ITEMID: 001-69117
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: THOMAS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Ian Thomas, is a United Kingdom national, who was born in 1961 and lives in Liverpool. He is represented before the Court by Mr C.J. Malone, a lawyer practising in Salford. The respondent Government are represented by Mr D. Walton, Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
Prior to her death, at the age of 26, Julie Christian had lived with the applicant, who was two and a half years older than her, for seven years.
Ms Christian's body was discovered early on the morning of Wednesday 14 November 1990 in an alley behind the street where she had lived with the applicant. It was dressed in a blue tracksuit and had been covered in household rubbish and set on fire. Because the body was badly burned it was impossible to identify the exact time or cause of death, but it was possible to rule out shooting, stabbing, beating and strangulation, and forensic experts considered that Ms Christian might have died through suffocation or drowning. It appeared that Ms Christian had been dead before her body was burned and that the fire had been built around her. There was nothing in the fire to connect it with the applicant.
The applicant was charged with murder, which he denied.
It was the prosecution case that the applicant killed Ms Christian at home some time between midnight on Saturday 10 November 1990 and 1 p.m. on Sunday 11 November, and that he moved her body to the alley on Sunday night. The prosecution evidence included the following matters. On Saturday evening, after decorating at Ms Christian's grandmother's house all day, the applicant and Ms Christian returned home to find that a debt collector had left a card in relation to a GBP 1,000 bank loan which was overdue. The couple argued, and Ms Christian decided to stay at home while the applicant went to a public house to meet several members of her family. She spoke to her sister on the telephone at around midnight on Saturday, to say that the argument had been resolved and that she was feeling better. She promised to call her sister again the following day after the debt collector had visited. However, she did not make the call: this was the last any member of her family heard from her. The following day, Sunday, at 1 p.m. the debt collector called at the applicant's house. He gave evidence that the applicant, apparently very agitated and wearing shorts and a t-shirt, would not let him into the house but insisted that they talked in the collector's car. Shortly before 2 p.m. the applicant went to a do-it-yourself shop where he bought a decorating item. The prosecution alleged that this was an attempt by him to create an alibi since the purchase was timed and he kept the till receipt. He later visited members of Ms Christian's family, saying that she was missing and that he was looking for her, and thereafter was alone for only very short periods until the body was found. On Sunday night he returned home, accompanied by Ms Christian's sister and her boyfriend, and was able to tell the sister, within minutes of looking into the wardrobe, that a blue tracksuit, a black jacket and skirt and a pair of black court shoes were missing.
Early on Monday morning the applicant reported Ms Christian's disappearance to the police. He was examined by a police doctor on Tuesday afternoon and found to have minor scratch marks on his face and chest which were assessed as being two to four days old, and not inconsistent with finger nail scratching. The applicant said that these had been caused either by decorating or by playing with his cat on Saturday: the police doctor was not able to exclude these causes either. None of the people who met the applicant in the public house on Saturday night could remember seeing the marks.
The applicant's house was searched on Wednesday and found to be very tidy (which was not, apparently, unusual). The bath mat and other items had been recently washed.
The applicant claimed that he and Ms Christian had agreed not to let the debt collector into the house, and that he had last seen her on Sunday afternoon when he had left to talk with the debt collector (in the applicant's account he was wearing jeans, not shorts). He believed that Ms Christian must have been killed by a stranger at some time after 1 p.m. on Sunday.
On the evening of Monday 12 November one of the applicant's neighbours, Ms S., had told him that her eight-year-old daughter, SJS, had been playing in the street on Sunday afternoon and had told her that she had seen Ms Christian. The police interviewed SJS on Wednesday 14 November 1990, when she gave the following answers to their questions:
“Q: When do you remember seeing Julie? A: Sunday. Q: How do you know it was Sunday? A: Because we never went to school and Mum said we could play out. Q: Do you go to school on Saturday? A: No. Q: How do you know it wasn't Saturday? A: Because on Saturday we had off and then it was Sunday. ... Q: [SJS] was asked to stand and imagine she was stood on Teilo Street with her home address behind her; then asked to point which direction she saw Julie walking first. A: Left Q: Then what happened? A: She went to the top of the street, turned round and walked the other way. Q: Who was on the street? A: Just Julie. ... [ED] and [two other children were] there too. Q: Anybody else? A: When Julie walked to the top of the street, when she turned, a man followed her. Q: Where did the man come from? A: The bottom of the street where Julie walked to, then turned. Q: Did the man walk on the side of the street where your house is? A: No where Julie walked on the number 9 side where [ED] lives and the man followed her. ... Q: Where did he go? A: He went to the top of the street and then I didn't see him. Then 'cos Karl had to go in because he was still in his pyjamas. Q: Did you see where Julie went to? A: No. ... Q: So when the man's gone to the end of your street he's gone left? A: Yes. Q: Did you see which way Julie went at the end of your street? A: No. ... Q: Can you remember anything unusual happening on Sunday when you were in the street? Did you hear anything? A: No. Q: What about the Orange Lodge, did you hear them? [Added note: There was a marching band playing in the neighbourhood on Sunday afternoon] A: Yes. Q: Did you? A: Yes. Q: What did you do when you heard them? A: Standing at the corner ... Q: Which one? A: Number 9 side. ... Q: What did you see? A: Nothing because we missed them. ... Q: Can you remember what Julie was wearing? A: She had a big black coat on? Q: Did she have anything on her legs? A: PAUSE. Q: Did you see her legs or did she have trousers on? A: Can't remember. Q: Can you remember anything else she had with her? A: A big carrier bag. Q: Anything else? A: A handbag. Q: What colour was the carrier bag? A: White. Q: Did it have any writing on it? A: I can't remember. Q: What colour was the handbag? A: Black.”
Another girl, ED, who was ten years old at the time, was also interviewed by the police on 14 November 1990 and gave a statement saying that she had seen Ms Christian followed by a stranger in Teilo Street between 2.30 and 3.30 pm on Sunday.
Both children were listed as prosecution witnesses and their evidence was served on the defence prior to the trial.
The applicant's first trial took place in Liverpool Crown Court in January-February 1992. The applicant was represented by experienced leading and junior counsel. It was not until the trial had started that the prosecuting counsel realised that the evidence of ED and SJS did not support the prosecution case. He therefore decided not to call the two girls but instead to tender them for cross-examination.
The judge, who approved this procedure, was asked by the defence counsel whether, before giving evidence, the girls could be shown the statements they had made to the police in November 1990.
ED was permitted by the trial judge to refresh her memory by reading her statement before going into the witness box, and she gave evidence consistent with her statement.
When SJS entered the court room she was very distressed. The judge refused to allow her to read or be reminded of her interview. His reasons for this decision were not clear, but the Court of Appeal in its judgment of 18 February 1994 speculated that it might have been because he had, wrongly, received the impression that the interview notes relating to SJS had not been signed by her and were not, therefore, reliable (in fact the notes had been read to her by the police officer at the time of the interview, and the girl had signed them as being an accurate record). In the witness box she was unable to remember being questioned by a police woman or seeing Julie Christian for the last time.
In the course of his summing-up the judge said, of ED's evidence: “Of course, it is not suggested by the prosecution that [ED] is trying to mislead you about the matter but young children do imagine things, particularly when they have been warned against strangers and cars and so forth, and it is suggested that [ED] is at best confused.”
The jury retired to consider their verdict at 11.23 a.m. on Friday 7 February. The court subsequently adjourned until the following day, when the jury retired again at 10.02 a.m. They returned at 3.22 p.m., when they informed the judge that they had not reached a verdict, so he allowed them to continue their deliberations until 5 p.m., when he adjourned until 10 a.m. on Monday because the jury had still not reached an agreement. Finally, at 11.42 a.m. on Monday 10 February 1992, the jury convicted the applicant of murder, by a majority of 10 to 2. The judge duly sentenced him to life imprisonment.
The applicant appealed against conviction. In its judgment of 18 February 1994, the Court of Appeal observed that had the interview notes been put to SJS:
“... it may be that her memory would have been refreshed, and she would have been able to fill in the gaps which her evidence undoubtedly left.
In so doing, it may well be that she would have provided valuable corroboration for the other little girl, [ED], and it may be that that would then have provided the jury with testimony that would have been worrying, in the light of the crucial finding that the jury had to make as to the time of death. We can do no more than speculate about it.
We are of the view that when cross-examining, [counsel for the defence] was entitled to use the earlier statement that this girl had made, because what she was telling the jury when she indicated that she could not help as to the time and movement of the deceased on the afternoon was plainly inconsistent with what she had told the police during the course of the interview much more proximate in time to the events of which she was being invited to speak.
So, for whatever reason (and we do not seek to ascribe blame) there was here an unfortunate situation which in our judgment amounted to a material irregularity in the trial process.”
The Court of Appeal therefore quashed the conviction and ordered a retrial, observing:
“... we have come to the conclusion, after very anxious consideration, that this appellant is entitled to have a fresh jury consider the whole of this case. That is very unfortunate indeed, particularly with the passage of time that has occurred. ...”
The retrial took place in October 1994. The defence team made several attempts to discuss the case with SJS and her parents before the trial started, but the parents were unwilling for SJS to give evidence and did not, therefore, make contact until the child was summonsed to attend as a witness on 21 October 1994 at the Crown Court. The applicant's solicitor then outlined the trial procedure to SJS and read her the statement which she had made to the police on 14 November 1990. SJS told the solicitor that she had no memory whatsoever of the matters referred to therein, and it was therefore decided that it would not be possible or appropriate to call her as a witness. ED was called, however, and again gave testimony consistent with her police statement.
Once again the trial judge (not the same judge who had sat in the first trial) told the jury, in relation to ED's testimony, to bear in mind that it could be difficult to know what reliance to place upon the evidence of a child.
The jury retired at 11.35 a.m. on Wednesday 25 October 1994. Shortly thereafter they sent a note to the judge asking to see ED's statement. In accordance with the rules of evidence the judge was obliged to refuse this request. The jury were unable to reach a verdict that day and the court adjourned overnight. At 3.20 p.m. on Thursday 25 October 1994 the jury convicted the applicant of murder by a majority of eleven to one.
The applicant again appealed, claiming that his conviction was unsafe in the light of the information given to the police by SJS in November 1990. On 19 March 1996 a differently constituted Court of Appeal rejected the appeal, holding as follows:
“In our judgment there is no basis on which this conviction can properly be regarded as unsafe. In his attractive and skilful submissions, [the applicant's counsel] accepted, as we have said, that he could not point to any irregularity or to anything which could be said to have gone wrong in the second trial. The summing-up, he accepts, was meticulous. What was missing from the second trial, as from the first, was any evidence helpful to the defence from [SJS]. The absence of any such evidence was, as at the first trial, due to her complete inability to recall any potentially material events and, at the second trial, she was not called at all.
This being so, we are unable to accept that this Court should entertain doubt about the safety of the conviction on the basis of material, namely [SJS's] interview by the police, which, being hearsay, was not and could not be before the jury and which is not and cannot be evidence before this Court.
The retrial ordered by the Court of Appeal following the irregularity in the first trial was in order to enable [SJS] to give evidence after she had refreshed her memory from the contents of the interview, the assumption being that she might, in such circumstances, be able to give evidence helpful to the defence. As it turned out, this proved impossible at the second trial because she had no relevant recollection at all.
It was certainly not contemplated at the time of the quashing of the first conviction that the terms of [SJS's] interview with the police could be placed before the jury, for that would have been to drive a coach and horses through the rules in relation to hearsay”.
The court also commented that there was a “strong circumstantial case” against the applicant and that it entertained no doubt about the safety of his conviction.
On 2 March 1999 the Criminal Cases Review Commission (“CCRC”) referred the applicant's conviction back to the Court of Appeal, because it considered, on the basis of newly discovered evidence, that there was a real possibility that the appeal court would find the conviction unsafe. The new evidence mentioned in the referral concerned the failure by the police to investigate or disclose telephone calls made on Tuesday 13 November and Wednesday 14 November 1990 informing them that two boys out playing on Tuesday afternoon had seen a human corpse on a junk yard about 500 metres from the street where the applicant and Ms Christian lived.
In the Grounds of Appeal prepared on his behalf the applicant also argued that his conviction was unsafe, inter alia, because the jury did not hear the evidence of SJS in support of ED.
The Court of Appeal, again differently constituted, gave judgment for the third time on 23 April 2002. Although the issue of SJS's evidence had not been included in the CCRC reference, the court held that, under section 14(5) of the Criminal Appeal Act 1995, it had jurisdiction to consider any ground of appeal relating to the conviction. However, it found that this ground raised no new argument that had not already been considered at the second appeal, and it held that, in the absence of new argument or evidence, the proper exercise of its power to depart from its previous reasoning or conclusions should be confined to “exceptional circumstances”, for example, an intervening change in case-law or tension between the national statutory criteria for safety of a conviction and standards of fairness imposed by the European Convention on Human Rights. The court did not find that exceptional circumstances applied, and it therefore rejected this ground of appeal.
In addition, the court held that the evidence relating to the sighting by the two boys of a dead body lacked consistency and reliability, and, in view of the strong circumstantial case against Mr Thomas, did not afford a reason for regarding the conviction as unsafe.
It is a well established principle of English law that there is no property in a witness. In other words, the parties to civil or criminal proceedings may seek to obtain statements from any person who may be in a position to give material evidence in those proceedings.
A witness may refer to a document in order to refresh his memory provided that the document (a) was made or verified by him contemporaneously with the events in question; (b) is, in certain cases, the original; and (c) can be produced for inspection if called for by the court or the opposing party. Where a witness refers to a memory-refreshing document the evidence remains that which is given orally by the witness.
The rule against hearsay evidence has been formulated as follows:
“Any assertion other than one made by a person giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted”: Cross and Tapper on Evidence, 8th ed., p. 46, approved by the House of Lords in R. v. Sharp, 86 Cr. App. R 274, 278.
The rule covers both assertions made by persons who do not give oral evidence and previous assertions by those who do. It covers oral statements and those contained in documents. If evidence falls within the hearsay rule, it will be inadmissible unless it falls within a statutory or common law exception.
Historically, the reason why hearsay evidence is inadmissible is because:
“It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost”: Teper v R [1952] AC 480, 486, per Lord Normands.
On 20 November 2003 the Criminal Justice Act 2003 received Royal Assent. Part 11 of Chapter 2 of the 2003 Act makes changes to the rules of evidence relating to the admissibility of hearsay evidence in criminal proceedings, with a view to simplifying the law and providing greater certainty as to the circumstances when hearsay evidence will be admitted. The relevant sections came into force on 4 April 2005. Section 120 of the 2003 Act provides (as relevant):
“(1) This section applies where a person (the witness) is called to give evidence in criminal proceedings.
(...)
(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if –
(a) any of the following three conditions is satisfied, and
(b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
(5) The first condition is that the statement identifies or describes a person, object or place.
(6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.
(7) The third condition is that –
(a) the witness claims to be a person against whom an offence has been committed,
(b) the offence is one to which the proceedings relate,
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
(d) the complaint was made as soon as could reasonably be expected after the alleged conduct,
(e) the complaint was not made as a result of a threat or a promise, and
(f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.
(8) For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.”
In addition, the court will have a residual discretion to admit a hearsay statement into evidence if satisfied that it is in the interests of justice for it to be admissible (section 114(1)(d) of the 2003 Act).


ITEMID: 001-4719
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: CARTAGENA OLMOS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant, a Chilean national, was born in 1956. He is presently serving a prison sentence in Sweden.
On 15 December 1987 the applicant came to Sweden with M.R., a Chilean national, and their two children, born in 1975 and 1987. The applicant and M.R. had been living together since 1973. On 20 February 1988 they were granted permanent residence permits. In 1992 their third child was born in Sweden. They separated soon thereafter. All their children have Chilean citizenship. On 19 October 1997 the applicant married another Chilean national, C.D.
By a judgment of 18 February 1998 the District Court (tingsrätten) of Sollentuna convicted the applicant of a narcotics offence and of attempted smuggling of goods, both offences committed in December 1997. The narcotics offence, which was considered as aggravated, involved 53.9 grams of cocaine. The applicant was sentenced to two and a half years in prison. Further, in accordance with Chapter 4, Section 7 of the Aliens Act (Utlänningslagen, 1989:529), the court ordered his expulsion from Sweden and issued a six-year prohibition on his return, i.e. until 18 February 2004. When fixing the applicant’s prison sentence, the court had regard to the detriment suffered by him on account of the expulsion. It also noted that he had been convicted for drunken driving and received suspended sentences in February 1991 and December 1993. In deciding to expel the applicant, the court noted that the applicant was unemployed and had a poor command of Swedish but nevertheless had strong ties to Sweden on account of his children. However, notwithstanding these ties, the seriousness of the crimes constituted special reasons for expelling him.
The applicant appealed to the Svea Court of Appeal (Svea hovrätt). He stated that his wife was pregnant and that he maintained close contacts with his children. On 22 April 1998 the Court of Appeal upheld the District Court’s judgment.
On 26 May 1998 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
In July 1998 the applicant’s and C.D.’s son was born.
The applicant later requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. The request was rejected on 4 February 1999.
On 26 February 1999 the applicant divorced C.D. They have joint custody of their son. On 30 April 1999 the applicant married M.R.
According to a decision of the National Paroles Board (Kriminalvårdsnämnden) of 24 February 1999, the applicant will be released on probation after having served two thirds of his prison sentence on 13 August 1999. However, it appears that the applicant has been indicted for tax crimes and has been summoned to appear before the District Court on 5 August 1999.


ITEMID: 001-106893
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ASSOCIATION RHINO AND OTHERS v. SWITZERLAND [Extracts]
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Pecuniary damage - award
JUDGES: Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 8. The facts of the case, as presented by the parties, can be summarised as follows.
9. The applicant association was set up in Geneva in 1988, under Articles 60 et seq. of the Swiss Civil Code. The name “Rhino” was an acronym for two different French slogans, “Retour des habitants dans les Immeubles Non Occupés” (Return of residents to vacant buildings), and “Restons Habitants dans les Immeubles que Nous Occupons” (“Let’s carry on living in the buildings we occupy”).
10. According to its constitution, the association pursued the following aims:
“The aim of the Association shall be to provide its members with affordable and community-based housing, in accordance with the association-based tenancy system devised by the RHINO project. In particular it shall foster management based on economic and ecological solutions.
The Association shall endeavour to remove any buildings that it occupies from the real-estate market and from speculation.
The Association shall also have the aim of promoting voluntary housing schemes; it shall establish the requisite contacts in order to inform and encourage other association-based projects.
The Association shall foster the opening and maintaining on its premises of open areas for social or cultural activities.”
11. In one of the buildings that it occupied, the association also housed an inexpensive restaurant and occasionally organised various cultural events.
12. Between 1978 and 1988 most of the flats in the three buildings subsequently occupied by the members of the association had remained empty, as their then owners were not intending to rent them out again.
13. On 9 November 1988 about fifty individuals occupied 14 flats in those three buildings.
14. Following the occupation of their flats, the owners requested the Principal Public Prosecutor of the Canton of Geneva to order the eviction of the squatters, and three orders to that effect were issued on 10 November 1988. However, the eviction was never carried out, notwithstanding a Federal Court judgment of 8 May 1991, which invited the Conseil d’Etat (cantonal government) to enforce the Principal Public Prosecutor’s orders. The cantonal authorities did not act upon that judgment, invoking a local policy of tolerating the presence of unlawful occupiers (squatters) provided the owners did not have a building or renovation permit. Confronted with a serious housing shortage in the Geneva area, that policy was directed against the practice of owners who left property vacant for speculative gain and police assistance was thus denied when it would result in leaving the property vacant.
15. From 1992 the owners, who had given up seeking the squatters’ eviction, entered into various negotiations with the association with a view to selling it their properties. Attempts in 1996, 1999, 2000 and 2001 to negotiate the sale of one or two buildings, or to agree on a long-term lease, were unsuccessful, as the amount offered by the association was insufficient for the owners.
16. In 2002 the owners applied for building permits with a view to renovating the buildings. The applicant association and some of the squatters challenged the applications, but their various cases were declared inadmissible for lack of locus standi. The building permits were thus granted and entered into force on 27 September 2005.
17. On 19 October 2005 the Principal Public Prosecutor ordered the occupied buildings to be vacated as work was scheduled to begin on 22 November 2005. An appeal was lodged against the eviction order. In a judgment of 17 January 2006, the Administrative Court for the Canton of Geneva took the view, in substance, that the property owners had to bring proceedings as a priority before the civil courts to secure their rights, and that a law-enforcement measure would only be justified if the interests at stake and the seriousness of the damage incurred by them required immediate intervention that was impossible to obtain in a timely manner from the civil courts. The court further took the view that the owners had accepted the situation and had refrained from immediately exercising their right, such that the occupation was no longer causing a breach of public order.
18. In its judgment of 22 June 2006, the Federal Court dismissed the public-law appeals by the owners and confirmed in substance that the unlawful occupation no longer constituted a breach of public order, on account of the time that had elapsed and the negotiations conducted by the parties, and that the owners had to take their claims to the civil courts.
19. On 4 April 2005, in parallel with the eviction proceedings, the owners of the occupied buildings requested the Court of First Instance of the Canton of Geneva to order the dissolution of the applicant association and the assignment of its assets to the State, invoking the fact that it pursued an unlawful aim, in the sense that it prevented them from exercising their rights as property owners.
20. The Court of First Instance, in a judgment of 9 February 2006, ordered the ex nunc dissolution of the association.
21. Following an appeal, the Court of Justice of the Canton of Geneva upheld the dissolution order on 15 December 2006 but gave it an ex tunc effect, and the association was thus deemed never to have existed. It referred the case back to the court below for the appointment of a liquidator and a public body to receive the association’s assets.
22. On 29 January 2007 the association lodged a public-law appeal and an ordinary appeal with the Federal Court, primarily seeking the setting-aside of the Court of Justice’s judgment and the dismissal of the dissolution action. On the same day, the owners of the buildings brought claims for possession before the Court of First Instance.
23. The Federal Court upheld the decision of the court below by two judgments given on 10 May 2007. In the judgment on the ordinary appeal, it took the following position on the complaint under Article 11 of the Convention:
“4.2 As regards the aims actually pursued, the applicant association refers to the commentary by Riemer (n. 41 on Articles 76-79 of the Civil Code), which provides that in the event of unlawful acts being committed by the decision-making bodies of an association in the pursuit of its lawful aim, it is under Article 55, paragraphs 2 and 3, of the Civil Code (action for damages) and not under Article 78 thereof (dissolution of the association) that action should in general be taken. The applicant, however, overlooks the fact that the present case precisely does not concern such a situation but rather a situation of compatibility between the acts of the association’s decision-making bodies and its aims (see the above-cited commentary, p. 921).
Furthermore, the applicant association claims that the inhabitants have occupied the buildings at issue for a long time as a result of the tolerance of the authorities and the owners and that they should thus be regarded as having a tacitly-granted lease. That argument is, however, contradicted by the observations of the Cantonal Court, which found, in a manner that binds the Federal Court (Article 55 paragraph 1 (c) and Article 63 paragraph 2, of the Federal Judicial Organisation Act), that the members of the applicant association have been occupying the buildings without authorisation and refuse to vacate them, resisting any eviction.
4.3 Similarly, the applicant’s view that the owners should have sought to fulfil their aim by another remedy (action invoking the constitutional guarantee of the right to property, actions to establish property rights) is irrelevant, since the dissolution of the applicant association, that is to say the primary occupier of the buildings according to the decision appealed against (p. 13, point 4.2.3), is in any event a legally admissible means of putting an end to the occupation. The question whether there would be other means apart from that one is unimportant in the present case.
4.4 The applicant association further alleges that, in the present case, there has been no breach of an ‘objective’ right, but possibly of a mere ‘subjective’ right. However, it disregards the fact that property is also protected against an occupation such as that in issue here by rules of objective law (Constitution, Civil Code, Criminal Code, etc.). Moreover, the present case cannot be compared with that cited by the applicant association – premises of a club built in breach of an obligation not to erect – since that had nothing to do with the aim of the association.
4.5 Referring to Anton Heini (Das Schweizerische Vereinsrecht, Basle 1988, p. 39), the applicant association further claims that to order the dissolution of an association whose activity is illegal, the illegality has to be permanent. The question whether this criterion is decisive may remain undecided, as in the case of the applicant association it is, in any event, satisfied.
4.6 In this context, the applicant refers to other aims in its constitution and complains about the failure to apply to its case Article 20 paragraph 2 of the Code of Obligations on partial nullity. The question whether that provision (in combination with Article 7 of the Civil Code) is in fact applicable to situations under Article 78 of the Civil Code is a matter of debate in legal writings (answered in the affirmative by Riemer, RDS 97/1978 I p. 95 n. 81 and Commentaire bernois, n. 40 on Articles 76-79 Civil Code; and in the negative by Heini/Scherrer, Commentaire bâlois, 3rd edition, n. 3 on Article 78 of the Civil Code; Heini/Portmann, SPR II/5, 3rd edition, n. 169; Jean-François Perrin, Droit de l’association, Zurich 2004, p. 208). The Federal Court has settled the matter in the affirmative, at least for other legal entities (Federal Court Judgment 73 II 81 concerning a foundation and Federal Court Judgment 80 II 123 concerning a cooperative entity). The question can, however, remain undecided in the present case. The Cantonal Court examined this question and arrived at the conclusion that the applicant association’s unlawful aim was predominant in comparison with its other constitutional aims, because the association had been set up above all with that aim in mind. The applicant association has not disputed this, but has merely asserted that its other aims are ‘essential’. Moreover, it does not claim that the conditions of Article 20 paragraph 2 of the Code of Obligations are met, in particular that the association would nevertheless have been constituted without the constitutional clause that is null and void; it has simply claimed that it ‘could continue to operate’ even in the absence of the constitutional aim that has been declared unlawful, but that is not decisive for the purposes of Article 20, paragraph 2, of the Code of Obligations.
4.7 In this context, the applicant association further criticises, referring to Riemer (Commentaire bernois, n. 56 on Articles 76-79 Civil Code), the order for its dissolution ex tunc. Since it has, for the past 18 years, interacted with other private persons, entered into contracts, conducted negotiations and acted before the courts, only a dissolution ex nunc would be appropriate.
The Cantonal Court quite rightly ordered its dissolution ex tunc, as the association has pursued its unlawful aim since its foundation (see Riemer, loc. cit., n. 57). As to the consequences for the legal relations created in the meantime, it will be for the liquidator to decide.
5. The applicant association has, lastly, invoked a violation of Article 23 of the Constitution (freedom of association), Article 36 of the Constitution (restriction of fundamental rights) and Article 11 of the European Convention on Human Rights (freedom of association).
5.1 Since the applicant complains of an improper application of federal law that, it also alleges, has breached one of its rights under the Constitution or the Convention, the applicant is in fact invoking, as it has itself observed by referring to Fabienne Hohl (Procédure civile, vol. II 2002, p. 298 n. 3237), a violation of federal law. This complaint therefore falls within the context of the ordinary appeal.
...
5.3 Article 11 ECHR secures, in particular, everyone’s right to freedom of assembly and freedom of association (paragraph 1). The exercise of that right is, however, subject to restrictions, which, being prescribed by law, constitute measures that are necessary, in a democratic society, for national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (paragraph 2, first sentence).
The Cantonal Court, based on a decisive statutory provision (Article 78 of the Civil Code), ordered the applicant association’s dissolution on account of its unlawful constitutional aim (breaching, among other things, the guarantee of the right to property under Article 26, paragraph 1, of the Constitution) and on account of its unlawful activity (occupation of property belonging to third parties). Those two situations are not covered by the guarantee of the right to freedom of assembly and association (Article 11, paragraph 1, ECHR), but fall within the admissible restrictions to that right (Article 11, paragraph 2, ECHR; see the judgment of the European Court of Human Rights of 13 February 2003 in the case of Refah Partisi (The Welfare Party) and Others against Turkey, concerning the dissolution of a political party and the right to freedom of assembly and association). The fact that in the case of the dissolution of a political party it was necessary, as the applicant alleged, to adopt particular restraint or lay down strict demands is correct (see judgment of 13 February 2003, cited above; Jens Meyer-Ladewig, EMRK, Baden-Baden 2003, n. 22 on Article 11 ECHR with references concerning the relationship with freedom of expression under Article 10 ECHR), but it is not decisive in the present case as the applicant association, in spite of a certain political component in its aim and the implementation thereof, is not a political party and, moreover, there is not a sufficiently close connection with freedom of expression”.
24. On 14 May 2007 the date on which the judgment was served, the Head of the Department of Construction and Information Technology of the Canton of Geneva invited the owners to explain the fact that they had not yet made use of their building permits. The owners replied that the work could not be carried out without evicting the squatters, which they had been trying to do for years without success.
25. On 24 May 2007 the Head of the Department ordered the owners to carry out the necessary work to remedy the state of degradation of the buildings and to ensure that they were sufficiently habitable and maintained. The work was to begin within forty-five days, failing which it would be undertaken by the authorities at the owners’ expense. The owners repeated that the work could not be carried out without the buildings being evicted.
26. In a judgment of 26 June 2007 the Court of First Instance of the Canton of Geneva appointed a liquidator, who took various measures, in particular the freezing of post-office and bank accounts, the termination of the contract of employment of the association’s secretary and a request for the restitution of fees already paid to the lawyers of the applicant association.
27. On 3 July 2007 the eviction proceedings were suspended by the Court of First Instance because the occupiers, acting individually, undertook to recognise the existence of rent-based lease agreements between themselves and the owners.
28. On 23 July 2007 the owners recovered possession of their occupied properties, initiating two simultaneous decisions: one, an on-the-spot police check of the squatters’ identity, and the other, an order to begin the renovation work, addressed to the owners, which enabled them to recover possession with police assistance.
29. A number of occupiers appealed against the eviction decision to the Cantonal Appeals Board for construction-related matters. Its decision to declare the appeals inadmissible was upheld by the Administrative Court and by the Federal Court in a judgment of 12 February 2009.
30. Articles 52-59 of the Civil Code of 10 December 1907 govern legal entities. The relevant provisions for the present case read as follows:
Article 55
“The governing bodies express the will of the legal entity.
They bind the legal entity by their legal decisions and by other relevant actions.
The governing officers are also personally liable for their wrongful acts.”
Article 57 (Application of assets)
“On dissolution of a legal entity, and unless otherwise provided by law, the constitution, the founding charter or the governing bodies, the assets of a dissolved legal entity pass to the public body (Confederation, Canton, Commune) to which the entity was affiliated according to its object.
Such assets must be used as far as possible for their original purpose.
Where a legal entity is dissolved on account of having an immoral or unlawful object, the assets pass to the public body even where otherwise provided.”
31. Articles 60 to 79 of the Civil Code lay down rules for associations. Article 60 reads as follows:
“1. Associations with a political, religious, scientific, cultural, charitable, social or other non-commercial purpose acquire legal personality as soon as their intention to exist as a corporate body is apparent from their constitution.
2. The constitution is produced in writing, containing the necessary provisions as to the purpose, resources and organisation of the association.”
32. Article 78 of the Civil Code provides for the dissolution of an association by judicial decision. This provision reads as follows:
“Dissolution shall be ordered by the court, at the request of the competent authority or an interested party, where the association’s purpose is unlawful or immoral.”
VIOLATED_ARTICLES: 11


ITEMID: 001-110947
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SUSLOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1969 and prior to his conviction lived in Ryazan.
6. On 28 December 2004 the investigator of the Ryazan Regional Prosecutor’s Office, with approval by a prosecutor, requested the Sovetskiy District Court, Ryazan, to remand the applicant in custody on suspicion of banditry and involvement in an organised criminal group.
7. On the same day the applicant was arrested.
8. In the meantime, on 29 December 2004 the Ryazan Sovetskiy District Court remanded the applicant in custody. The court held as follows:
“The crimes of which [the applicant] is suspected fall into a category of especially grave crimes punishable by over two years’ imprisonment.
Opting for a more lenient preventive measure for [the applicant] is impossible, taking into account the particular gravity of the crimes of which [the applicant] is suspected, as well as the fact that disclosure of the identity of members of a criminal gang, including [the applicant], can create a real threat to the safety of witnesses, victims and their relatives, which follows from [statements] by [witness D.] ...”
9. On 21 January 2005 charges of banditry, involvement in a criminal group, extortion and fraud under Articles 209 § 2, 210 § 2, 163 § 3 and 159 § 3 of the Criminal Code were brought against the applicant. He was questioned as the defendant.
10. On 25 January 2005 the Ryazan Regional Court upheld the decision of 29 December 2004 on appeal.
11. On an unspecified date the applicant challenged the lawfulness of his arrest. Stating that he was an advocate, the applicant claimed that his arrest required the prior consent of a court. On 20 March 2007 the Ryazan Regional Court, acting as the most senior level of jurisdiction, found the applicant’s arrest not to have breached the requirements of the domestic law.
12. On 24 February 2005 the Ryazan Sovetskiy District Court extended the applicant’s detention until 24 June 2005. The court held as follows:
“The crimes [charged against the applicant] belong, pursuant to Article 15 of the Criminal Code, to the category of particularly grave crimes, which according to Article 108 of the Code of Criminal Procedure gives ground for the application of a [custodial measure]. ...
At the present time it is necessary to carry out several operational and investigative actions, to establish the whereabouts of the known members of the criminal gang, to bring charges against them, to carry out interrogations and confrontations, as well as to familiarise the defendants, the victims and their counsel with the case-file material. ...
The argument by defence counsel about the change of circumstances which laid the basis for application of a custodial measure cannot be taken into consideration.
The reference of defence counsel to the fact that the charges against [the applicant] do not involve an episode involving [witness D.], whose statement that he had received death threats from [the applicant] had been the ground for application of a custodial measure, is unsubstantiated.
A statement by [witness D.], his handwritten explanation, as well as the record of the viewing of a video recording of 6 May 2002, from which it follows that D. is a witness to a crime, [that he] fears for his life and [that] the threat comes, inter alia, from [the applicant], have been examined by the judge [...] as matters characterising [the applicant’s] personality and giving grounds to believe that his being at large could constitute a real danger to safety for [witness D.] as for other witnesses, victims and their families.
Therefore, taking into account the foregoing and the nature of the crimes with which [the applicant] is charged, the court concludes that there are sufficient grounds to believe that [if not detained, the applicant] may interfere with the proceedings in the criminal case by influencing witnesses.
In such circumstances there are no grounds for altering the custodial measure to a more lenient one. ...”
13. On 31 March 2005 the Ryazan Regional Court upheld the above decision on appeal.
14. On 23 June and 15 September 2005 the Sovetskiy District Court extended the applicant’s detention until 24 September and 28 December 2005 respectively. The court relied on the gravity and the nature of the charges, the particular complexity of the case and the necessity to carry out subsequent investigative actions. It further invoked the risks of the applicant’s absconding and hampering the criminal proceedings by exerting pressure on witnesses and victims, and the absence of any grounds for altering the custodial measure.
15. On 18 October 2005 the Ryazan Regional Court upheld the decision of 15 September 2005 on appeal.
16. On 28 December 2005 the Ryazan Regional Court extended the applicant’s detention until 24 March 2006. The court held as follows:
“It appears from the case-file material that the armed gang of which [the applicant] was a member had and has well-tested systems of secrecy and defence from law-enforcement bodies (отработанные системы конспирации и защиты от правоохранительных органов); if at liberty [the applicant] might take action against the ongoing investigation, including by way of exerting unlawful pressure on witnesses and victims.
It follows from the case-file material that in the course of operational search activities officers of the Organised Crime Unit at the Ryazan Regional Department of the Interior obtained information to the effect that the members of the Osokinskaya criminal group, knowing that criminal proceedings in connection with its criminal activity had begun, were making inquiries about those who had been questioned in the case as witnesses and victims, with the view of subjecting them to unlawful influence. ...”
17. On 14 February 2006 the Supreme Court of Russia upheld the above decision on appeal.
18. On 21 March 2006 the Ryazan Regional Court further extended the applicant’s detention until 28 June 2006, that is for a total duration of eighteen months. In taking the relevant decision the Regional Court had regard to the particular gravity of the charges against the applicant and the risk that he would exert pressure on witnesses (the court applied the wording of the previous extension order of 28 December 2005). The court also examined the possibility of applying a more lenient preventive measure and dismissed it.
19. On 26 April 2006 the charges against the applicant were rectified. They involved banditry, involvement in a criminal group, extortion, fraud, pressurising those involved to complete deals, organising robbery, murder, attempted murder and infliction of grave bodily harm, and trafficking in firearms and ammunitions under Articles 209 § 2, 210 § 2, 163 § 3, 159 § 3, 179 § 2, 162 § 3 (in conjunction with Article 33 § 3), 105 § 2 (in conjunction with Articles 30 § 3 and 33 § 3), 111 § 3 (in conjunction with Article 33 § 3) and 222 § 3 (alone and in conjunction with Article 33 § 3) of the Criminal Code.
20. On 4 May 2006 the applicant and his lawyer were informed that the pre-trial investigation had been terminated. From the documents submitted by the Government it can be seen that they both signed the document on termination of the pre-trial investigation and expressed the wish to read the case file, both together and separately.
21. On 18 May 2006 the applicant started reading the case file.
22. On the same day the applicant’s lawyer was invited to study the case file. This is supported by a letter inviting the applicant’s lawyer to appear at the IZ-62/1 facility in Ryazan at 10 a.m. to study the case-file material. The letter bears a handwritten note made by the head of the bar association, of which the applicant’s lawyer was a member: “Received for transfer to A. Yudin. 18 May 2006. Signature”.
23. On 23 June 2006 the Ryazan Regional Court extended the applicant’s pre-trial detention until he and his lawyer had finished studying the case file (consisting of seventy-five volumes), but not beyond 24 September 2006. The court held as follows:
“[...] Pursuant to Article 109 § 7 of the Code of Criminal Procedure, if upon completion of a pre-trial investigation the time-limits set out in Article 109 § 5 for giving the accused and his counsel access to the case file have been complied with, but the thirty-day period proves insufficient for them to read the entire file, an investigator [...] may submit to the court, no later than seven days before the expiry of the maximum detention period, a request for extension of the period of detention. In [the applicant’s] case the above-mentioned requirements of law have been complied with.
In his request for extension of [the applicant’s] detention pending the investigation until [the applicant] and his counsel had finished reading the file [...] the investigator indicated that at the present moment there were no grounds for altering or discontinuing the application of a [custodial measure]. As before, there are sufficient reasons to believe that, if released, [the applicant], taking into account the gravity of the charges against him, may abscond or otherwise obstruct the proceedings in the case. Therefore, the circumstances which led the court to apply the custodial measure to [the applicant] have remained unchanged.
At the same time, extending [the applicant’s] detention until he and his counsel have finished reading the case file... without indicating a specific end-date contradicts the requirements of Article 109 of the Code of Criminal Procedure. The above Article implies that the extension is granted for the time requested by the investigation authorities. [However], extending [the applicant’s] detention without indication of a specific end-date... would have worsened [his] situation and removed the preventive measure from judicial control.
On 7 February 2006 the Deputy Prosecutor General extended the time-limit for pretrial investigation... until 24 September 2006 inclusive.
Therefore, the court extends [the applicant’s] detention until he and his counsel have finished reading the case file..., until 24 September 2006 inclusive, that is until the expiry of the time-limit for the pre-trial investigation. ...
The argument put forward by the defence, to the effect that the investigation authorities have breached the requirements of Article 109 § 5, is unsubstantiated.
It follows from the record on termination of the investigative actions of 4 May 2006 that [the applicant] and [his lawyer] expressed their wish to read the case file both together and separately.
On 18 May 2006 the head of the Central Bar Association [of Ryazan], K., received a notification in the name of [the applicant’s lawyer Yud.] informing [the latter] that [the applicant] had started reading the case file and that he was also invited to appear on 19 May 2006 at the Ryazan IZ-62/1 remand prison to [study the case file].
According to the record of the studying of the case file and statements made by [the applicant] and [his lawyer], they met in the remand prison on several occasions after 18 May 2006, yet did not discuss when they would jointly study the case file.
It appears from the foregoing that until 31 May 2006 [applicant’s lawyer Yud.] deliberately did not appear to study the case file, to give himself an opportunity to use this situation before the court.
The requirements of Article 109 § 5 of the Code of Criminal Procedure were therefore complied with...”
24. On 16 August 2006 the Supreme Court of Russia upheld the above decision on appeal.
25. On 18 September 2006, and 18 January, 21 May and 11 September 2007, the Ryazan Regional Court further extended the applicant’s detention until he and his lawyer had completed their reading of the case file, but not beyond 24 January, 24 May and 24 September 2007, and 24 January 2008 respectively. All the decisions were worded similarly to the decision of 23 June 2006.
26. On 31 October 2006 and 14 March, 17 July and 24 October 2007 respectively, the Supreme Court of Russia upheld the above decisions on appeal.
27. Following the request by the investigator, on 31 October 2007 the Ryazan Sovetskiy District Court limited until 21 December 2007 the time for the applicant and his lawyer to study the case file.
28. On 27 December 2007 the investigator took a decision that the reading of the case file by the applicant and his lawyer should be terminated.
29. On 17 January 2008 the applicant and his lawyer signed the record to the effect that they had completed their reading of the case file.
30. On 18 January 2008, however, the Ryazan Regional Court further extended the applicant’s detention until 24 April 2008, with reference to Article 109 § 7 of the Code of Criminal Procedure. The court had regard to the fact that the applicant’s lawyer had submitted a request (the nature of the request was not specified in the relevant court decision) which had not yet been processed, that other co-defendants had not finished reading the case file, and also to the gravity and the nature of the charges against the applicant and the risk of his absconding or otherwise interfering with the course of the proceedings.
31. On 8 April 2008 the criminal case against the applicant and fifteen others was transferred to the Ryazan Regional Court for trial.
32. At the preliminary hearing on 23 April 2008 the Ryazan Regional Court extended the applicant’s and nine other co-defendants’ detention during judicial proceedings until 8 October 2008. In so far as it concerned the applicant, the decision read as follows:
“... [The applicant] was arrested on 28 December 2004. His detention has been repeatedly extended in accordance with the criminal procedural law, the last time until 24 April 2008, for a total of three years, three months and twenty-eight days.
...
Pursuant to Article 110 of the Code of Criminal Procedure a preventive measure can be lifted or changed if it is no longer necessary or if the grounds for its application have changed.
It follows from the material examined by the court that the factual circumstances which had served as the ground for the court decisions to apply a custodial measure to the defendants and its subsequent extension have not changed and remain... sufficient, from the point of view of the principle of reasonableness, to maintain the [above] preventive measure. No convincing arguments were put forward by the defence as to the existence of any new factual or legal grounds for altering the preventive measure.
The circumstances pointed out by the defendants and their counsel such as [the defendants’] positive references, their family situation, [the existence of] permanent residence, [their] state of health and the necessity to support their families, do not preclude a risk of them absconding from justice or otherwise obstructing the proceedings in the case, since the defendants are charged with particularly grave crimes, including banditry. ...
The [above] circumstances are not favourable for replacing the [custodial] measure with [a more lenient one].
Notwithstanding the overall length of the defendants’ detention, the existing risk of their absconding is a sufficient ground for limiting their [right to] liberty of person. Furthermore, the extension of detention in respect of defendants charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses, as well as the public interest, which, in spite of the presumption of innocence, outweighs the respect for individual liberty. ...”
33. On 17 June 2008 the Supreme Court of Russia upheld the above decision on appeal.
34. In the meantime, on 7 June 2008 the Ryazan Regional Court had scheduled the opening date of the trial and maintained the preventive measures applied to the applicant and his co-defendants.
35. On 24 September 2008 the Ryazan Regional Court extended the applicant’s and nine other co-defendants’ detention for three months, until 8 January 2009. It found as follows:
“... [The defendants] have been charged with banditry and involvement in criminal community, - criminal offences directed against public safety and public order. [The applicant and four other co-defendants] have also been charged with aggravated murders. The crimes charged against the defendants belong to a category of grave and particularly grave crimes the punishment for which not only exceeds two years’ imprisonment, but also exceeds the time the defendants had spent in custody so far.
According to the information contained in the case file regarding the [defendants’] personalities:
- [the applicant and seven others], who have families and children, were not working for a long time before their arrests; ...
It also follows from the submissions by the prosecution that:
[Prosecution witness Yezh.] submitted to the court that pressure had been exerted on him by the defendants in respect of whom the custodial measure had been applied with the purpose of forcing him to make false statements about them.
[Defendant S.] who admitted his guilt [...] but who had not yet been questioned by the court on the merits of the charges, asked the court to take safety measures in his respect until he had been questioned, fearing [intimidation] by [the defendants in detention]. ...
Safety measures had been taken in respect of a number of witnesses who [also] feared for their safety. Some of them... were questioned by the court anonymously and in conditions in which they could not be seen by others present during the proceedings.
[Separate proceedings were instituted against several other suspects who are being searched for.] ...
The breaches of court orders committed by the defendants during the questioning of prosecution witnesses show that they were attempting to influence witnesses even in court.
Of 500 [prosecution witnesses] the court has questioned only thirty-two.
Therefore, it has been established that the court had not questioned the majority of the witnesses and victims; [that] there are grounds to be concerned about [the risk of] unlawful influence over them by the defendants; [that] there are witnesses and one of the defendants who fear such influence; [that] the defendants have actual opportunity to exert such influence even while they are in custody; [and that] there are witnesses who have already been intimidated [by the defendants].
Analysis of the above information gives grounds to believe that, if released, the defendants not only may abscond and maintain their criminal activity, but also influence victims and witnesses who have not yet been questioned by the court, thereby obstructing the administration of justice.
The defence has not put forward any circumstances preventing the defendants from being detained in custody; nor can any such circumstances be seen from the case file. The defence has also not put forward a valid argument regarding the existence of new factual or legal grounds for altering the custodial measure.
The circumstances mentioned by the defence... such as [the defendants’] positive references, their [family situation] and [existence of permanent residence]... cannot be viewed by the court as preferential and sufficient grounds for altering the custodial measure. Besides, the existence of these circumstances as such does not exclude the possibility that the defendants will abscond or otherwise obstruct the proceedings in the case, since they are charged with particularly serious crimes, including banditry, punishable with imprisonment.
When examining parties’ requests concerning custodial measures the court takes into consideration: the gravity and the nature of the charges against the defendants; the reasonableness of the suspicion justifying the placement of each defendant in custody; the time each of the defendants had already spent in custody; personal data in respect of each of the defendants; [and] the possibility of applying a more lenient preventive measure.
The [defendants’] detention had been ordered and repeatedly extended in accordance with the rules of criminal procedure.
Article 255 of the Code of Criminal Procedure provides for the possibility of extending detention during criminal proceedings beyond six months in cases concerning serious or particularly serious criminal offences, each time for no longer than three months.
It follows from the case-file material that the factual circumstances which [were taken into consideration by the courts] when [applying and extending] the custodial measure had not only remained unchanged, but had been expanded by new and substantial circumstances, which, taken together, are evaluated by the court as sufficient... grounds for maintaining the custodial measure.
The risk existing at the current stage of the proceedings of the defendants’ absconding is a sufficient ground for [further] deprivation of [their] liberty, notwithstanding the lengthy term of their pre-trial detention. Besides, the extension of detention in respect of those charged with banditry is justified by the necessity to protect the rights and interests of victims and witnesses, as well as [the necessity to protect] the public interest, which, in spite of [the defendants’] presumption of innocence, outweighs respect for individual liberty. ...”
36. On 21 November 2008 the Supreme Court of Russia upheld the above decision on appeal.
37. On 22 December 2008 the Ryazan Regional Court extended the applicant’s and nine other co-defendants’ detention for three months, until 8 April 2009 inclusive. The court applied the same reasoning as in its extension order of 24 September 2008. In addition, the court took into account that the members of the criminal group of which the applicant was allegedly a member helped each other whenever criminal proceedings were instituted against either of them, so that the member would escape punishment or receive a less severe one. The court specifically referred to two examples of such behaviour by members of the criminal group in question.
38. On 24 February 2009 the Supreme Court of Russia upheld the above decision on appeal.
39. On 23 March, 15 June and 24 September 2009 the Ryazan Regional Court extended the applicant’s and nine other co-defendants’ detention each time for three months, until 8 July and 8 October 2009 and 8 January 2010 respectively. The court adopted the same reasoning as in its previous extension orders and addressed new arguments raised by some of the defendants (not the applicant).
40. On 27 April, 30 July and 3 November 2009 respectively the Supreme Court of Russia upheld the above extension orders on appeal.
41. On 21 December 2009 the Ryazan Regional Court extended the applicant’s and his nine co-defendants’ detention during judicial proceedings for an additional three months, until 8 April 2010. The court added to its previous reasoning the fact that during the trial some of the witnesses and the victims had changed their statements in so far as they concerned the applicant and two other co-defendants. The court further referred to the large volume of case material and evidence, involving multiple episodes and numerous participants.
42. On 24 March, 30 June, 23 September and 20 December 2010 the Ryazan Regional Court further extended the applicant’s and his nine codefendants’ detention during judicial proceedings, each time for three months, until 8 July and 8 October 2010 and 8 January and 8 April 2011 respectively. The court applied the same line of reasoning as in its previous extension orders. The extension order of 30 June 2010 further addressed the defendants’ argument that the length of their detention during judicial proceedings was excessive:
“The defendant’s argument, that their detention during judicial proceedings has been excessively long, is disproved by the trial itself. The multi-episode criminal case with a large number of participants has been being examined [by the court] on the merits since 30 July 2008; hearings are only adjourned at the request of the defence or when defence counsel are unable to attend; there are no unjustified interruptions in the proceedings. The court has repeatedly applied ... measures to all the defendants detained during judicial proceedings... for breaches of court orders and [manifest actions aimed at] delaying the proceedings. The legal and factual complexity of the case, the conduct of the defendants... and the organisational measures being taken by the court show [that the trial is being carried out in compliance with the reasonable time requirement].”
43. On 28 March 2011 the Ryazan Regional Court convicted the applicant of banditry, aggravated murder, robbery, extortion, fraud and pressurising others to complete deals, and sentenced him to sixteen years’ imprisonment. The judgment ran to 335 pages.
44. On 19 October 2011 the Supreme Court of Russia upheld the above judgment on appeal.
45. Article 22 of the Constitution provides that everyone shall have the right to freedom and inviolability of person. It further provides that arrest, detention and remand in custody shall be allowed only by a court decision.
46. The police may arrest a person suspected of committing an offence punishable by imprisonment if the person is caught in the act of committing an offence or immediately after committing it. No judicial authority is required for the arrest (Article 91).
47. Within forty-eight hours of the time of the arrest a suspect must be released if a preventive measure in the form of remand in custody has not been imposed on the person or a final decision has not been deferred by a court. When remand in custody is deemed necessary, an application must be lodged to that effect with a district court by a prosecutor or by an investigator with the consent of a prosecutor (Article 94).
48. “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).
49. 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).
50. 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).
51. After arrest the suspect is placed in custody “pending investigation”. The maximum permitted period of detention “pending investigation” must not exceed two months. It may subsequently be extended up to six months (Article 109 § 1).
52. Further extensions to up to twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator’s request for extension must be approved by the Regional Prosecutor (Article 109 § 2).
53. An extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of particularly serious offences, upon an investigator’s request approved by the Prosecutor General or his Deputy (Article 109 § 3).
54. Extension of detention beyond eighteen months is prohibited and the detainee must be released immediately, unless the prosecution’s request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (Article 109 § 4).
55. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (Article 109 § 5).
56. If access is granted on a later date the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6).
57. If access is granted thirty days before the expiry of the maximum period of detention but the thirty-day period proves insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period. If several defendants are involved in the proceedings and the thirty-day period is insufficient for at least one of them to read the entire case file, the investigator may request the court to extend the period of detention in respect of those defendants who have finished reading the case file, provided that the need for a custodial measure for them persists and that there are no grounds for choosing another preventive measure (Article 109 § 7).
58. Within five days of receipt of a request for an extension, the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted the period of detention is extended until such time as will be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8).
59. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during judicial proceedings”). The period of detention “during judicial proceedings” 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).
60. A decision to open a criminal case against an advocate is taken by a prosecutor with prior approval by a district judge (Article 448 § 1).
61. Advocates are not immune from arrest (Article 449).
62. Prior to institution of criminal proceedings against an advocate investigative actions are carried out following approval by a district judge (Article 450 § 5).
63. Examining the compatibility of Article 97 of the RSFSR CCrP (now replaced by Article 109 of the CCrP, the sole difference between the two Articles being that Article 97, in contrast to the new Article 109, imposed a six-month limitation on the maximum period of detention for the purpose of studying the case file with the Constitution, on 13 June 1996 the Constitutional Court ruled as follows:
“...affording the defendant sufficient time for studying the file must not result in... his being detained indefinitely. Indefinite detention would amount to punishment of the defendant for exercising his procedural rights and thereby inducing him to waive those rights...”
64. On 25 December 1998 the Constitutional Court issued a further clarification of its position (decision no. 167-O), finding as follows:
“3. ...the studying of the file [by the defendant and his counsel] is a necessary condition for extending the term of detention [beyond eighteen months] but it may not be, taken on its own as a sufficient ground for granting such an extension... For that reason, in each case the prosecutor’s application for extending the period of detention beyond eighteen months (Article 97 §§ 4, 6 of the RSFSR CCrP) must refer not to the fact that the defendant and his counsel continue to study the file... but rather to factual information demonstrating that this preventive measure cannot be revoked and the legal grounds for its continued application remain...
6. ...Article 97 § 5 of the RSFSR CCrP expressly provides that, on an application by a prosecutor, a judge may extend a defendant’s detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [trial] court, but by no longer than six months. Accordingly, the law does not provide for the lodging of repeated applications for extension of the defendant’s detention, even after an additional investigation [has been carried out]... In the absence of an express legal provision for repeated extensions of detention on that ground, any other interpretation of [Article 97] would breach the prohibition on arbitrary detention within the meaning of the Constitutional Court’s decision of 13 June 1996.”
65. By its decision no. 184-O of 6 June 2003 the Constitutional Court declined to examine a complaint by a Mr Yest., in which he challenged the compatibility with the Constitution of Article 109 § 8 of the Code of Criminal Procedure, in so far as it allowed the extension of detention pending investigation beyond the maximum time-limit and indefinitely while the defendant finished reading the material in the case file. The Constitutional Court held that such an extension was only possible if there still existed “sufficient grounds to believe” that the accused might abscond during the investigation or trial, reoffend or otherwise obstruct the establishment of the truth, as provided by Article 97 of the Code of Criminal Procedure. In so far as the challenged provision did not set a specific time-limit for holding the defendant in custody while he studied the case file, the Constitutional Court considered that it allowed for the possibility of determining such a time-limit for each particular case, depending on its specific features, on condition that the grounds for detention established in Article 97 had been sufficiently confirmed. The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention. Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order, as well as to make an application for lifting or altering the custodial measure.
66. By decision no. 352-O of 11 July 2006, the Constitutional Court confirmed its position, by reference to above-cited decision no. 167-O, that in the absence of an express provision to that effect, time-limits during a pre-trial investigation may not be repeatedly extended, particularly on the same grounds, in excess of the maximum time-limit set out in the CCrP.
67. By its decision no. 271-O-O of 19 March 2009, the Constitutional Court declined to examine a similar complaint by a Mr R. With reference to its previous decisions of 13 June 1996, 25 December 1998 and 6 June 2003, the Constitutional Court held that even though Article 109 § 8 did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant had committed the offence, but should mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending, as well as the importance of the subject matter of the proceedings, the complexity of the case, the conduct of the defendant and other relevant factors.
68. In its decision no. 22 of 29 October 2009 “On the Application by the Courts of Preventive Measures in the Form of Remand in Custody, Bail and House Arrest” the Plenum of the Supreme Court held as follows:
“18. [...] Pursuant to Article 109 § 7 of the Code of Criminal Procedure, following a request by an investigator the court may extend an accused’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [trial] court, if upon completion of the pre-trial investigation the accused has been given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in Article 109 §§ 2 and 3 [six, twelve, eighteen months]. In that case the relevant extension order should indicate the exact period for which the extension is made.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1