ITEMID: 001-58116
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 1997
DOCNAME: CASE OF GRIGORIADES v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;No violation of Art. 7;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 10. The applicant was a conscripted probationary reserve officer holding the rank of second lieutenant.
11. In the course of his military service, the applicant claimed to have discovered a number of abuses committed against conscripts and came into conflict with his superiors as a result. Criminal and disciplinary proceedings were instituted against him. The former ended with his acquittal. However, a disciplinary penalty was imposed on him, as a result of which he had to serve additional time in the army.
12. On 30 April 1989 the applicant was granted twenty-four hours’ leave. He failed to return to his unit after its expiry. He was declared a deserter on 6 May 1989 and criminal charges were brought against him.
13. On 10 May 1989 the applicant sent a letter to his unit’s commanding officer through a taxi driver.
14. The letter read as follows:
“PERSONAL STATEMENT
After two whole years of military service as reserve officer cadet, I am obliged to inform you that I object to the prolongation of my military service following a penalty imposed on me for defending soldiers’ rights. Judging from my experience to this date, I think that it was imposed as part of a general approach intended to suppress both freedom of personality and the vindication of constitutional rights and personal freedom. Apart from the personal cost, I generally consider that imposing a penalty on young soldiers is inadmissible and unconstitutional, all the more so when such penalty is related to the struggle of young people for respect for the ideological – social human rights of people and [their struggle] to defend their personality against the humiliations of the military apparatus. Having maintained for twenty-four months a fighting stance and a conscious position on that subject, I reserve the right, which is also a duty, to establish social justice and peace, now more than ever and, being fully aware of my actions which are imperatively dictated to me in the interests of society, hereby to DENOUNCE:
That the army is an apparatus opposed to man and society and, by its nature, contrary to peace.
I am now absolutely certain that the process of military service is responsible for crimes and aggressiveness in society since it has created a psychology of violence, overcoming in this manner all moral and psychological resistance to violence. The army remains a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence, through a hierarchy of fear guided by an illiberal and oppressing set of Standing Orders (No. 20-1), records of political beliefs, etc. The truth is that the living conditions in the army are unacceptable to the point of being destructive and any healthy form of resistance and any effort towards dialogue are persecuted and brought defenceless before the military justice, a dangerous institution that should be abolished. All this happens despite the electoral announcements of the Ministry of National Defence concerning respect for the personality of the soldiers; in reality, the Ministry participates in and encourages such oppressive processes. By this means of protest, I and all young people who feel a deep sense of injustice because their life has been reduced to tatters, FIGHT:
To stop all forms of persecution of those who have participated in processes that promote social justice, peace and the right to have an opinion on issues that concern our lives; for the Ministry to have the political will to control in a meaningful manner the military power and to prosecute those who are really responsible for this authoritarianism, instead of systematically covering for them; for the State to establish once and for all respect for the initiatives and social choices of young people, by eliminating all penalties for the promotion of such ideals. It should not content itself with “socialist vocabulary” and then follow the practice of extermination; to declare that the elimination of these authoritarian institutions is a matter of a multi-faceted and long struggle at a personal, political and social level; to put an end to discrimination, favouritism and dependency, all of these being methods used by corrupt organs.
Thus, having gone through this experience, I have developed a free conscience which prevents me from taking part in and being an accomplice to this criminal process, both in its operation and in its structure, and refuse from now on to wear my uniform in these conditions. If I were to wear it, I feel that I would find myself in a crisis of conscience, contrary to my nature and beliefs as a man brought up with liberal ideas. We, the young generation, will resist any attempt to be burdened with weaknesses and become vehicles of the military establishment. This is why my stance cannot be lawfully considered to be desertion or insubordination, since it stems from fundamental human rights and is in conformity with the provisions of the Greek Constitution. I consider that I remain a citizen and a free man who sought to remain true to his conscience and the free will flowing from it. I also consider that my stance and the voicing of my protest against this humiliation are the most genuine expression of solidarity with and support for conscientious objectors because I firmly believe that this is how the struggle for social liberation and peace is carried on.”
15. A fellow reserve officer testified before the Ioannina Permanent Army Tribunal (see paragraph 18 below) that the applicant gave him a copy of the letter on 10 May 1989. It has not been alleged that any further copies were circulated.
16. Taking the view that the content of the letter constituted an insult to the armed forces, the commanding officer instituted further criminal proceedings against the applicant under Article 74 of the Military Criminal Code (see paragraph 26 below).
17. On 12 May 1989 the applicant appeared before the investigating officer, a member of the army judicial corps, who remanded him in custody on a charge of desertion.
18. The applicant was tried on 27 June 1989 by the Permanent Army Tribunal of Ioannina on charges of desertion and insulting the army.
At the outset of the trial the defence challenged the constitutionality of the second charge on the ground that the relevant criminal provision was not lex certa and that the expression of criticism could not amount to an insult. That preliminary objection was dismissed.
19. At the close of the hearing the president of the court formulated a series of questions which the members of the court had to address before deciding on the applicant’s guilt. The questions relating to the insult charge were the following:
“(a) Did the accused commit the offence of insulting the Greek army when, on 10 May 1989, while a reserve officer on probation, he sent a two-page typed personal statement to the commanding officer of the X unit, which came to the latter’s knowledge on the same day and which contained, inter alia, the following expressions contemptuous of, and disparaging, the authority of the army: ‘... [T]he army is an apparatus opposed to man and society ... [t]he army remains a criminal and terrorist apparatus which, by creating an atmosphere of intimidation and reducing to tatters the spiritual welfare of the radical youth, clearly aims at transforming people to mere parts of an apparatus of domination which ruins human nature and transforms human relations from relations of friendship and love to relations of dependence, through a hierarchy of fear guided by an illiberal and oppressive set of Standing Orders (No. 20-1), records of political beliefs, etc. ...’. In so doing, did he wilfully insult the Greek army as a constitutionally entrenched institution of the Nation?
(b) ... [did the applicant act] in the mistaken but bona fide belief that he was engaging in permissible criticism, in accordance with Article 14 of the Constitution currently in force?”
20. In a judgment delivered the same day the court, by a unanimous vote, answered the first question in the affirmative and the second in the negative. The applicant was found guilty of desertion and insulting the army. Taking into account the fact that the applicant was a first-offender, the court sentenced him to imprisonment for one year and eight months for the first offence and three months for the second offence, and ordered him to serve a global sentence of one year and ten months.
21. The applicant lodged an appeal with the Military Appeal Court which was heard on 5 September 1989. In a judgment delivered the same day the court quashed the applicant’s conviction for desertion. However, it upheld, by three votes to two, his conviction for insulting the army after dismissing his objection that the relevant provision was contrary to the Constitution and, taking into account that the applicant had no previous convictions, sentenced him to three months’ imprisonment. The applicant was immediately released, the time he had spent in detention on remand being credited against his sentence.
22. On 20 September 1989 the applicant lodged an appeal on points of law to the Court of Cassation (Arios Pagos), on the ground that Article 74 of the Military Criminal Code had not been correctly construed and applied. He argued, inter alia, that general criticism of the armed forces could not be considered an insult. He claimed in addition that the provision in question violated the Constitution because of its vagueness and could not be considered lex certa, and also that it imposed unwarranted limitations on the right to freedom of expression.
23. The applicant’s appeal on points of law was heard by a Chamber of the Court of Cassation on 12 March 1991. On 26 June 1991 the Chamber of the Court of Cassation decided to submit the case to the plenary court, having considered, by three votes to two, that Article 74 of the Military Criminal Code did not violate the Constitution and that it had been correctly applied in the applicant’s case.
24. In a judgment delivered on 22 September 1993 the plenary Court of Cassation considered that Article 74 of the Code sufficiently circumscribed the elements of the offence, namely the insult and the intention of the culprit. Elaborating on this point, the court held that
“[t]he concept of ‘insult’ includes every show of contempt damaging the esteem, and respect for, and the reputation of, the protected value. To qualify as an insult, such expression must convey contempt, taunt and denigration; it is not sufficient merely to call into question the protected value. This value is the armed forces and, more particularly, not the army or air force and the navy individually, but the armed forces in their entirety as an idea and an institution entrusted with defending the freedom and independence of the country and the necessary training of Greeks who are able to bear arms. Article 74 of the Military Criminal Code does not specify the nature of the insult nor the manner and means by which the insult is made, as it was not the intention of the legislature to make insulting behaviour of a particular kind, or committed in a particular manner, or by a particular means, a criminal offence. Any insult of the army by a member of the armed forces constitutes a criminal offence. This does not create any uncertainty as to the elements of the offence. Any further specification would have limited the scope of the criminal prohibition, which the legislature did not intend. Article 14 of the Constitution, which protects freedom of opinion, does not in any way preclude the legislature from making every instance of insulting the army by a member of the armed forces a criminal offence. The protection of Article 14 is subject to limitations provided for by law ...”
For these reasons, the plenary Court of Cassation upheld the applicant’s conviction.
25. Article 14 § 1 of the Greek Constitution provides:
“Every person may express and propagate his thoughts orally, in writing and through the press in compliance with the laws of the State.”
26. Article 74 of the Military Criminal Code provides:
“Insults to the flag or the armed forces
A member of the armed forces who insults the flag, the armed forces or an emblem of their command shall be punished by a term of imprisonment of at least six months. If he is an officer, he shall also be stripped of his rank.”
27. A corresponding civilian offence is defined by Article 181 of the Criminal Code, which provides as follows:
“Insults to authorities and to symbols
1. Any person shall be punished with imprisonment for up to two years who:
a) publicly insults the Prime Minister of the country, the Government, Parliament, the Speaker of Parliament, the leaders of the political parties recognised by the Rules of Parliament and the judicial authorities;
b) insults or, as a display of hatred or contempt, damages or disfigures an emblem or symbol of State sovereignty or the President of the Republic.
2. Criticism in itself shall not constitute an insult of an authority.”
28. A new Military Criminal Code entered into force in 1995. Article 58 of that Code provides:
“A member of the armed forces who, by speech, actions or any other means whatsoever, publicly expresses contempt for the flag, the armed forces or a symbol of their authority, shall be punished by a term of imprisonment of at least three months.”
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 7


ITEMID: 001-93012
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GURGUROV v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 13 - Right to an effective remedy
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1978 and lives in Chişinău.
6. The applicant was arrested and placed in detention on 25 October 2005 on suspicion of having stolen some mobile telephones.
7. According to the applicant, immediately after his arrest the police started to ill-treat him almost every day during lunch breaks and in the evenings in order to try to force him to confess to numerous other offences which he had not committed. Although he was being detained on suspicion of stealing mobile telephones, he was interrogated by police officers from the homicide squad who tried to make him admit to having committed a murder. Since he refused to make any confession and denied the accusations, he was taken on 31 October 2005 to an office in the General Police Headquarters, where five police officers tortured him for several hours. His hands and legs were tied together behind his back and he was suspended on a metal bar. The police officers put a gas mask on his head and periodically closed the air tube. Two wires were placed under the gas mask and attached to his ears and he was given electric shocks. He was beaten on his head with two-litre plastic bottles filled with water and was hit on his ears. Periodically, the applicant lost consciousness. After reviving him the police officers continued the acts of torture. They attached wires to his hips and administered electric shocks to him and beat him. He was later taken off the metal bar and laid on the floor. A weight of thirty-two kilograms was placed on his back and he was left lying on the ground for approximately ten minutes. The applicant’s hands and feet were subsequently untied; he felt severe pain in the region of his lower back and was unable to move his feet. He was made to sit on a chair; however, he fell down. He was put back on the chair by two police officers, who kept telling him something, but he could not hear them. He was then taken to his cell. His cellmates put him on a bed, where he was left lying for two days. The allegations of beatings are disputed by the Government.
8. Since the applicant could not stand up, he was visited by two doctors on 3 November 2005. They were accompanied by one of the police officers who had allegedly tortured him. The police officer told the doctors that the applicant had fallen from his bed. The doctors diagnosed the applicant with hysteria and recommended that he be seen by a neurologist. The applicant was then taken to another room, where he was allegedly told by a police officer not to tell anybody about the acts of torture. He was allegedly threatened with death or imprisonment for twenty-five years. A police officer wrote a report on behalf of the applicant stating that nobody had beaten him up and that he had fallen from his bed and had caught a cold; he allegedly forced the applicant to sign the report.
9. On 4 November 2005 the applicant’s father employed a lawyer, who immediately lodged a complaint with the prosecutor’s office alleging illtreatment.
10. On an unspecified date the applicant was allegedly taken again to an office at the police station. Since he could not walk, he was lifted by two police officers. The police officers who had tortured him were in the office along with three other police officers. He was made to sit on a chair and was kicked and punched. The police officers allegedly requested that he withdraw the complaint about ill-treatment, and threatened him with death.
11. The ill-treatment was allegedly repeated on several occasions. According to the applicant, he was beaten with bottles filled with water, punched, kicked and told to confess and to withdraw the complaint about ill-treatment.
12. On 11 November 2005 the applicant was examined by a forensic doctor who later wrote the following in his report (no. 5908): “Current situation: bruise on the left arm, lateral, middle third, oval shape, yellow/brown colour, size 6 x 9 cm. In the region of both knees and below the right patella, numerous abrasions covered by dark brown scabs, partly detached from the skin at their edges, ranging in size from 0.6 x 0.5 cm to 3.5 x 2.5 cm in one place ... Conclusions: the neurologist’s findings have not reached us as at 24 November 2005, nor have the X-rays of the lumbar section of the spinal column, to which examination certificate no. 92894 refers .... It is therefore impossible to determine the reasons why the victim is unable to move unassisted. The abrasions visible in the patellar region of the knee joints and the bruises visible on the left arm could have been caused by a blunt instrument and are not less than six or seven days old at the time of examination .... It is impossible to establish with greater accuracy from how long ago the bruises and abrasions date because of the delay in presentation for medical examination. Hospitalisation of the victim in a specialised medical establishment would enable a more accurate diagnosis to be made and the consequences for his state of health to be assessed.”
13. On 18 November 2005, following complaints by the applicant’s lawyer, Amnesty International organised action in support of the applicant by publishing on their Internet site a description of the applicant’s case and an appeal to people from all over the world to write to the Prosecutor General of Moldova, the Moldovan Ministry of Internal Affairs and the Moldovan Embassy in their country asking them to take action such as conducting a medical examination of the applicant, carrying out an effective investigation into his complaints of torture and allowing the applicant to meet his lawyer in conditions of confidentiality.
14. On 23 November 2005 the United Nations High Commissioner for Human Rights wrote to the Moldovan Minister of Foreign Affairs expressing concern about the situation of S. Gurgurov and about the refusal of the authorities to transfer him to a hospital as recommended by doctors. He requested information.
15. On an unspecified date between 21 and 25 November 2005 the applicant was visited by a delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which described his case in its report (see paragraph 54 below). It appears that in their reply to the CPT’s report the Government did not comment on the latter’s findings.
16. On 1 December 2005 the Moldovan Ombudsman wrote to the Prosecutor General informing him about the allegations of torture against the applicant and the fact that no medical assistance had been provided to him by that date. On 11 January 2006 the Prosecutor General’s Office informed the Ombudsman that the applicant’s complaint appeared to be illfounded.
17. On 1 December 2005 during questioning by a prosecutor one of the applicant’s cellmates stated that the applicant could not walk and that he had to be helped by his cellmates to go to the toilet. All the prison guards stated that the applicant could walk perfectly well and that they had not noted any signs of beatings on him. Only one guard stated that the applicant was limping. Two of the applicant’s cellmates stated that he was faking his condition. Another stated that the applicant could not stand or even sit and that he had to be helped by his cellmates to go to the toilet.
18. On 9 December 2005 the Chişinău Court of Appeal ordered the applicant’s release from detention.
19. On 10 December 2005 the applicant was hospitalised and underwent the following medical examinations: radiography of the head and back, echoencephalography, electroencephalography, computerised tomography, ultrasound of the internal organs and functional computerised investigation. The diagnosis following the investigations was the following: consolidated fracture of the cranial bones (skull broken, without pieces relocated); a 6 x 16 mm focal cerebral contusion in the left temporal cortical area and dilatation of the ventricular system (a contusion with augmented volume of the brain ventricular system); a post-craniocerebral trauma state; cerebral contusion of the left hemisphere (temporal area); medullar contusion L1-L2 with flask tetraparesis, especially on the inferior limbs (trauma of the back, 1st and 2nd lumbar spines, damaging the spinal cord and causing partial paralysis, especially of the legs).
20. On 20 December 2005 the prosecutor in charge of the case ordered examination of the applicant by a panel of forensic doctors and directed the panel to give answers to the following questions:
“1. Did Mr Gurgurov suffer from diseases of the nervous system before his arrest?
2. Is it possible that the diseases from which he suffered before his arrest were aggravated during detention?
3. Did Mr Gurgurov have any injuries at the moment of his arrest which could have led to the worsening of his present state of health?
4. Is it possible that the applicant’s problems with his central nervous system and his capacity to move were caused by the administering of electric shocks? If so, what are the after-effects of electric shocks and how long do they last?”
21. On 16 January 2006 a panel of three forensic doctors examined the applicant’s medical documents and gave the following answers:
“1 and 2. The applicant’s medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest.
3. At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which are considered to be light injuries...
4. During further medical investigations of the applicant he was found to be suffering from paralysis of the feet and left arm. The paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable.”
The forensic panel added that in reaching its conclusions it had not paid attention to the earlier findings concerning the fracture of the cranial bones and the cerebral contusion (see paragraph 19 above) because it had not been presented with the original radiographic images. The panel also added that it could not be ruled out that the applicant was simulating his condition, and that only a psychiatric investigation could exclude that possibility.
22. On 18 January 2006 the prosecutor’s office dismissed the applicant’s complaint concerning his allegations of ill-treatment. It relied on the statements of one of his cellmates who had contended that the applicant was faking his condition, the statements of police officers who denied having illtreated the applicant, the medical report of 11 November 2005 and the conclusion of the medical report of 16 January 2006 to the effect that: “the paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable...”
23. Starting on 15 February 2006 the applicant underwent a medical check-up at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have been subjected there to detailed medical tests and examinations by various medical specialists. In a document entitled “Extract from the medical records”, dated 26 February 2006, issued by the Centre, it was stated, inter alia, that the applicant was suffering the after-effects of cranial trauma (cerebral contusion of the left hemisphere predominant in the temporal area), organic cerebral post-traumatic syndrome, post-traumatic bilateral adhesive otitis, post-traumatic cochlear neuritis, bilateral neuro-sensorial deafness, and medullar lumbar contusion L1-L2 with flask tetraparesis of the inferior limbs. A number of psychological conditions characteristic of victims of torture were also found. The Centre also decided to help the applicant to fund surgery in order to “regain his hearing at least partially”.
24. On 26 June 2006 the Prosecutor General of the Republic of Moldova, Valeriu Balaban, wrote a letter to the Moldovan Bar Association in which he stated, inter alia, the following:
“Lately, the Prosecutor General’s Office has been confronted with the phenomenon whereby some Moldovan lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases. These organisations are used as an instrument for serving personal interests and for enabling suspected persons to avoid criminal responsibility.
Examples of such incidents are the case of Gurgurov, triggered by the lawyer Ana Ursachi, and the case of Colibaba, triggered by the lawyer Roman Zadoinov. The international media coverage of these cases prompted action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers’ clients.
After having examined with sufficient thoroughness the complaints alleging torture and abuse on the part of the police ... the prosecutor’s office dismissed the complaints on the ground of lack of proof that offences had been committed. ...
... In such circumstances the irresponsible attitude and behaviour of the lawyers Ana Ursachi and Roman Zadoinov give rise to concern. They knew that no acts of torture had been committed against their clients. However, they complained to international organisations without first attempting to use the national mechanism for solving such problems. They presented the facts erroneously in order to win their cases...
Such practices by lawyers will be investigated by the Prosecutor General’s Office in order to determine whether they have committed the offence provided for in Article 335 § 2 of the Criminal Code, by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country.
Accordingly, the Bar Association is called upon to take account of the facts described above, to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of the Republic of Moldova.”
The above letter generated a heated debate in the media. On 30 June 2006 the Moldovan Bar Association issued an official statement in which it qualified the Prosecutor General’s letter as an attempt to intimidate lawyers. In an interview to the newspaper Ziarul de Garda the President of the Bar Association declared, inter alia, that it was an attempt to intimidate lawyers so that they would no longer complain to the Court.
25. It appears that the prosecutor’s office did not inform the applicant about its decision of 18 January 2006 until late June 2006. On 17 July 2006 the applicant’s lawyer appealed against the decision of 18 January 2006 and argued, inter alia, that the prosecutor’s office had not examined the complaint properly. He argued that the prosecutor’s office had not paid attention to the fact that on 25 October 2005, on the day of his arrest, the applicant had been in good health. The prosecutor’s office had also failed to question persons who had seen the applicant on 3 November 2005, when he was brought before a court, including the judge, prosecutor and persons present in the court. The prosecutor had not questioned the doctors who had examined the applicant, or asked the applicant to identify the persons who had allegedly tortured him and the offices where the alleged torture had taken place. The prosecutor had failed to investigate why police officers from the homicide division were questioning the applicant, who had been charged with stealing mobile telephones.
26. On 13 February 2007 the appeal was dismissed by the Riscani District Court on the ground that the applicant’s lawyer had failed to observe the ten-day time-limit for challenging the prosecutor’s decision. The applicant lodged an appeal on points of law which was upheld by the Supreme Court of Justice on 3 July 2007.
27. In the meantime, in June 2007, the applicant was officially recognised as having a second-degree disability. In the medical documents issued by the Ministry of Social Welfare and Family Matters it was recommended that he should not work. The reasons given for declaring him disabled were “the after-effects of severe head trauma dating from October 2005, injury to the spine and post-traumatic deafness in both ears”.
28. It appears that on an unspecified date in August or September 2007 the applicant broke his hip as a result of falling down in the stairwell, and spent two months in hospital.
29. On 15 October 2007 the Chişinău prosecutor’s office again dismissed the applicant’s complaint about his alleged ill-treatment. The prosecutor based his decision on essentially the same reasons as the decision of 18 January 2006. The applicant’s lawyer appealed against this decision.
30. On 1 November 2007 a higher-ranking prosecutor quashed the decision of 15 October 2007 and ordered the re-examination of the case. He instructed the lower-ranking prosecutor to examine the medical documents, to find out whether the applicant had been suffering before his arrest from any conditions which had been discovered after he was taken into detention and to question the doctors who had examined him.
31. On 11 December 2007 a prosecutor requested the Ministry of Health to establish a medical panel to verify the applicant’s condition in view of the contradictions in the existing medical reports, namely the report of 16 January 2006 and the decision recognising him as having a seconddegree disability.
32. On 9 January 2008 a junior health minister wrote to the prosecutor’s office informing it that a panel had been set up which had intended to conduct a medical examination of the applicant on 27 December 2007. However, the applicant had failed to appear before the panel.
33. On 12 March 2008 the same junior minister wrote to the prosecutor’s office informing it that the applicant had not shown up for a medical examination scheduled for the same date.
34. In a letter of 14 April 2008 addressed to the junior health minister, the chief neurologist wrote that the applicant had been seen by him at the beginning of April and that the applicant was in a wheelchair and had undergone hip-replacement surgery. The applicant had a severe weakness in his limbs on the right side. The doctor concluded that the applicant was suffering from severe movement dysfunction on the right side and a less severe dysfunction of the movement of the left foot. According to the doctor it was very difficult to tell the cause of the applicant’s condition, which could either be the result of a trauma or have been simulated.
35. On 6 May 2008 the prosecutor’s office reiterated its request to the Ministry of Health for a repeat medical examination of the applicant by a panel of doctors. The prosecutor’s office requested that the medical panel answer the following questions:
“1. Did Mr Gurgurov suffer from any diseases of the central nervous system before [his arrest on 25 October 2005]?
2. Is it possible that the diseases from which he suffered before his arrest were aggravated during detention?
3. Did Mr Gurgurov have any injuries at the time of his arrest which could have led to the worsening of his present state of health?
4. Is it possible that Mr Gurgurov’s health problems were caused by self-mutilation?
5. Does Mr Gurgurov have traces of a head trauma and a spinal trauma and how are they manifested?
6. Is Mr Gurgurov suffering from the after-effects of electric shocks?
7. What are the reasons for recognising him as suffering from a second-degree disability and what are the rules according to which this status was granted to him?
8. How old are the applicant’s injuries?
9. Is there a causal link between Mr Gurgurov’s state and his injury of September 2007?
10. Did the injury of September 2007 influence Mr Gurgurov’s state of health?”
36. On 15 May 2008 the applicant’s lawyer complained to the Prosecutor General’s Office that the prosecutor in charge of the case was prolonging its examination unnecessarily.
37. On 6 June 2008 a panel of three forensic doctors, two of whom were members of the panel which issued the report of 16 January 2006, examined the applicant’s medical history and gave the following answers:
“1 and 2. The applicant’s medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest.
3. At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which could not have any influence on the state of his health.
4. The applicant’s injuries are not characteristic of self-mutilation; however, it cannot be ruled out that they were inflicted by himself.
5. No clear clinical symptoms of head or spinal trauma can be found on Mr Gurgurov.
6. The panel does not have in its possession any information which would allow it to conclude that the applicant was subjected to electric shocks.
7. Normally, invalidity is granted after the examination of the individual’s medical history and medical examination by specialised doctors...
8. The age of the applicant’s injuries was correctly established in the medical report of 11 November 2005. His neurological problems were established in the report of 16 January 2006. It is impossible to establish more precisely their age.
9 and 10. There is no causal link between the injuries and his current state. His injury of September 2007 is not at the origin of his severe movement dysfunction.”
38. On 11 June 2008 the prosecutor’s office issued a decision dismissing again the applicant’s criminal complaint about his alleged ill-treatment. The decision relied, inter alia, on the medical report of 6 June 2008. The applicant challenged the decision before an investigating judge. However, the appeal was dismissed and the applicant was directed to lodge his appeal with the higher-ranking prosecutor, which he did.
39. On 13 February 2009 the Prosecutor General’s Office dismissed the applicant’s appeal against the prosecutor office’s decision of 11 June 2008. It concluded that the applicant was simulating his condition. In reaching this conclusion it relied on testimonies from several of the applicant’s former cellmates and on the medical report of 6 June 2008.
40. The relevant provisions of the Criminal Code read as follows:
(1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by imprisonment of up to three years...
(2) The same act accompanied by:
(a) violence;
(b) cruel, inhuman or degrading treatment;
...
Shall be punishable by imprisonment of three to eight years...
(1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or testimonies ... shall be punishable by imprisonment of two to five years. ...
(3) The actions referred to in paragraph 1 ..., carried out:
(c) by two or more persons;
(e) with the use of special instruments of torture or other objects adapted for that purpose;
(f) by an official,
shall be punishable by imprisonment of five to ten years...
41. The relevant findings of the CPT during its visit to Moldova between 21 and 25 November 2005 read as follows (unofficial translation):
“46. At the remand centre (EDP) of the Department for the fight against organised crime, one detainee interviewed by the delegation alleged that, on the evening of 25 October 2005, at the Riscani district police station, he had been punched and kicked in a third-floor office, in order to make him confess to various offences. On the next day, he had been transferred to the Municipal Police Headquarters EDP, from where he had, during the period for which he was held (until 2 November according to the relevant registers), been transferred on several occasions, sometimes to the Riscani police station and sometimes to the Municipal Police Headquarters (transfers confirmed by the examination of the relevant registers). He alleged that he had been ill-treated on these premises. In particular, he alleged that, on 31 October, in a second-floor office at the Municipal Police Headquarters, he was subjected to several forms of ill-treatment: an attempt to suffocate him by placing a gas mask over his face; suspension in what is known as the swallow position; slaps on his ears; electric shocks administered via electrodes placed behind his ears and on his hips; placement of a heavy dumbbell weight on his back. As a consequence of the ill-treatment inflicted, he had briefly lost consciousness, and, furthermore, had been unable to move for the next four days.
Furthermore, according to the detainee concerned, he had not been given a form informing him about his rights until the end of the morning of 26 October, which was when he said that he had met an officially assigned defence counsel. The first judge before whom he had been brought on the third day of his deprivation of liberty was said not to have reacted to his allegations of ill-treatment.
On 3 November he had been brought before a judge who had served a compulsory residence order on him. In spite of this decision, he had been transferred to the EDP of the Department for the fight against organised crime on that same day, on the basis of an arrest warrant issued in 2001, after undergoing a medical examination at a hospital casualty unit. He said that he had also been beaten during this new detention in an office of this Department, and had been threatened to make him stop lodging complaints.
47. The medical screening carried out on his admission to the EDP at the municipal police headquarters referred only to an injury sustained prior to his arrest. A medical examination of this detainee carried out in hospital by a neurologist on 3 November recorded signs of traumatism in the region of his left arm and both knees, and put forward the diagnosis of hysteria, with a recommendation that further paraclinical examinations be carried out.
On 4 November 2005, his lawyer had asked the Prosecutor General for a forensic medical examination. However, the examination took place late, i.e. on 11 November 2005 [forensic report No. 5908, see paragraph 12 above] and it is stressed that, due to this fact, it is impossible to establish precisely how old the lesions observed were, as well as that it is necessary to hospitalise the detainee for assessment and for a precise diagnosis.
48. The examination of this detainee by the delegation’s doctors revealed two small bilateral tympanic tears consistent with his allegations of slaps on the ears, as well as atypical motor deficiency disorders, highly suggestive of a major psychological trauma.
In view of this person’s state of health, the delegation asked for action to be taken to ensure that he received the medical assistance that his condition necessitated, including psychological care. The CPT would like to receive this information within one month.
Moreover, the CPT reiterates its delegation’s request to be informed of follow-up action taken regarding this detainee’s complaint and of the results of any investigation carried out in this respect.
49. Without prejudice to the follow-up given to this detainee’s complaint and to the conclusions of the investigations carried out, the CPT wishes to emphasise that this case is indicative of unacceptable inertia on the part of the agencies concerned in the face of allegations of severe ill-treatment/torture, and of the flagrant failure by the authorities to implement the main recommendations of the Committee intended to prevent ill-treatment (set out in paragraphs 21 and 23 of its report on the 2004 visit) and in terms of providing the fundamental safeguards (set out in paragraphs 30, 32 and 34).
It is crucial for these recommendations to be implemented immediately, and there is no convincing argument which could justify any delay whatsoever in taking action. Only their implementation can give clear indication as to the willingness of the Moldovan authorities to put an end to the phenomenon of ill-treatment.
The CPT therefore calls upon the Moldovan authorities to take decisive steps, at every appropriate level, to ensure that all the recommendations relating to the prevention of ill-treatment by the police and to compliance with fundamental safeguards made by the Committee in its report on the 2004 visit are implemented without further delay...”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-22249
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: TANNER and MALMINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants Mr Jukka Malminen and Mr Jari Tanner are Finnish nationals. Mr Malminen was born in 1956 and lives in Raisio. Before the Court he is represented by Mr Heikki Salo, a lawyer practising in Helsinki. Mr Tanner was born in 1957 and lives in Tampere. Before the Court he is represented by Ms Tiina Nystèn, a lawyer practising in Helsinki.
On 27 January 1994 the public prosecutor instituted criminal proceedings against the applicants, charging them with, inter alia, incitement to aggravated embezzlement before the District Court (käräjäoikeus, tingsrätten) of Helsinki.
At the second hearing of the case, the presiding District Court judge stated that “one can see what is the issue in this case”. According to the applicants, the judge already showed his partiality and negative attitude against the applicants at that time. At a later hearing, in which Mr Malminen stated that he would prove his innocence, the judge expressed his doubts by noting that “it would be a difficult task”. Also when one of the applicants’ co-accused hid his face from photographers, the judge stated that “it has never been necessary for honest men to hide themselves in this courtroom”. According to the applicants, the presiding judge was indifferent, chatting to other judges when the applicants’ witnesses were heard and once even cut his nails at that time.
At the 18th hearing, on 26 January 1995, the prosecutor brought a further alternative charge of aggravated fraud against the applicants. They requested the court to dismiss the alternative charge without considering the merits, alleging that denying the primary charge would automatically mean admitting the alternative one. Thus the way in which the charges were framed destroyed their defence. On 17 March 1995 the District Court dismissed the request, recalling that alternative charges were not forbidden by law and finding that they did not prevent the applicants’ effective defence.
On 18 January 1996, at the 35th hearing of the case in which the parties presented their final pleadings, Mr Malminen announced that he had the same day instituted private prosecution proceedings against the presiding District Court judge for an alleged offence while in office as he had dismissed the objection to the alternative charge presented earlier: it was claimed that, therefore, the judge was biased and should step down from the bench. On 29 February 1996 the District Court dismissed the claim concerning disqualification of the judge, finding that the charges brought by the applicant did not as such constitute grounds for such disqualification. Furthermore the decision to reject the claim concerning the alternative charges did not indicate the judge’s preconceived attitude to the case as alleged by Mr Malminen. The District Court further found that the allegations concerning the judge’s behaviour during the hearings were unsubstantiated.
In the main proceedings the District Court convicted Mr Malminen of, inter alia, twelve counts of aggravated fraud and five counts of incitements to aggravated embezzlement. He was sentenced to seven years’ imprisonment and ordered to pay FIM 18,000,000 (approximately 3,000,000 Euros) in compensation. Mr Tanner was convicted of, inter alia, ten aggravated frauds and five incitements to aggravated embezzlement. He was sentenced also to seven years’ imprisonment and ordered to pay FIM 8,000,000 (approximately 1,300,000 Euros) in compensation. According to the applicants, the sentences imposed were maximum penalties for the offences in question. Mr Tanner was also taken into custody immediately after the hearing even though he had not been in detention during the trial.
The applicants both appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt) which, on 6 March 1997, upheld the District Court’s decision, finding that the alternative charges did not prevent the applicants’ defence or otherwise violate their right to a fair trial. Concerning the disqualification of the judge the Court of Appeal found that the decision to dismiss the applicants’ plea concerning the prosecutor’s alternative charges was given at the 18th hearing and Mr Malminen made his allegations more than ten months later at the 35th and last hearing. Mr Malminen, further, submitted his allegations concerning the judge’s behaviour at the last hearing even though he claimed that the judge’s impartiality had been obvious during the whole proceedings. The Court of Appeal concluded that Mr Malminen’s purpose by bringing the charge against the judge was to make the judge his adversary and to prevent the court from giving its decision. Having examined the main issue the Court of Appeal rejected some charges and reduced Mr Malminen’s sentence to six years’ imprisonment and Mr Tanner’s sentence to five years six months’ imprisonment. On 8 December 1997 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.
On 26 August 1998 the Court of Appeal dismissed, without having a hearing, the charge brought by Mr Malminen against the District Court judge, finding no evidence of the alleged offence. On 18 May 1999 the Supreme Court upheld the Court of Appeal’s decision.


ITEMID: 001-110718
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SALIKHOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1965 and lived in Novosibirsk before his arrest.
5. The following facts are based on the documents produced by the parties and on the applicant’s submissions in so far as they have not been disputed by the Government.
6. At 8 p.m. on 22 June 2004 the applicant was arrested in the Chelyabinsk Region on suspicion of rape and placed in the interview room of the Uysk police station. At 10 p.m. Mr Zh., an investigator with the Uysk district prosecutor’s office, drafted an arrest record.
7. At about midnight on that day the applicant was taken out of the room into the corridor and told to hand over his underwear for examination by an expert. He replied that he was prepared to do that on condition that another pair of underwear was provided to him by the police or by his relatives.
8. Thirty minutes later Mr M., the head of the criminal investigation department, the police officer Mr F. and other police officers entered the interview room in which the applicant was locked, and started beating him with rubber truncheons. They handcuffed him and dragged him out of the room into the corridor.
9. The applicant was brought to the office of Mr M. where the following persons were also present: the investigator Mr Zh., Mr F. and two or three other officers, a forensic police expert, and two attesting witnesses, Mr L. and Mr R., both residents of Uyskoye village.
10. The applicant was thrown on to the table face down and beaten on the back. His head struck the central unit of a computer. The officers forcibly removed his trainers, tracksuit bottoms and underwear, took the underwear away and told him to get dressed. The applicant refused to get dressed, because he was handcuffed and his tracksuit bottoms were torn.
11. The officers M. and F. returned him to the interview room and threw him on the table on his stomach. M. hit him on the back with a rubber truncheon, removed the handcuffs and then went out and locked the door.
12. F. returned half an hour later, put handcuffs on the applicant and took him again to M.’s office where other officers were also present. The applicant was only wearing a T-shirt and socks.
13. The forensic expert attempted to take a hair sample from the applicant’s groin using a comb. He was unsuccessful, and M. cut some hair with scissors.
14. The applicant was then laid on the table facing the desk and M. started clipping his fingernails. In the process the applicant’s fingers began bleeding.
15. Once these procedures had been completed, the applicant was taken back to the interview room, which contained a table and two chairs. The handcuffs were removed. He was still wearing only a T-shirt and socks.
16. The applicant remained there overnight, until noon on 23 June 2004. At noon he was transferred to a detention cell and given some clothing which his relatives had brought for him.
17. On 24 June 2004 the applicant was taken to a doctor for an examination. While there he asked the doctor to record his injuries. The doctor refused, saying he had had no instructions in that respect.
18. On the same day the applicant was brought before a judge with a view to deciding on the question of detention on remand. During those proceedings the applicant described his injuries to the judge, who remanded him in custody but did not otherwise take note of the applicant’s complaints.
19. On 25 June 2004 the applicant complained to the Uysk district prosecutor about the forceful removal of his underwear, beatings and the cutting of his fingernails. On 29 June 2004 a deputy prosecutor heard him in person.
20. On 1 July 2004 the deputy prosecutor refused to institute criminal proceedings on the basis of the statements from officers M. and F. and investigator Zh. which read as follows:
“It follows from M[.]’s statement that Salikhov refused to perform procedural acts voluntarily, struggled to break loose and accidentally struck his head against the computer. He was not intentionally beaten by anyone. After his fingernails had been removed and his groin shaven, Salikhov was told to get dressed. He refused to get dressed. He was taken by the corridor to the detention wing. He was wearing a T-shirt and socks...
F. explained that... Salikhov had refused to take part in procedural acts. He was held by the hands while his underwear was being removed. He broke loose and struck his head against the computer. He refused to get dressed...
Zh. stated that... Salikhov had struck his head against the computer when his underwear was being removed. He did not make any threats against Salikhov. He said that if Salikhov refused to hand over his underwear voluntarily, it would be taken by force because it was needed. Salikhov refused to get dressed of his own will...”
The decision did not mention the applicant’s version of the events.
21. The applicant contested the refusal in court. On 19 August 2004 the Uyskiy District Court of the Chelyabinsk Region rejected his complaint, finding as follows:
“Pursuant to Article 202 § 1 of the Code of Criminal Procedure, the investigator may obtain samples from the suspect ... It follows from the statements by Mr Zh[.], Mr F[.] and [the head of the investigators’ group] Ms Z[.] that they did not use any unlawful means on Mr Salikhov or made any treats against him...”
22. On 14 January 2005 the Chelyabinsk Regional Court summarily upheld that decision on appeal.
23. At about 9 p.m. on 24 June 2004 the applicant was taken out of the cell – where he was detained on remand – into the corridor, where the investigators Zh. and Z. and a nurse from the Uysk emergency station were present.
24. The investigators told the applicant that they wanted to take a blood sample from him. The applicant refused to give blood in the absence of counsel.
25. At 9 a.m. the following morning investigator Zh. visited the applicant in his cell. Counsel for the applicant was also present. The investigator showed him a copy of a decision that a blood sample should be taken for a comparative study, and asked the applicant to comply. The applicant refused to give blood voluntarily and counsel maintained that a sample could not be taken against his will.
26. Half an hour later escort officers K. and D. took the applicant out of the cell into an office where the investigator Zh., the nurse, and two attesting witnesses, Kh. and I., were waiting for him. The investigator requested the applicant to give blood. The applicant refused. The investigator asked the escort officers to hold the applicant still but they refused, stating that it was beyond their call of duty. The nurse declined to take blood against the applicant’s will. Thereafter, the applicant was brought back to his cell.
27. At 9 p.m. on 1 July 2004 the applicant was taken from his cell and into the corridor. The investigators Zh. and Z., the head of the police station R. and his deputy Is., officers-on-duty Ye. and A., as well as the nurse, were waiting there for him. The applicant again refused to give blood.
28. The investigator ordered him to be handcuffed and the nurse tried to take blood, but could not get near enough to the applicant. The officers then threw him on the floor, face down with his hands behind his back. Ye. sat on his neck, A. on his legs, and R. and Is. held his hands. The nurse again attempted to use a syringe but, as he kept jerking his arms, she stopped.
29. The applicant complained to the district prosecutor, the internal security department of the police and the Ombudsman of the attempted taking of a blood sample by force. He did not receive any replies.
30. On 13 October 2004 he lodged a complaint about a violation of his constitutional rights and ill-treatment with the Uyskiy District Court.
31. The District Court heard the applicant, the investigators Zh. and Z., and the officers Is., Ye. and A. and dismissed the applicant’s complaint on 28 December 2004, finding as follows:
“Salikhov claimed ... that attempts to take a blood sample by force and the use of handcuffs had amounted to torture. Article 21 of the Russian Constitution prohibits the use of torture. Article 1 of the Convention against Torture defines torture as any act by which severe pain is inflicted on a person for obtaining a confession, punishing or intimidating him. The court did not see any evidence that severe pain had been inflicted on Salikhov on 24, 25 June or 1 July 2004, this followed from the statements by the witnesses and Salikhov’s own testimony. The use of handcuffs was permitted under section 45 of the Pre-Trial Detention Act. As the witnesses stated in court, Salikhov had been handcuffed after he had started using obscene language against the nurse and police officers and jerking his hands, that is, they were used for putting an end to his unlawful conduct. Thus, the court finds no violation of Salikhov’s constitutional rights because a blood sample was not taken, because he was not subjected to torture, and because the use of handcuffs was lawful.”
32. On 5 April 2005 the Chelyabinsk Regional Court upheld that decision on appeal in a summary fashion.
33. Following his detention on remand, the applicant was placed in remand prison IZ-74/1. During the investigation of the criminal case against him, he was, on a number of occasions in the period from 22 June 2004 to 1 April 2005, detained in the detention unit of the Uysk police station, for a total duration of seventy-five days.
34. Cells were equipped with beds made of sheet metal. No mattresses, blankets, pillows or bed linen were provided. There were no toilets inside the cells; detainees were given buckets without covers or handles. Access to daylight and fresh air was limited. There was no opportunity for outdoor exercise; the only light bulb was dim. No breakfast or dinner was served and the midday meal was limited to a slice of bread and a bowl of soup.
35. The applicant complained to the prosecutor’s office about the conditions of his detention at the Uysk police station, lack of sleep and malnutrition. In addition, he repeated his complaint before the Uysk District Court at the hearing on 9 August 2004.
36. On 18 August 2004 the Uysk prosecutor replied to the applicant that there had been numerous (unspecified) breaches of the legal requirements relating to the conditions of detention. By letter of 18 October 2004, the prosecutor additionally informed him that on 23 August 2004 he had instructed the head of the Uysk police station to remedy those breaches and to take disciplinary action against those responsible.
37. By a letter dated 19 November 2004, the regional police headquarters informed the applicant that mattresses and bed linen had been purchased and distributed to all inmates. They also stated that buckets with covers and handles were available in all cells and that one hour of outdoor exercise was possible on a daily basis. Food was purchased from the local consumers’ union for a total amount of twenty-four Russian roubles (less than one euro) per person per day.
38. On 20 September 2005 the deputy Uysk prosecutor issued a formal requirement to the head of the Chelyabinsk Region police and the chief officer of Uysk police station to remedy the violations of the laws relating to pre-trial detention of suspects and defendants. The prosecutor deputy noted that, in breach of the relevant laws and regulations, the detainees at the Uysk police station were not provided with bedding, that the cells were not equipped with toilets or water taps, that cell no. 2 was overcrowded, that there was no opportunity for outdoor exercise, and that food was distributed only once a day on weekdays and not provided at all at weekends.
39. On 12 October 2005 the head of the Chelyabinsk Region police reported to the Uysk district prosecutor that his requirement had been examined and that the conditions of detention in the Uysk police station had indeed fallen short of the statutory requirements. The deficiencies were largely due to insufficient funding from the federal budget. However, a renovation of the Uysk police station at the expense of the regional budget was planned for 2006.
40. On 26 October 2005 the chief officer of Uysk police station also acknowledged, in his report to the Uysk district prosecutor, that the conditions at the Uysk police station were unsatisfactory but renovation would be carried out in 2006.
41. As indicated above, the applicant spent a total of seventy-five days of his detention on remand in cells of the Uysk police station. One of those occasions was on 21 October 2004 when the applicant was brought to Uysk police station from the remand prison at about 4 p.m. The applicant was locked in cell no. 1.
42. Soon afterwards police officer Mr P. told the applicant to leave the cell and follow him. The applicant refused to leave the cell without the investigator and counsel being present.
43. The chief officer of the police station, Mr R., accompanied by officers Mr Pr., Mr Ye. and Mr V., entered the cell and ordered his subordinates to “wrap him up” and take him to the hospital for a medical check-up. The officers started dragging the applicant off the bed by the feet, hitting and punching him. Someone banged his head against the bed. He was handcuffed and taken out into the corridor. The applicant was shouting and swearing at the policemen.
44. The applicant wore socks but no shoes. He was dragged into the courtyard, pulled through the slush and puddles and placed into a prison van.
45. The applicant was brought to the hospital where a nurse put some questions to him. The applicant spotted investigator Zh. nearby and requested him to secure the presence of his counsel.
46. The applicant was then taken to the court-house. Counsel M. met him there and told him that a hearing concerning an extension of his detention period would now take place. The applicant replied that he would come to the hearing as he was: barefoot, wet and dirty, with blood from wounds on his forehead and face.
47. The escorting officers took the applicant into the hearing room. The applicant told the judge that he was ready to take part in the hearing, but drew the judge’s attention to his lamentable appearance. The judge replied that “nothing dramatic had happened” and opened the hearing. At the close of the hearing the judge approved an extension of the authorised period of detention for a further three months.
48. The applicant appealed, complaining in addition about the circumstances in which he had been brought to the hearing. On 12 November 2004 the Chelyabinsk Regional Court rejected his appeal against the extension order but did not address the other complaints made.
49. Furthermore, on 25 October 2004 the applicant complained to the District Court that the hearing record made no mention of his complaint about the conditions in which he had been transported to the courthouse. On 3 November 2004 a judge of the District Court rejected his application for the correction of the hearing record, noting that “all statements, questions and answers had been recorded exactly as they had been made by the participants to the hearing”.
50. On 27 October 2004 the applicant complained to the Uysk prosecutor that the escorting officers had acted unlawfully.
51. On 19 November 2004 the deputy prosecutor of the Uysk district refused to institute criminal proceedings, finding as follows:
“On 21 October 2004 Salikhov was escorted from remand prison no. IZ-74/1 to the Uysk police station for an extension of his authorised detention period. According to the applicable requirements of criminal law, a medical specialist must examine the detainee and determine whether he is fit to remain in custody. Salikhov was invited to follow the escorting officers. He refused and insisted on seeing his counsel and the head of the police station.
Medical examination is not a procedural act, it does not require a separate decision by the investigator. It follows that there was no breach of the criminal procedure in respect of Salikhov.
The actions of the escorting officers in respect of Salikhov were lawful because he refused to go out of the cell, behaved aggressively and used obscene language against the policemen. By decision of 10 November 2004, a criminal case was instituted against Salikhov for insulting public officials.”
52. According to the applicant, he challenged the deputy prosecutor’s decision before the Uysk District Court but he was not informed about the outcome of the proceedings. According to the Government, first the Uysk District Court on 28 December 2004 and then the Chelyabinsk Regional Court on 5 April 2005 had examined the deputy prosecutor’s decision and upheld it as lawful and justified. However, the copies of the judicial decisions of those dates produced by the Government concerned the applicant’s appeal against the deputy prosecutor’s decision of 13 October 2004 (see paragraphs 30 and 31 above) and no other decisions issued on the same dates were submitted.
53. The applicant stood trial before the Uysk District Court of the Chelyabinsk Region. The victim, Ms K., and the witnesses Ms V. and Ms Kar. did not appear at the hearings and the prosecution requested that their pre-trial statements be read out. The court granted the request, overriding the applicant’s objections, referring to reports by the police officers to the effect that they had moved home and their current whereabouts were not known.
54. The applicant’s line of defence was that of consensual intercourse. He did not deny having had sex with Ms K., but maintained that all contacts had been voluntary. In his submission, it was of fundamental importance to have Ms K. examined in open court.
55. The trial court examined in particular the following evidence:
– the pre-trial statement by the victim K. She stated that on 20 June 2004 she had agreed to meet with her friend Mr V. While waiting for him, she was drinking coffee and chatting with her friends, Ms V. and Ms Kar. Mr V. came at about 11 p.m. and brought along two friends, the applicant and his co-defendant. The two girls were gone twenty minutes later. At about 2 a.m. she fell asleep. In the morning she asked the applicant and his co-defendant to leave, but they refused. Instead, they beat her with a plastic bottle on the head, undressed her by force and repeatedly raped her. After they left, she fell asleep and only woke up at about 8 p.m. on 21 June 2004.
– the pre-trial statements by the witnesses Ms V. and Ms Kar. They stated that they had been visiting Ms K. at her home on the night of the events and had seen a very drunk Mr V. come in late with two friends. After a while they left and on the following day Ms K. told them that she had been raped.
– the testimony from Ms M., Ms K.’s grandmother. She testified that at the material time K. had rented a flat elsewhere and moved out. On 22 June 2004 K. came in late at night, she was pale and shaking, but M. abstained from putting any questions to her. Only a few days later K. said that she had been raped, without giving any details.
– the testimony from Mr V. He testified that he used to date K. On 20 June 2004 he got the news that the applicant and his co-defendant had been released from prison and they decided to celebrate. They came to the flat and got drunk with the girls. He spent the night on the sofa together with K. and then got up very early and left for work.
– the testimony from the forensic expert Z. She testified that the applicant’s and his co-defendant’s underwear bore traces of epithelium cells that could belong to a woman with Type A blood. No blood or skin cells were found in their nail clippings.
– the testimony from the forensic expert S. She stated that she had examined the victim K. on 23 June 2004 and found superficial abrasions and bruises. The injuries had been inflicted one or two days before the examination and they could have resulted from rape or other impact. No damage to the genital or anal area was detected.
– the testimony from the police officer B. who worked in the missing persons unit of the Uysk district police. He stated that Ms K. had been on the list of missing persons since 28 February 2005 and that there were grounds to believe that she had been a victim of loan sharks to whom she had not repaid the debt. His report to the effect that he had gone to Chelyabinsk to search for K. was untruthful, as he had never gone to Chelyabinsk and as he had drafted the report “just like that, with no real information” because the investigator Za. had asked him to do so. He had been unable to locate Ms Kar. because she had moved out of the Uyskoy village; he had once seen Ms V. but he did not know where she lived.
– the forensic biology reports prepared by the experts Z. and S.
56. On 31 March 2005 the District Court found the applicant and one co-defendant guilty as charged, finding as follows:
“The materials of the pre-trial investigation and judicial inquiry support the finding that the defendant Salikhov is guilty of the offences of [aggravated rape and non-consensual sexual intercourse]. The defendant did not deny that he had engaged in sexual intercourse with K. on 21 June [2004] in the day-time at the following address ... The findings of a forensic biology report ... corroborated the fact of sexual intercourse by Salikhov and K. The following evidence confirms the non-consensual and violent nature of the intercourse between Salikhov and K.: the statements by the victim K. made during the pre-trial investigation and read out in court; the statements by the witnesses Ms V. and Ms Kar. made during the pre-trial investigation and read out in court; the testimony by the witness Ms M. and the witness Mr V. which were logical and consistent and which the court finds no reason to doubt. An indirect indication of the non-consensual and violent nature of the intercourse follows from the testimony of Mr B. in the part in which he stated: ‘K. said: Maybe you’ve had enough sex for today? Salikhov replied: [K.] is a smart girl, she’s got it right, - and took her to the bedroom.’ which implies the non-consensual nature of the intercourse between Salikhov and K. Furthermore, the injuries found on K.’s body – bruises on the outer surface of the hips, neck, shoulders and abrasions on the forearms – also confirm that Salikhov had had a sexual intercourse with her and forced her to perform oral sex on him; the expert S. stated before court that the timing of injuries did not contradict the information on Salikhov’s criminal acts [sic] and that such injuries might be the product of a non-consensual sexual intercourse... The fact that the forensic study did not uncover any injuries to K.’s genital or anal area does not exclude the possibility that sexual acts had been performed on K.’s against her will; the expert S. explained to the court that a forcible intercourse is possible without injuring the genitals or the anal opening and that she could not categorically exclude that there might be some indications of violent sexual intercourse. The scene of the offence (a fourth-floor flat), the identity of the participants (two men, both recently released from penitentiary facilities, one of them infected with tuberculosis, and a young woman), the number and frequency of sexual intercourse and violent acts demonstrate that the intercourse was carried out against the victim’s will.”
57. In addition, the District Court found the applicant guilty of insulting six police officers on 21 October 2004 (see paragraphs 41-47 above). The finding of his guilt was founded on the statements by the police officers. The court held that the application of handcuffs had been lawful because the applicant had refused to leave the cell.
58. The applicant was sentenced to three years and six months’ imprisonment in a high-security colony.
59. On the same day the District Court issued two separate decisions “concerning breaches of law committed during the pre-trial investigation”. The first decision related to a belated notification of the decision to prepare the forensic biology report: the report was requested on 25 June 2004 but the applicant was only informed of it on 29 June 2004. The second decision concerned the report by the police officer B., which stated that, further to a prosecutor’s request, on 15 November 2004 he had visited the registered residence of the victim K. in Chelyabinsk and talked to the neighbours, but no one had seen her or knew her. According to the officer’s testimony in court, he had never gone to Chelyabinsk or talked to anyone there and that he had written the report “just like that, with no real information”. The District Court considered this to be a gross violation of criminal procedure and requested the chief officer of the Uysk police station to take measures and report back to the court.
60. In his statement of appeal, the applicant submitted in particular that pre-trial written depositions by the victim and eyewitnesses had been read out in breach of the domestic law.
61. On 23 May 2005 the Chelyabinsk Regional Court rejected the appeal and upheld the conviction in substance. The appeal court found, in particular, that the first-instance court had taken “sufficient measures” to secure Ms K.’s appearance.
62. Article 202 of the Code of Criminal Procedure regulates the way in which samples may be obtained for a comparative study. The investigator may obtain samples of handwriting or body fluids from a suspect or defendant if it is necessary to check whether or not he or she has left traces in a specific place or on material evidence (paragraph 1). It is prohibited to obtain samples by methods that endanger the individual’s life and limb or diminish his honour and dignity (paragraph 2). If necessary, samples can be taken by a specialist (paragraph 3).
63. The Pre-Trial Detention Act, no. 103-FZ of 15 July 1995, provides that handcuffs may be used on a suspect or accused to put a stop to unlawful resistance on his part and to prevent him from escaping or from causing harm to others or himself (section 45).
64. The Police Act, no. 1026-I of 18 April 1991, in force at the material time, sets out an exhaustive list of circumstances in which special means, including rubber truncheons and handcuffs, and firearms may be used.
65. Handcuffs may only be applied to overcome resistance offered to a police officer, to arrest an individual caught in the act of committing a crime and attempting to escape, and to bring arrestees to police stations, to transport and protect them if their behaviour allows the conclusion that they are liable to escape, cause harm to themselves or other individuals or offer resistance to police officers (section 14 § 1 (2, 3, 5)).
66. Rubber truncheons may only be used to fend off an assault on police officers or civilians, overcoming resistance offered to a police officer, or putting an end to mass breaches of public order or group actions that interfere with the functioning of transport, communications or organisations (section 14 § 1 (1, 2, 7)).
67. The Code of Criminal Procedure provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281).
68. If a witness does not obey a summons to appear without a good reason, the court may order that the police or the bailiffs should bring him to the courtroom by force (Article 113).
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-5341
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: A.K. and T.K. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Polish nationals, born in 1950 and 1946 respectively. They are a married couple and live in Olsztyn, Poland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 May 1988 the applicants bought for cash 3 shares in a joint stock company (spółka akcyjna) “C”. On 23 May 1989 the shareholders of the company decided that the share capital would be increased to 25,000,000 million old zlotys (PLZ) and approved a private placement of a new issue of shares. On 30 November 1989 the applicants signed before a notary a deed in which they agreed to acquire 500 shares in the “C” company in exchange for a contribution in kind. Their contribution consisted of an industrial estate situated in the Barczewo county. On the same date the company was registered as the owner of the property in the Olsztyn District Court real property register (Sąd Rejonowy Wydział Ksiąg Wieczystych).
On 15 June 1990 the second applicant joined the company management board. Subsequently, he became unhappy with certain decisions of other company directors. As a result, on 6 April 1992 the applicants requested the company that their contribution in kind be returned to them.
On 28 May 1992 the Olsztyn District Court allowed the company’s request and registered in the commercial register an increase in the share capital to PLZ 25,000,000.
On 29 May 1992 the shareholders of the company adopted a resolution obliging the management board to conclude an agreement under which the property contributed by the applicants would be transferred back to them and they would return the company shares. At the same time, the shareholders approved the second applicant’s resignation from the board. Subsequently, the applicants requested the prosecution service to initiate criminal proceedings against certain members of the management board. In addition, they were involved in court proceedings concerning the property record in a real property register and bankruptcy proceedings relating to the “C” company.
On 16 June 1993 the applicants lodged with the Olsztyn District Court an application under Section 21 of the Commercial Code. They requested the court to strike out two entries in the commercial register concerning the “C” company. The first contested entry stated that the share capital of the company amounted to PLZ 25,000,000. The second entry confirmed changes in the company by-laws. The applicants claimed that the entries had been based on untrue statements and inaccurate information and had been inadmissible in law.
On 8 February 1994 the court held a hearing and took evidence from the parties.
On 23 January 1995 the applicants complained to the Supreme Court (Sąd Najwyższy) about the inactivity of the Olsztyn District Court. They claimed that the proceedings in their case disclosed unreasonable delay even though their request could have been decided at the first hearing.
On 24 February 1995 the Supreme Court notified the President of the Olsztyn District Court that the above complaint had been lodged and instructed the court of first instance to take further action in respect of it.
On 23 March 1995 the Olsztyn District Court held a hearing during which it allowed the applicants' request of 16 June 1993. In particular, the court struck out two entries in the commercial register concerning an increase of the share capital and amendments of the by-laws. The court also ordered the management board that the amendments to the company by-laws be made to ensure their compliance with domestic legislation. In addition, it instructed the board to take several other measures required by the Commercial Code in relation to the increase in the share capital.
B. Relevant domestic law
The 1934 Commercial Code provides that a joint-stock company should be registered in the District Court commercial register. The Register contains records concerning inter alia a company name, registered office, business, officers, share capital, number of shares and contributions. A company is required to notify within 2 weeks any changes in the records.
Section 21 of the Commercial Code, insofar as relevant, provides:
"1. (...) where an application is made to rectify or strike an entry out of the commercial register on the grounds that it is unjustified, the court may order that a warning (wzmianka) [about the application] be made in the register. (…)”


ITEMID: 001-93157
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BODROZIC AND VUJIN v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1970 and 1966 respectively and live in Kikinda.
6. The applicants are journalists and were employed by the local weekly newspaper Kikindske.
7. On 9 April 2004 the first applicant published an article criticising several criminal convictions he and another journalist had incurred for defamation. The article was entitled ‘They have not punished us much for what we are’ (‘Malo su nas kaznili, kakvi smo’) and, in so far as relevant, read as follows:
“Where will our souls go, we wonder. Are we Superhiks [the most prominent villain from the ‘Alan Ford’ comic book] of Kikinda, who take from the poor and give to the rich? Are we arrogant spendthrifts who waste money belonging to all Kikinda citizens, so that poor people have to pay our fines for offensive writing? Has the judge D.K.... punished us too mildly and shouldn’t he have satisfied the request of the lawyer S.K. and deservedly ripped us off to the tune of 150,000 dinars? But couldn’t our prosecutor, who is surely not a blonde, but is being whistled at by workers on strike, have asked for more, since [another column in the K. newspaper] ruined his reputation acquired over decades, and in particular over the past year or two, when he so ‘skilfully’ drafted dismissals to all the [‘]non-workers[‘] and the opposition from [a local factory]? And what should the citizens who finance our public company do and think? Could they also wonder who gave us the right to write insulting texts so that the judges of Kikinda must punish us?... Do we have the right to deny that people are tired of such a behaviour of ours...? Do we have the right to deny our fellow citizens their wish for a quiet life, free of stress and various court proceedings? Do we have a soul, we wonder out loud, and if we do, where will it go after we’ve prepared another scandal? We should be ashamed of ourselves.”
8. In the same issue, the second applicant was the editor of the page entitled ‘Amusement’, consisting of anagrams, jokes, a crossword and a horoscope. In the top middle section of the page there was a photo of a blonde woman in her underwear, next to which there was a text, which, in its relevant part, read as follows:
“JPICK and the manager were visited by a blonde the other day. For that occasion the blonde was whistled at by the workers who were not on strike. And she wasn’t even a lawyer...”
On the left of the photograph, there was a small box containing three anagrams, the first of which was an anagram of S.K.’s name.
9. Shortly after publication of the above, S.K. instituted private criminal proceedings for insult against the applicants in the Kikinda Municipal Court.
10. On 14 February 2005 the court convicted the applicants of insult. The court fined each of them 12,000 dinars (RSD, approximately EUR 150), ordering them jointly to pay S.K. another RSD 16,000 (approximately EUR 200) in respect of the costs of the proceedings.
11. In its judgment, the first-instance court defined insult as a statement or an action objectively humiliating to a certain individual, constituting an attack on his or her honour. Acknowledging that S.K. was a public figure, the court explained that under domestic law an action done by way of a joke was not a criminal offence as long as that joke did not overstep acceptable boundaries and become insulting. The applicants must have known that S.K. considered their articles insulting, since they had previously been convicted of using identical terms about him. The court took particular note of the fact that the applicants mentioned S.K. directly and indirectly on several different pages of the same newspaper, and concluded that S.K. had proved that those texts had insulted him just by instituting the private criminal proceedings. In particular, the court held as follows:
“Such writing by the defendants demonstrates the intention to demean the private prosecutor [S.K.]. This is so because it is clear that the defendants, in different ways and in different sections [of the newspaper], compared the private prosecutor to a female, which comparison is objectively insulting in society. Namely, in our mentality it is insulting to feminise a man, and jokes about blondes are not in the least flattering, because they portray blondes as stupid people subject to mockery.”
12. On appeal, on 4 May 2005 the Zrenjanin District Court upheld the first-instance judgment and its reasoning.
13. The relevant provisions of the Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06) read as follows:
“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
14. The Criminal Code of the Republic of Serbia (Krivični zakon Republike Srbije; published in OG RS nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, 21/90, 16/90, 49/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03), in so far as relevant, reads as follows:
“1. Whoever insults another shall be fined or punished by imprisonment not exceeding three months.
2. Whoever commits an act described in [the above] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding six months.”
“1. ... [no one] ... shall ... be punished for insulting another person if he [or she] does so in a scientific, literary or artistic work or a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it is clear that there was no [underlying] intent to disparage.
2. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ... , if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...”
15. The General Criminal Code (Osnovni krivični zakon; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90, 54/90, the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 35/92, 37/93, 24/94, 61/01 and OG RS no. 39/03), in so far as relevant, reads as follows:
“... 3. If the fine cannot be collected, the court shall order a day of imprisonment for each 200 dinars of the fine, provided that the overall term of imprisonment does not exceed six months.
4. If the convicted person pays only a part of the fine [imposed], the rest shall ... be converted into imprisonment, and if the convicted person [subsequently] pays the remainder of the fine, his [or her] imprisonment shall be discontinued.”
VIOLATED_ARTICLES: 10