass and for restitutio in integrum of a real property against Pesterzsébeti Papírgyár Leányvállalat (“the 1992 proceedings”). On 23 April 1992 the Budapest XX/XXI District Court transferred this case to the competent Budapest Regional Court. On 28 September 1992 the plaintiff completed its action.
17. On 10 March 1993 the Regional Court suspended the proceedings pending the establishment of the validity of the applicant company’s Articles of Association (see paragraphs 5 and 6 above). In April 1994 the applicant company requested the continuation of the proceedings.
18. On 17 October 1994 the Regional Court continued the proceedings and invited the applicant company to complete its action. It gave better particulars of its claims on 29 March and 25 October 1995.
19. The Regional Court held hearings on 28 November 1995, 24 January, 21 May, 16 October and 27 November 1996. On 13 October 1997 it requested a further supplementation of the applicant company’s claims. The latter complied with the order on 3 November 1997. On 25 November 1997 an expert engineer was appointed.
20. On 25 March 1998 the court, upon the parties’ request, stayed the proceedings. On 2 November 1998 the proceedings resumed. Further hearings took place on 11 December 1998, 21 April and 30 June 1999, 22 March 2000 and 17 January 2001.
21. On 15 September 2001 the applicant company submitted a motion for bias against the Regional Court. The Supreme Court rejected the motion on 11 January 2002. On 28 January 2003 the winding-up manager submitted a motion for bias against the presiding judge which was rejected on 11 February 2003.
22. On 12 February 2003 the 1991 and the 1992 proceedings were joined. On 26 June 2003 the Regional Court held a hearing and again invited the applicant company to complete its claim, which it did on 6 October 2003. On 18 November and 11 December 2003, respectively, two further motions of the applicant company for bias were rejected.
23. After a hearing on 20 November, on 26 November 2003 the Budapest Regional Court delivered a partial decision. On 16 March 2005 the Szeged Court of Appeal confirmed this decision. The applicant company lodged a petition for review with the Supreme Court. On 19 September 2005 the Supreme Court dismissed its petition.
24. Meanwhile, in February 1995 the applicant company instituted another set of proceedings against the Pesterzsébeti Papírgyár Kft., the successor of the respondent in the 1992 proceedings (“the 1995 proceedings”).
On 20 March 1995 and 28 November 1995, the court held hearings. At the latter date, it invited the parties to submit preparatory documents. They complied with the order on 16 January and 23 January 1996, respectively. On 21 May 1996, and 19 June and September 1997, the court held further hearings.
25. On 25 November 1997 and 22 March 2000, the court appointed technical experts who submitted their opinions on 23 April 1998 and 8 September 2000, respectively.
26. Meanwhile, on 11 December 1998 another hearing took place and the proceedings were suspended. On 31 August 1999 the applicant company requested the court to continue the proceedings. On 17 January 2001 the court held a hearing and again suspended the proceedings.
27. On 27 August 2001 the applicant company lodged a motion for bias against the court which was dismissed by the Supreme Court on 11 January 2002. In November 2003 these proceedings were joined to the 1991 and 1992 proceedings.
28. The proceedings concerning the remainder of the joined 1991-1992-1995 cases are still pending at first instance.
29. In 1995 Pesterzsébeti Papírgyár Kft. filed a motion for the protection of possessions with the Pesterzsébet Municipality. On 8 November 1995 the motion was rejected. Subsequently, on 23 August 1995 the complainant brought an action in trespass against Castell Ltd., which claimed to be the successor of the applicant company, and other defendants, including the applicant company itself.
30. In its order of 26 February 1996, the Budapest XX/XXI/XXIII District Court stated that the applicant company had been dissolved and had therefore no capacity to conduct legal proceedings. It requested the plaintiff to provide the court with the name of the applicant company’s liquidation manager.
31. On 29 October 1996 the Court of Registration informed the District Court that Castell Ltd. was not a registered company.
32. The case was then transferred to the Pest Central District Court and, on 7 October 1997, to the Budapest Regional Court. On 15 October 1998 the Regional Court held that the Budapest XX/XXI/XXIII District Court was competent to hear the case.
33. On 26 November the District Court requested the plaintiff to specify its claims. On 16 December 1998 the plaintiff requested the extension of the time-limit and on 15 February 1999 it complied with the District Court’s order. On 1 April 1999 the respondents submitted their counter-claims.
34. On 1 March 1999 the District Court ordered the defendants to clarify the relation between the applicant company and Castell Ltd. In reply, the court was informed that the applicant company “had changed its name to Castell Ltd.” on 29 August 1992; however, the changes had not been registered by the Court of Registration.
35. On 25 May 1999 the District Court discontinued the proceedings against Castell Ltd., but not against the applicant company, whose winding-up was in progress. Subsequently, extensive correspondence developed between the parties and the court concerning the service of this decision and the capacity of the applicant company and Castell Ltd. to conduct legal proceedings. In the course of these events, the applicant company repeatedly submitted to the court that the two entities were one and the same, but in vain.
36. Subsequently, the District Court suspended the proceedings until the termination of the proceedings described in chapter “A” above. On 16 July 2003 the defendants complained of this decision. On 18 July 2003 the District Court dismissed their complaint. On appeal, the Budapest Regional Court, acting as a second-instance court, quashed the first-instance decision and ordered the District Court to continue the proceedings.
37. Ultimately, the decision of 25 May 1999 became final. On 3 March 2004 the District Court again suspended the proceedings until the termination of the case outlined in chapter “A” above. The defendants appealed. On 9 September 2004 the Budapest Regional Court dismissed the appeal. The proceedings have been pending ever since.
38. On either 21 November or 1 December 1995, Pesterzsébeti Papírgyár Kft. brought another action in trespass against Castell Ltd., in the context of a challenge to a decision by the Pesterzsébet Municipality given on 3 November 1995. Again, extensive correspondence developed between the court and the parties as to Castell Ltd.’s locus standi.
39. On 19 December 1995 the District Court invited the plaintiff to submit documents. In its submissions of 15 January 1996, the plaintiff requested the suspension of the proceedings. On 22 January 1996 the District Court refused the request.
40. On 22 February 1997 the Budapest XX/XXI/XXIII District Court transferred the case to the Pest Central District Court. On 3 December 1997 the District Court held a hearing and, at the parties’ request, stayed the proceedings. On 26 May 1998 the plaintiff requested the continuation of the proceedings.
41. On 20 January 1999 the Pest Central District Court forwarded the case file to the Budapest Regional Court for appropriate delegation. On 7 December 1999 the Regional Court appointed the Budapest XX/XXI/XXIII District Court to hear the case.
42. On 2 May 2000 the District Court discontinued the proceedings, holding that Castell Ltd. was not a registered legal entity. On 23 May 2003 the court confirmed that this decision had become final on 17 June 2000.
43. On 25 September 2002 the applicant company’s liquidation manager requested the continuation of the proceedings. On 23 May 2003 the District Court dismissed the request. On 28 May 2003 the applicant company complained of this decision. On 10 July 2003 the District Court dismissed the complaint. On 16 July 2003 the applicant company appealed.
44. On 10 July 2003 the court rejected Castell Ltd.’s appeal, introduced after the actual service of the first instance decision, as being inadmissible ratione personae.
45. On appeal, on 11 December 2003 the Budapest Regional Court ordered the resumption of the proceedings.
46. On 20 April 2004 the plaintiff eventually withdrew its action.
47. On 4 March 1991 PV Pesterzsébeti Papírgyár, a shareholder of the applicant company (see paragraph 5 above), brought an action against the latter, challenging a shareholders’ resolution. Subsequently, a manager employed by the plaintiff withdrew the action, and the proceedings were discontinued on 22 May 1991. This decision was not served on the applicant company.
48. On 9 March 2004 the applicant company requested proper service of the decision. On 10 September 2004 the Szeged Court of Appeal observed that the manager in question had not been entitled to act on behalf of the plaintiff, which in any case had ceased to exist in 1997. Consequently, the proceedings had to be declared as having been interrupted (félbeszakadt) as of 10 December 1997.
49. On 28 September 2004 the applicant company requested the Budapest Regional Court to proceed with the case, in order to obtain a proper order to discontinue and finally terminate the interrupted proceedings. On 30 May 2005 the Regional Court dismissed the request. The applicant company’s appeal was to no avail.
50. Subsequently, on 1 March 2005 the Company submitted a motion for bias against the Regional Court, which was dismissed by the Supreme Court on 24 March 2005.
51. On 20 February 2006 the Budapest Regional Court finally discontinued the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94419
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ÜMIT GÜL v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1982 and lives in Dusseldorf, Germany.
6. On 14 January 2001 police officers from the anti-terrorist branch of the Tunceli police headquarters arrested the applicant on suspicion of having written slogans on a wall in support of TKP/ML-TMLGB, namely, the Communist Party of Turkey/Marxist Leninist - Marxist Leninist Youth Union of Turkey (Türkiye Komunist Partisi/Marksist Leninist - Türkiye Marksist Leninist Gençlik Birliği), an illegal organisation. He was placed in police custody. According to the arrest report of 14 January 2001, the applicant did not ask for a lawyer.
7. The applicant alleged that while in police custody he had been subjected to physical and psychological ill-treatment amounting to torture. The illtreatment consisted of, inter alia, being hosed with pressurised cold water and suspended by the arms, electric shocks and beatings.
8. According to four medical reports drawn up on 14, 16, 17 and 19 January 2001 by a doctor at Tunceli State Hospital, apparently at the request of the police headquarters where the applicant was being detained, there were no marks of ill-treatment on the applicant’s body. It was stated in the reports that the applicant “did not have any complaints, appeared well and was conscious” and that there were “no injuries on his body”.
9. On 17 January 2001, while he was in police custody, police officers questioned the applicant and recorded his statement. In the ninepage statement the applicant was reported as having stated that he did not want the assistance of a lawyer and went on to detail the activities he had carried out on behalf of the above-mentioned illegal organisation. These activities included distributing copies of a left-wing newspaper, writing slogans on walls and taking part in meetings with other members of the organisation.
10. On 19 January 2001 the applicant was brought before the Tunceli prosecutor and subsequently before the Tunceli Magistrates’ Court (Tunceli Sulh Ceza Mahkemesi), where he was questioned further. The applicant confirmed the accuracy of the contents of the statement he had made in police custody on 17 January 2001. The Magistrates’ Court ordered the applicant’s detention pending the outcome of the criminal proceedings. The applicant was detained in Malatya Prison.
11. On 22 January 2001 the applicant submitted a petition to the Malatya State Security Court, requesting his release. In his petition the applicant stated that, in the course of his detention in police custody he had been subjected to intensive physical and psychological torture in order to force him to sign a statement. Furthermore, he had not been allowed to sleep for three days preceding his appearance before the prosecutor and, as a result, had not been fully conscious when questioned. The applicant’s request for release was rejected the following day.
12. On 8 February 2001 the applicant asked, in writing, for the Malatya public prosecutor to refer him to a hospital so that the marks left on his shoulders by the illtreatment could be documented. On 14 February 2001 the Malatya prosecutor decided that the alleged ill-treatment had not taken place in his area of jurisdiction and forwarded the applicant’s letter to the Tunceli prosecutor.
13. Following a request apparently made by the director of the Malatya Prison on 27 February 2001, the applicant was examined on 28 February 2001 by the director of the Malatya branch of the Forensic Medicine Directorate, who is also a medical consultant. According to the report drawn up by that doctor, there were four scars, measuring between two and three centimetres by one centimetre, on the front and back of the applicant’s shoulders. It also appears from the report that the applicant had complained to the doctor about pain and restriction of movement in his arms. The doctor recommended that the applicant be sent to a fully equipped hospital for further diagnosis of his injuries and complaints.
14. On 22 March 2001, and subsequently on 10 April 2001, the applicant made two statements before a prosecutor and set out in detail the illtreatment to which he had been subjected by six or seven police officers while in custody. According to these statements, the ill-treatment included being stripped naked and wrapped in a damp blanket before being beaten with truncheons and suspended by the arms, which caused the ligaments in his shoulders to tear. The police officers had also threatened to harm his relatives and get his father dismissed from his job as a neighbourhood security guard if he denied the allegations against him. The applicant told the prosecutor that the contents of the medical report drawn up by the Malatya branch of the Forensic Medicine Directorate were correct and informed the prosecutor that he would be able to recognise the police officers responsible for the ill-treatment if he ever saw them again. He asked the prosecutor to prosecute them.
15. The applicant was examined by a consultant orthopaedist and a consultant neurologist at Malatya State Hospital on 13 April 2001. The orthopaedist noted a number of scars on the applicant’s shoulders, compatible with the findings of the medical report of 28 February 2001 (see paragraph 13 above). The neurologist recommended the applicant’s referral to a specialist hospital.
16. On 14 April 2001 the Tunceli prosecutor requested authorisation from the Tunceli governor to prosecute the police officers allegedly responsible for the applicant’s ill-treatment. This request was made pursuant to Law No. 4483 on the Trial of State Employees and other Public Servants.
17. The applicant was released on bail on 24 April 2001.
18. On 7 and 11 May 2001 police chief Y.K., who was entrusted with the duty of investigating the applicant’s allegations, questioned two police officers, Z.G. and İ.Ç., who had apparently questioned the applicant and taken down his statement on 17 January 2001. Both officers denied ill-treating the applicant and stated that “members of terrorist organisations made such allegations in order to lower the morale of the police”.
19. On 10 May 2001 the Tunceli prosecutor referred the applicant to Fırat Research Hospital in the city of Elazığ (hereinafter “ Elazığ Hospital”) in order to establish whether the applicant’s injuries had caused any permanent damage. A medical examination was scheduled to take place on 15 June 2001.
20. On 15 May 2001 the police chief Y.K. recommended to the Tunceli governor that permission for the prosecution of the two police officers should not be granted.
21. The Tunceli prosecutor’s request for authorisation to prosecute was refused by the Tunceli governor on 21 May 2001. The governor considered, on the basis of a report prepared by the police chief Y.K., that, other than the applicant’s own allegations, there was no evidence to prove that the injuries detailed in the medical reports had been caused in detention.
22. On 31 May 2001 the applicant lodged an objection against the Tunceli governor’s decision of 21 May 2001 and argued that the decision, which had been taken before his examination at Elazığ Hospital was due, had failed to establish the truth and should be annulled.
23. In its decision of 13 June 2001, the Malatya Regional Administrative Court annulled the decision of the Tunceli governor on the ground that it was based on an incomplete investigation. In particular, the governor’s decision had been taken before a detailed medical report from Elazığ Hospital had become available. Furthermore, the decision was based on a report prepared by an investigator who had not interviewed the applicant. Finally, the authorisation to prosecute had been rejected solely on the basis of the statements taken from those allegedly responsible for the ill-treatment and the medical reports drawn up while the applicant was in detention.
24. On 21 June Elazığ Hospital sent a letter to the Tunceli prosecutor informing him that the applicant “did not have his EMG examination done”.
25. The same police chief Y.K. was entrusted with the duty of carrying out the new investigation. When he questioned the applicant on 6 July 2001 the applicant told him that when he had been brought before the doctor while in police custody he had been very scared and therefore had not been able to tell the doctor anything about the ill-treatment. In any event, the doctor had not examined him properly. When he had finally been referred to Elazığ Hospital he had been asked to pay the costs of the medical examination but had been unable to afford it. As a result, the doctors at the hospital had refused to examine him. The applicant told the police chief that he wanted those responsible for his ill-treatment to be prosecuted.
26. The police chief Y.K. prepared his report on 17 July 2001 and stated that in his opinion permission for the prosecution of the police officers should not be granted.
27. On 27 July 2001 the Tunceli governor again refused authorisation to prosecute the police officers. The governor noted the applicant’s claim that he had not been examined at Elazığ Hospital as he had been unable to pay the cost (approximately 30 euros) for an electromyography test (an EMG). The Tunceli governor considered that the defects highlighted in the Regional Administrative Court’s decision of 13 June 2001 had been eliminated and that there was no evidence that the applicant had been subjected to ill-treatment. The report of 28 February 2001, showing injuries on the applicant’s body, had been obtained thirty-nine days after his release from police custody.
28. According to the applicant, the Tunceli governor’s decision was not communicated to him, as in the meantime he had fled Turkey and settled in Germany as a result of harassment to which police officers had subjected him. He did not, therefore, lodge an objection against this decision. According to a document submitted to the Court by the Government, however, the applicant was served with the decision on 5 August 2001.
29. An automatic appeal was lodged against the Tunceli governor’s decision with the Malatya Regional Administrative Court, which, however, remitted it to the governor’s office as only the applicant or the prosecutor could have lodged the appeal. The Regional Court observed that the decision in question had become final as no appeal had been lodged.
30. On the basis of the Tunceli governor’s decision of 27 July 2001, on 16 October 2001 the Tunceli prosecutor rendered a decision not to prosecute the police officers allegedly responsible for the ill-treatment. The applicant lodged an objection, through his legal representative, against that decision and pointed to the failure to remedy the defects identified in the Malatya Regional Administrative Court’s decision of 13 June 2001.
31. On 8 November 2001 the applicant’s objection was rejected by the Erzincan Assize Court on the basis of the Tunceli governor’s above-mentioned decision of 27 July 2001.
32. In the meantime, on 20 February 2001 the prosecutor at the Malatya State Security Court filed an indictment charging the applicant with the offences of membership of an illegal organisation and aiding and abetting members of that organisation. In his indictment the prosecutor quoted extensive paragraphs from the statements taken from the applicant by police officers on 17 January 2001 and then by the prosecutor and the Magistrates’ Court on 19 January 2001.
33. Criminal proceedings commenced before the 2nd Chamber of the Malatya State Security Court (hereinafter “the trial court”). In the course of the proceedings the applicant was represented by a lawyer. The applicant told the trial court that his statement had been extracted under torture while he was in police custody. He repudiated the statement and maintained his innocence. The trial court had regard to the Tunceli prosecutor’s decision of 16 October 2001 not to prosecute the police officers.
34. On 9 April 2002 the applicant was found guilty of the offence of aiding and abetting an illegal organisation, contrary to Article 169 of the Criminal Code, and sentenced to three years and nine months’ imprisonment. In convicting the applicant the trial court had regard to the statements taken from the applicant by the police on 17 January 2001 and by the prosecutor and the Magistrates’ Court on 19 January 2001 (see, respectively, paragraphs 9-10 above).
35. The applicant’s conviction was upheld by the Court of Cassation on 12 November 2002.
VIOLATED_ARTICLES: 3
6


ITEMID: 001-85822
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LOFTUS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, George Augustus Loftus, is a British national who was born in 1936 and lives in Nottingham. He was represented before the Court by Royds Solicitors, London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 7 November 1998. By a letter of 15 May 2000, the applicant sought to claim widows’ benefits. On 1 June 2000 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 17 June 2000 the applicant appealed. On 4 October 2000 the appeal confirmed the previous decision.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-84730
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HANUSA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicants, Mr Fehim Hanuša, and Fatmir Hanuša, are citizens of Serbia who were born in 1954 and 1979 respectively. They are currently serving their prison sentences respectively in Valdice and Oráčov prisons (the Czech Republic). They were represented before the Court by Mr V. Vlk, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The Government of Serbia did not make use of their right to intervene (Article 36 § 1 of the Convention).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 December 1995 a police intervention unit entered the first applicant’s cottage on suspicion that he had raped a certain J. Fighting broke out, during which the first applicant was seriously injured. The applicants were charged with attempted murder of the police officers. The first applicant was also charged with rape. He was hospitalised and the second applicant was detained. In the course of the investigation it became apparent that J. had invented the story of the rape and that the police had already been aware of that on 8 December 1995.
i. Proceedings for the protection of the first applicant’s personal rights
On 26 June 1997 the first applicant filed with the Prague Municipal Court (městský soud) an action for the protection of his personal rights against the Ministry of the Interior claiming CZK 30,000,000 (EUR 1,150,386) as compensation for non-pecuniary damages. It appears that the proceedings are still pending.
ii. Procedure for the protection of the second applicant’s personal rights
On 11 May 1998 the second applicant and a certain K. filed with the Regional Court an action for the protection of their personal rights and payment of reasonable satisfaction. The court dismissed their action in a judgment of 10 April 2000 which was upheld by the Prague High Court (Vrchní soud) on 23 January 2001.
On 21 June 2001 the applicant requested to reopen the proceedings.
iii. Proceedings for damage to health, business losses brought by the first applicant
On 11 May 1998 the first applicant filed an action for damages against the Ministry of the Interior. On 11 November 1999 and 4 October 2001 respectively, the Beroun District Court (okresní soud) interrupted the proceedings pending the outcome of the proceedings for the protection of the applicant’s personal rights (i.). It appears that the proceedings have not yet been terminated.
iv. Proceedings for compensation for the expenses incurred in criminal proceedings
On 18 January 1999 the applicants brought two actions against the Ministry of Justice and Ministry of the Interior before the District Court for compensation for the expenses they had incurred in the criminal proceedings. On 28 May 2004 the court terminated the proceedings following the applicants’ withdrawals of their actions. Both decisions became final on 18 June 2004.
v. Proceedings for material damages initiated by the first applicant
On 9 December 1998 the first applicant brought proceedings before the District Court against the Ministry of the Interior, claiming material damages of CZK 200,000 (EUR 7,669).
On 25 June 2003 the District Court interrupted the proceedings pending the outcome of the proceedings for the protection of the applicant’s personal rights (i.). It appears that the proceedings remain pending.
vi. Proceedings for protection of personal rights of both applicants
On 1 June 2000 the applicants brought proceedings for protection of their personal rights against the Ministry of the Interior and Ministry of Justice before the Regional Court. The Prague High Prosecutor’s Office (Vrchní státní zastupitelství), the Plzeň Regional Prosecutor’s Office (krajské státní zastupitelství) and the Plzeň-Town District Prosecutor’s Office (okresní státní zastupitelství) joined the proceedings later on.
The court dismissed their action in a judgment of 6 March 2003 which was quashed by the High Court in respect of the first applicant. In a judgment of 12 February 2004 the Regional Court partly granted the first applicant’s action, dismissing the rest of his claims. On 5 October 2004 the High Court modified this judgment in that it dismissed the successful part of the applicant’s action. On 31 October 2005 the Supreme Court (Nejvyšší soud) dismissed the first applicant’s appeal on points of law (dovolání). His constitutional appeal (ústavní stížnost) was rejected by the Constitutional Court (Ústavní soud) on 14 April 2006.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-69356
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF PISK-PISKOWSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Partly inadmissible;Not necessary to examine Art. 34;Non-pecuniary damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1967 and lives in Opole, Poland.
5. In 1998 the prosecution service filed with the Opole District Court (Sąd Rejonowy) a bill of indictment in which it charged the applicant with making unlawful threats. In the course of the court proceedings the applicant was represented by a court-appointed lawyer. On 6 November 2001 the trial court held a hearing at which the applicant and his courtappointed lawyer were present. During the hearing, the court scheduled the next hearing for 4 December 2001 about which the applicant was informed.
6. On 4 December 2001 a hearing took place before the trial court. The applicant did not attend the hearing but his counsel was present. The applicant failed to give any reasons for his absence and the trial court finished the proceedings and decided in the presence of the counsel that the judgment would be delivered on 11 December 2001.
7. On 11 December 2001 the Opole District Court delivered a judgment in which it convicted the applicant as charged and sentenced him to a prison term of one year and six months. Neither the applicant nor his counsel was present at the delivery of the judgment.
8. The applicant did not appeal against the judgment of 11 December 2001 and did not apply for a copy of the reasons of that judgment.
9. Subsequently, the applicant lodged an application for leave to apply for a reasoned judgment out of time. In his application, he argued that his absence at the hearing held on 4 December 2001 was justified because he had been recently released from the detention and on 5 December 2001 he had been assaulted. The applicant also complained that he had not been informed about the date of the delivery of the judgment. On 9 April 2002 the Opole District Court examined the application and dismissed it. The court, in a reasoned decision, established that the applicant had known about the hearing scheduled for 4 December 2001. He failed to attend it without providing any justification for his absence. Therefore, the trial court was entitled to terminate the proceedings in his absence on the basis of Article 376 § 2 of the Code of Criminal Procedure. The court further examined the reasons for the absence submitted by the applicant. It established that in fact he had been released on 22 November 2001 - two weeks prior to the hearing. Moreover, while it was true that the applicant had been assaulted, nevertheless, that had happened the day following the hearing and the injuries sustained by the applicant, according to a hospital certificate, were not serious and the applicant was not admitted to hospital. With regard to the complaint that he was not informed about the date of the delivery of the judgment, the court found that the applicant had not been diligent since he had not contacted his lawyer. The applicant was aware of the scheduled hearing and knew the address and the name of his courtappointed lawyer.
The applicant appealed against this decision. On 16 May 2003 the Opole Regional Court (Sąd Okręgowy) examined the reasons given by the District Court and upheld the decision.
10. On 14 January 2002 the applicant started serving the prison sentence ordered by the judgment of 11 December 2001.
11. On 6 December 2002 the Court received the applicant’s first letter dated 13 November 2002. The letter was sent while the applicant was serving a prison sentence in the Wrocław Detention Centre. The envelope in which the letter was delivered bears the following stamps: “District Court in Legnica, censored on 22.11.02” (Sąd Rejonowy w Legnicy, cenzurowano dnia 22.11.02) and “252, 14 NOV 2002, register number 2738/01” (252, 14 LIS 2002, numer ewid. 2738/01).
12. Article 376 of the Code of the Criminal Procedure (Kodeks Postępowania Karnego) relates to the absence of the accused at a hearing. It reads, in so far as relevant, as follows:
“§ 1. If the accused, who has already given explanations, leaves the courtroom without the permission of the presiding judge, the court may complete the hearing in his absence, and the judgment thus rendered shall not be regarded as issued by default; the court shall order the accused to be brought to the courtroom by force, if it finds his presence indispensable.
§ 2. This provision shall apply accordingly when the accused, who has already given his explanations, and having been notified of the date of the adjourned or interrupted hearing, has not come to that hearing or justified his non-appearance.”
13. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 1 September 1998.
Article 103 of that Code, which is contained in Chapter IV entitled “Rights and duties of convicted persons”, provides as follows:
“Convicted persons, their counsel, representatives and the relevant non-governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by the Republic of Poland concerning the protection of human rights. In those cases, correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored.”
14. Provisions relating to the execution of detention on remand (Articles 207-223) are contained in Chapter XV entitled “Detention on remand”.
Article 217 § 1 reads, in so far as relevant:
“... a detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Pursuant to Article 214 § 1,
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same statutory rights as a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
15. Article 242 § 5, which is contained in Chapter XXI entitled “Definitions”, provides:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the contents of a letter.”
VIOLATED_ARTICLES: 8