ITEMID: 001-110515
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF M. v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1964 and lives in Odessa.
6. In the period between 10 September and 13 October 1999 the applicant had in-patient treatment in the Odessa Region Psychiatric Hospital (“the hospital”) which is a State-run institution. In 2000 she was registered with the Odessa Region Psychoneurological Dispensary (“the psychoneurological dispensary”) as a person with potential mental problems.
7. On 24 September 2003 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. However, the applicant ignored the referral and stayed at home with her mother. A report of the applicant’s assessment was provided to the hospital.
8. In the next few days the applicant’s condition worsened and her behaviour became aggressive towards her mother and neighbours. The mother and the housing maintenance authority therefore complained to the hospital about the applicant’s conduct.
9. In the morning of 28 September 2003 the applicant was taken to the hospital by ambulance and was assessed by a psychiatrist of the hospital, who concluded that she needed to be hospitalised for a serious mental disorder. The applicant was therefore kept in the hospital.
10. On 29 September 2003 a panel of three different psychiatrists of the hospital assessed the applicant once again and issued a report stating that she was a danger to society due to her serious mental disorder, which required in-patient psychiatric treatment. The psychiatrists specified in the report that the applicant’s manner of communication with her mother and neighbours was aggressive; she threatened them, threw glass jars, bottles and vases off the balcony, which was on the fifth floor, played loud music at night and damaged property in the apartment.
11. The hospital therefore lodged an application with a local court, seeking authorisation for compulsory admission to hospital in accordance with sections 14 and 16 of the Psychiatric Assistance Act.
12. On 30 September 2003 a judge at the local court conducted an onsite hearing of the applicant’s case in the administration wing of the hospital. The hearing was held in the presence of a prosecutor and one of the doctors who had assessed the applicant earlier. Following the hearing the court allowed the application and held as follows:
“... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed.
It appears from the case file that the patient was taken from home to [the hospital] by the ambulance after showing signs of mental illness which suggested that she was a danger to society.
A panel of psychiatrists [of the hospital] has concluded that the patient should have in-patient treatment.
Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court
has decided that
[M.] should be compulsorily hospitalised to undergo medical treatment.
The decision shall not be subject to appeal. ...”
13. On 19 December 2003 the compulsory treatment was completed and the applicant was discharged from the hospital.
14. According to the applicant, the sanitary and hygienic conditions in which she was kept in the hospital were unsatisfactory.
15. On 15 July 2004 the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in-patient treatment for a serious mental disorder. The applicant refused the proposed treatment and stayed at home. A report of the assessment of the applicant was sent to the hospital.
16. After the assessment, the applicant’s condition worsened in a similar way as before the second hospitalisation and the neighbours and the housing maintenance authority complained to the hospital about her behaviour.
17. In the morning of 19 July 2004 the applicant was taken to the hospital by ambulance and assessed by a psychiatrist there, who concluded that she was suffering from a mental disorder and needed to be hospitalised. The applicant was therefore kept in the hospital.
18. On 20 July 2004 a panel of three psychiatrists of the hospital, including the psychiatrist who had assessed the applicant the previous day, issued a report stating that the applicant was a danger to society due to her serious mental disorder and that she needed in-patient treatment. The hospital therefore applied to the court for an order for compulsory admission.
19. On 21 July 2004 the local court allowed the application, following an on-site hearing held in the administration wing of the hospital. The hearing was attended by the prosecutor and one of the psychiatrists who had previously assessed the applicant. The court held as follows:
“... having examined the case file and heard a representative of [the hospital] and a prosecutor, the court considers that the application in question should be allowed.
It appears from the case file that on 19 July 2004 the patient was taken from home to [the hospital] by ambulance after showing signs of a serious mental disorder. For this reason a panel of psychiatrists found that the applicant was a danger to society and should be compulsorily admitted to [the hospital] for in-patient treatment.
The representative of [the hospital] has submitted that the patient should be admitted to the hospital and treated for a serious mental disorder.
Having regard to all the circumstances, the court comes to the conclusion that the patient’s compulsory hospitalisation is required.
Relying on the Psychiatric Assistance Act and Article 202 of the Code of Civil Procedure, the court
has decided that
[M.] should be compulsorily hospitalised to undergo medical treatment.
The decision shall not be subject to appeal. ...”
20. On 8 September 2004 the applicant was discharged from the hospital on completion of the treatment.
21. On 13 February 2006 the applicant was assessed by a doctor at the psychoneurological dispensary, who concluded that the applicant’s mental disorder had recurred.
22. On 17 February 2006 the applicant made a written application for admission to the hospital for treatment. The application was signed only by the applicant. According to the applicant, she had been compelled to do so under the threat of never being discharged from the hospital. She had been in poor health, mentally and physically, that day.
23. Subsequently, the application was marked and signed by a member of hospital staff, designating the department of the hospital to which the applicant was to be assigned.
24. According to the applicant, the regime under which she was kept in the hospital was strict, as she had to stay in the hospital for the whole day; her movements within the premises of the hospital were restricted; and her personal belongings were limited in number and inventoried.
25. On 19 April 2006 the applicant was discharged from the hospital.
26. On an unspecified date the applicant instituted civil proceedings in the Suvorovskyy District Court of Odessa against Odessa Regional Oncological Hospital, seeking reinstatement in the position of doctor and payment of salary arrears.
27. On 9 February 2005 the court rejected her claim as unsubstantiated. On 15 June 2005 the Odessa Regional Court of Appeal upheld that judgment.
28. On the expiration of the time-limit the applicant lodged an appeal on points of law with the Supreme Court against the judgment of 9 February 2005. The applicant did not request the Supreme Court to extend the timelimit.
29. On 28 October 2005 the Supreme Court declared the applicant’s appeal inadmissible as submitted out of time.
30. The relevant provisions of the Constitution read as follows:
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
31. Article 202 of the Code of Civil Procedure of 18 July 1963 (in force until 1 September 2005) provided that a court decision had to be lawful and substantiated. The courts had to substantiate their decision with the pieces of evidence they had examined during the court hearing.
32. Article 248-1 of that Code provided that that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court.
33. The Code of Civil Procedure of 18 March 2004 provides in Section XI, “Final and transitional provisions”, as follows:
“1. This Code shall enter into force on 1 September 2005 ...
3. [The following normative acts] shall be repealed with the entry into force of this Code:
The Code of Civil Procedure of 18 July 1963 ...”
34. The relevant provisions of the Code read as follows:
“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ...
2. Any decisions, actions or inaction on the part of public authorities may be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”
“1. The terms listed below shall have the following meaning:
1) the administrative jurisdiction case (hereinafter ‘the administrative case’) – a public-law dispute, referred to an administrative court, in which one of the parties shall be a body of the executive power, local self-governance, its official or the other subject empowered to perform public administrative functions on the basis of legalisation, including those aimed at the exercise of delegated powers;
...”
“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by the subjects of public authority and [legal relationships arising] in the course of public formation of a subject of public authority by way of election or referendum.
...”
35. The relevant extracts from the Act read as follows:
“A person shall be hospitalised in a mental health facility voluntarily, either at his or her request or with his or her conscious agreement. ... Consent to hospitalisation shall be included in the medical documentation following the signature of the person concerned or his or her legal representative and a psychiatrist.”
“A person who is suffering from a mental disorder may be hospitalised in a mental health facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within the mental health facility and if, as a result of the serious mental disorder, such a person:
commits or expresses real intentions to commit acts which are directly dangerous to this person or to others; or
is unable to meet his or her vital needs at the basic level.”
“A person who has been hospitalised in a mental health facility upon a decision of a psychiatrist on the grounds provided for in section 14 of this Act, shall be assessed, within twenty-four hours, by a panel of psychiatrists of the mental health facility to determine whether the hospitalisation is required. If the hospitalisation is found to be unnecessary and the person concerned does not wish to stay in the mental health facility, he or she shall be immediately discharged.
If compulsory hospitalisation of the person is required, a representative of the mental health facility in which the person is being kept shall apply, within twenty-four hours, to the court ... for compulsory hospitalisation of the person on the grounds provided for in section 14 of this Act. ...”
A person shall be compulsorily retained in a mental health facility exclusively for the period when the grounds justifying his or her hospitalisation exist.
A person, who has been compulsorily hospitalised in a mental health facility shall be assessed by a panel of psychiatrists at least once a month to determine whether the person should remain in hospital or be discharged.
If compulsory hospitalisation is required for more than six months, a representative of the mental health facility shall apply to the court ... seeking an extension of the compulsory hospitalisation. A report of a panel of psychiatrists giving grounds for an extension of the hospitalisation shall be enclosed with the application... The person’s hospitalisation may subsequently be extended, on each occasion for a period which does not exceed six months.
A person subjected to compulsory hospitalisation or his or her legal representative shall be entitled to lodge requests with a court for termination of the compulsory hospitalisation every three months, starting from the date of the court decision extending the hospitalisation.”
“A person shall be discharged from a mental health facility when the assessment or expert examination of his or her mental state has been completed, or when he or she has recovered from the illness, or when his or her mental state has changed to the extent that any further in-patient treatment is no longer required. A person who was voluntarily admitted shall be discharged upon written application by that person or his or her legal representative or upon a decision of a psychiatrist.
The discharge of a person who was voluntarily hospitalised may be refused if a panel of psychiatrists finds grounds for compulsory hospitalisation of the person as provided for in section 14 of this Act. In this event procedures for compulsory hospitalisation, continuation of the hospitalisation and discharge shall be conducted as provided for in sections 16, 17 and 22 (paragraphs 2 and 3) of this Act and paragraph 3 of this section.
A person subjected to compulsory hospitalisation shall be discharged upon a decision of a panel of psychiatrists or a court decision refusing extension of the hospitalisation. ...”
“... An application by a representative of a mental health facility for compulsory hospitalisation of a patient shall be examined by a court ... within twenty-four hours of receipt of the application. ...
Cases concerning compulsory provision of psychiatric assistance shall be examined in the presence of the person concerned. A prosecutor, a legal representative of the person concerned and either a psychiatrist or a representative of the mental health facility shall participate in the hearing.”
36. The relevant provisions of the Act provide:
“The public prosecutor shall examine applications and complaints of violation of rights of individuals and legal entities, except for those complaints which are within the competence of a court.
...
A decision taken by a public prosecutor can be appealed against before a higher public prosecutor or a court.”
37. The relevant extracts of this international instrument provide as follows:
1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle.
2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:
(a) The diagnostic assessment;
(b) The purpose, method, likely duration and expected benefit of the proposed treatment;
(c) Alternative modes of treatment, including those less intrusive;
(d) Possible pain or discomfort, risks and side-effects of the proposed treatment.
3. A patient may request the presence of a person or persons of the patient’s choosing during the procedure for granting consent.
4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. The consequences of refusing or stopping treatment must be explained to the patient.
...
...
3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in principle 16 below, apply, and he or she shall be informed of that right.
1. A person may be admitted involuntarily to a mental health facility as a patient or, having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with principle 4 above, that that person has a mental illness and considers:
(a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or
(b) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.
In the case referred to in subparagraph (b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.
2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient’s personal representative, if any, and, unless the patient objects, to the patient’s family.
...
1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.
2. The initial review of the review body, as required by paragraph 2 of principle 16 above, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.
3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.
4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.
5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of principle 16 above are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.
6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.
7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.
...”
38. The relevant extracts of the Recommendation provide as follows:
1. A person may be subject to involuntary placement only if all the following conditions are met:
i. the person has a mental disorder;
ii. the person’s condition represents a significant risk of serious harm to his or her health or to other persons;
iii. the placement includes a therapeutic purpose;
iv. no less restrictive means of providing appropriate care are available;
v. the opinion of the person concerned has been taken into consideration.
...
Decision
1. The decision to subject a person to involuntary placement should be taken by a court or another competent body. The court or other competent body should:
i. take into account the opinion of the person concerned;
ii. act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted.
...
3. Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which, according to law, they should be formally reviewed. This is without prejudice to the person’s rights to reviews and appeals, in accordance with the provisions of Article 25.
...
1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right:
i. to appeal against a decision;
ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals;
iii. to be heard in person or through a personal advocate or representative at such reviews or appeals.
2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals.
3. Member states should consider providing the person with a lawyer for all such proceedings before a court. Where the person cannot act for him or herself, the person should have the right to a lawyer and, according to national law, to free legal aid. The lawyer should have access to all the materials, and have the right to challenge the evidence, before the court.
...
7. A procedure to appeal the court’s decision should be provided.
...”
39. The CPT standards (document no. CPT/Inf/E (2002) 1-Rev. 2006, page 40) provide, in so far as relevant, as follows:
“V. Involuntary placement in psychiatric establishments
... 41. Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.
Of course, consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patient’s condition and the treatment proposed. ... Consequently, all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information (results, etc.) should also be provided following treatment. ...
52. The procedure by which involuntary placement is decided should offer guarantees of independence and impartiality as well as of objective medical expertise. ...
55. The CPT also attaches considerable importance to psychiatric establishments being visited on a regular basis by an independent outside body (eg. a judge or supervisory committee) which is responsible for the inspection of patients’ care. This body should be authorised, in particular, to talk privately with patients, receive directly any complaints which they might have and make any necessary recommendations. ...
56. Involuntary placement in a psychiatric establishment should cease as soon as it is no longer required by the patient’s mental state. Consequently, the need for such a placement should be reviewed at regular intervals. ...”
40. The relevant excerpts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 24 November to 6 December 2002 (CPT/Inf (2002) 19) read as follows:
“D. Mental health establishments
...
2. Chernivtsi Regional Clinical Psychiatric Hospital
f. safeguards offered to psychiatric patients
... 166. A few patients were officially admitted on a non-voluntary basis under a civil committal procedure.
Nevertheless, as previously mentioned (cf. paragraph 146 above), a large number of the 510 adult patients in the secure wards had not consented to their admission to a psychiatric hospital and could not leave the hospital of their own free will. In practice, they did not have the slightest opportunity to benefit from the safeguards provided by the 2000 Law on Psychiatric Care, in particular the opportunity to contest their admission to hospital. In many cases, the files contained only a request for treatment made by a relative.
Worse still, an examination of the patients’ files revealed that some of them had been admitted to hospital without their consent simply on the basis of a letter from a public prosecutor or at the request of the Militia, without an involuntary committal request having been submitted to the competent court.
By letter of 15 April 2003, the Ukrainian authorities informed the CPT that instructions had been issued to put into practice at Chernivtsi the 2000 Law on Psychiatric Care. The CPT wishes to receive confirmation that this is currently the case. In addition, it recommends that the Ukrainian authorities immediately take all the necessary steps to ensure that the sections of the 2000 Law on Psychiatric Care concerning involuntary admission to hospital are scrupulously observed in all Ukrainian hospitals which admit non-voluntary patients. ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-85631
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: NOREMAC v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Kenneth Noremac, is a British national who was born in 1936 and lives in Kent. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 24 January 2001. They had no children from the marriage. On 1 May 2001 the applicant applied for widows benefits. On 10 May 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant made a request for reconsideration on 17 May 2001. On 30 May 2001 he was informed that he was not entitled to benefits as he was not a woman.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-91222
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF SERGEY ZOLOTUKHIN v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P7-4;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Luis López Guerra;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens
TEXT: 11. The applicant was born in 1966 and lives in Voronezh.
12. The events, as described by the parties and related in the relevant documents, unfolded on that day in the following manner.
13. On the morning of 4 January 2002 the applicant was taken to police station no. 9 of the Department of the Interior in the Leninskiy district of Voronezh (“the police station”) for the purpose of establishing how he had managed to take his girlfriend Ms P. into a restricted military compound.
14. At the police station the applicant was firstly taken to the office of the passport service. He was drunk and verbally abusive towards the passport desk employee Ms Y. and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him. After pushing Captain S. and attempting to leave, he was handcuffed. The police officers considered that the applicant’s conduct amounted to the administrative offence of minor disorderly acts.
15. The applicant was taken to the office of Major K., the head of the police station. Major K. drafted a report on the applicant’s disorderly conduct which read as follows:
“This report has been drawn up by Major K., head of police station no. 9, Voronezh45, to record the fact that on 4 January 2002 at 9.45 a.m. Mr Zolotukhin, who had been brought to police station no. 9 with Ms P., whom he had taken into the closed military compound unlawfully, uttered obscenities at police officers and the head of [unreadable], did not respond to reprimands, ignored requests by police officers to end the breach of public order, attempted to escape from police premises and was handcuffed, that is to say, he committed the administrative offences set out in Articles 158 and 165 of the RSFSR Code of Administrative Offences.”
16. Captain S. and Lieutenant-Colonel N. were also present in the office while Major K. was drafting the report. The applicant became verbally abusive towards Major K. and threatened him with physical violence. He again attempted to leave and kicked over a chair.
17. After the report was completed the applicant was placed in a car to be taken to the Gribanovskiy district police station (ROVD). The driver Mr L., Major K., Lieutenant-Colonel N. and Ms P. rode in the same car. On the way, the applicant continued to swear at Major K. and threatened to kill him for bringing administrative proceedings against him.
18. On 4 January 2002 the Gribanovskiy District Court found the applicant guilty of an offence under Article 158 of the Code of Administrative Offences of the Russian Soviet Federative Republic (RSFSR), on the following grounds:
“Zolotukhin swore in a public place and did not respond to reprimands.”
19. The applicant was sentenced to three days’ administrative detention. The judgment indicated that the sentence was not amenable to appeal and was immediately effective.
20. On 23 January 2002 a criminal case was opened against the applicant on suspicion of his having committed “disorderly acts, including resisting a public official dealing with a breach of public order” – an offence under Article 213 § 2 (b) of the Criminal Code of the Russian Federation – on 4 January 2002 at the police station. On the following day, the applicant was taken into custody. On 1 February 2002 two further sets of proceedings were instituted against the applicant on other charges.
21. On 5 April 2002 the applicant was formally indicted. The relevant parts of the charge sheet read as follows:
“On the morning of 4 January 2002 Mr Zolotukhin was taken to police station no. 9 in the Leninskiy district of Voronezh, for elucidation of the circumstances in which his acquaintance Ms P. had entered the territory of the closed military compound Voronezh-45. In the passport office at police station no. 9 Mr Zolotukhin, who was inebriated, flagrantly breached public order, expressing a clear lack of respect for the community, and began loudly uttering obscenities at those present in the passport office, namely Ms Y., a passport official in the housing department of military unit 25852, and Captain S., head of the road traffic department in police station no. 9; in particular, he threatened the latter, in his capacity as a police officer performing official duties, with physical reprisals. Mr Zolotukhin did not respond to Captain S.’s lawful requests to end the breach of public order; he attempted to leave the premises of the passport office, actively resisted attempts to prevent his disorderly conduct, provided resistance to Captain S., pushing him and pulling out of his reach, and prevented the passport office from operating normally.
Hence, through his intentional actions Mr Zolotukhin engaged in disorderly acts, that is to say, a flagrant breach of public order expressing clear disrespect towards the community, combined with a threat to use violence, and resisting a public official dealing with a breach of public order; the above amounts to the offence set out in Article 213 § 2 (b) of the Criminal Code.
As a result of his disorderly behaviour, Mr Zolotukhin was taken to the office of Major K., head of police station no. 9, Leninskiy district, Voronezh, who was present in his official capacity, so that an administrative offence report could be drawn up. [Major] K., in performance of his official duties, began drafting an administrative offence report concerning Mr Zolotukhin, under Articles 158 and 165 of the RSFSR Code of Administrative Offences. Mr Zolotukhin, seeing that an administrative offence report was being drawn up concerning him, began publicly to insult [Major] K., uttering obscenities at him in his capacity as a police officer, in the presence of Lieutenant-Colonel N., assistant commander of military unit 14254, and Captain S., head of the road traffic department in police station no. 9, thus intentionally attacking the honour and dignity of a police officer. Mr Zolotukhin deliberately ignored Major K.’s repeated requests to end the breach of public order and insulting behaviour. Mr Zolotukhin then attempted to leave the office of the head of the police station without permission and kicked over a chair, while continuing to direct obscenities at Major K. and to threaten him with physical reprisals.
Hence, Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties, that is to say, he committed the offence set out in Article 319 of the Criminal Code.
After the administrative offence report had been drawn up in respect of Mr Zolotukhin, he and Ms P. were placed in a vehicle to be taken to the Gribanovskiy district police station in the Voronezh region. In the car, in the presence of Ms P., LieutenantColonel N., assistant commander of military unit 14254, and the driver [Mr] L., Mr Zolotukhin continued intentionally to attack the honour and dignity of Major K., who was performing his official duties, uttering obscenities at him in his capacity as a police officer and thus publicly insulting him; he then publicly threatened to kill Major K., the head of police station no. 9, for bringing administrative proceedings against him.
Hence, by his intentional actions, Mr Zolotukhin threatened to use violence against a public official in connection with the latter’s performance of his official duties, that is to say, he committed the crime set out in Article 318 § 1 of the Criminal Code.
22. On 2 December 2002 the Gribanovskiy District Court delivered its judgment. As regards the offence under Article 213 § 2 of the Criminal Code, the District Court acquitted the applicant for the following reasons:
“On the morning of 4 January 2002 in ... police station no. 9 [the applicant], in an inebriated state, swore at ... Ms Y. and Captain S., threatening to kill the latter. He refused to comply with a lawful request by Captain S., ... behaved aggressively, pushed [Captain] S. and attempted to leave. Having examined the evidence produced at the trial, the court considers that [the applicant’s] guilt has not been established. On 4 January 2002 [the applicant] was subjected to three days’ administrative detention for the same actions [characterised] under Articles 158 and 165 of the Code of Administrative Offences. No appeal was lodged against the judicial decision, nor was it quashed. The court considers that there is no indication of a criminal offence under Article 213 § 2 (b) in the defendant’s actions and acquits him of this charge.”
23. The District Court further found the applicant guilty of insulting a State official under Article 319 of the Criminal Code. It established that the applicant had sworn at Major K. and threatened him while the latter had been drafting the report on the administrative offences under Articles 158 and 165 of the RSFSR Code of Administrative Offences in his office at the police station. Major K.’s statements to that effect were corroborated by depositions from Captain S., LieutenantColonel N. and Ms Y., who had also been present in Major K.’s office.
24. Finally, the District Court found the applicant guilty of threatening violence against a public official under Article 318 § 1 of the Criminal Code. On the basis of the statements by Major K., Lieutenant-Colonel N. and the applicant’s girlfriend it found that, after the administrative offence report had been finalised, the applicant and his girlfriend had been taken by car to the Gribanovskiy district police station. In the car, the applicant had continued to swear at Major K. He had also spat at him and said that, once released, he would kill him and abscond. Major K. had perceived the threat as real because the applicant had a history of abusive and violent behaviour.
25. On 15 April 2003 the Voronezh Regional Court, in summary fashion, upheld the judgment on appeal.
26. The Russian Constitution provides that “no one may be convicted twice for the same offence” (Article 50 § 1).
27. The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court, investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings (Article 27 §§ 4 and 5).
28. Article 158 of the RSFSR Code of Administrative Offences (in force at the material time) read as follows:
“Minor disorderly acts, that is, utterance of obscenities in public places, offensive behaviour towards others and other similar acts that breach public order and peace, shall be punishable by a fine of between ten and fifteen months’ minimum wages or by one to two months’ correctional work combined with the withholding of twenty per cent of the offender’s wages, or – if, inoffender’s character, these measures are not deemed to be adequate – by up to fifteen days’ administrative detention.”
29. The Criminal Code of the Russian Federation (version in force at the material time), in so far as relevant, read as follows:
“1. Disorderly acts, that is, serious breaches of public order or flagrant displays of disrespect towards the community, combined with the use of violence towards individuals or the threat to use violence or destroy or damage the property of others, shall be punishable ... by up to two years’ deprivation of liberty.
2. The same acts, if committed
...
(b) while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ...
– shall be punishable by between 180 and 240 hours’ mandatory work or by one to two years’ correctional work or up to five years’ deprivation of liberty.”
“The use of violence not endangering life or health, or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of between 200 and 500 months’ minimum wages ... or by three to six months’ detention or up to five years’ deprivation of liberty ...”
“Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between 50 and 100 months’ minimum wages, ... 120 to 180 hours’ mandatory work or six months to a year’s correctional work.”
30. In Resolution no. 4 of 27 June 1978 (with subsequent amendments), the Plenary Supreme Court ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant, but his or her actions were socially dangerous enough to be considered a crime, criminal proceedings should be brought against him or her under Article 206 of the RSFSR Criminal Code (replaced by Article 213 of the Russian Criminal Code after 1 January 1997) (§ 5). In Resolution no. 5 of 24 December 1991 (with subsequent amendments), the Plenary Supreme Court held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively, in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts (§ 20).
31. Article 14 § 7 of the United Nations Covenant on Civil and Political Rights provides as follows:
“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
32. Article 20 of the Statute of the International Criminal Court provides as follows:
“1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
(a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”
33. Article 50 of the Charter of Fundamental Rights of the European Union, which was solemnly proclaimed by the European Parliament, the Council and the Commission in Strasbourg on 12 December 2007 (OJ 14.12.2007, C 303/1), reads as follows:
“No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.”
34. Article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 (“the CISA”) provides as follows:
“A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.”
35. The Court of Justice of the European Union (“the CJEU”) has recognised the non bis in idem principle as a fundamental principle of Community law (Limburgse Vinyl Maatschappij NV (LVM) and Others v. Commission of the European Communities, Joined Cases C-238/99 P, C244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C254/99 P, § 59, 15 October 2002):
“... the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4 § 1 of Protocol No. 7 to the ECHR [the Convention], precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.”
36. In the area of competition law the CJEU applied the following approach to testing compliance with the non bis in idem principle (Aalborg Portland A/S and Others v. Commission of the European Communities, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C213/00 P, C-217/00 P and C-219/00 P, § 338, 7 January 2004):
“As regards observance of the principle ne bis in idem, the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.”
37. The CJEU’s case-law on police and judicial cooperation in criminal matters is based on a different interpretation of “idem” (Leopold Henri Van Esbroeck, Case C-436/04, 9 March 2006):
“27. In the first place, however, the wording of Article 54 of the CISA, ‘the same acts’, shows that that provision refers only to the nature of the acts in dispute and not to their legal classification.
28. It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle. Unlike Article 54 of the CISA, Article 14 § 7 of the International Covenant on Civil and Political Rights and Article 4 of Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms use the term ‘offence’, which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties.
...
30. There is a necessary implication in the ne bis in idem principle, enshrined in that Article, that the Contracting States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Contracting States even when the outcome would be different if its own national law were applied ([Case C-385/01] Gözütok and Brügge [[2003] ECR I-1345], paragraph 33).
31. It follows that the possibility of divergent legal classifications of the same acts in two different Contracting States is no obstacle to the application of Article 54 of the CISA.
32. For the same reasons, the criterion of the identity of the protected legal interest cannot be applicable since that criterion is likely to vary from one Contracting State to another.
33. The above findings are further reinforced by the objective of Article 54 of the CISA, which is to ensure that no one is prosecuted for the same acts in several Contracting States on account of his having exercised his right to freedom of movement (Gözütok and Brügge, paragraph 38, and Case C-469/03 Miraglia [2005] ECR I-2009, paragraph 32).
34. As pointed out by the Advocate General in point 45 of his Opinion, that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that, once he has been found guilty and served his sentence, or, where applicable, been acquitted by a final judgment in a member State, he may travel within the Schengen territory without fear of prosecution in another member State on the basis that the legal system of that member State treats the act concerned as a separate offence.
35. Because there is no harmonisation of national criminal laws, a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the Schengen territory as there are penal systems in the Contracting States.
36. In those circumstances, the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.
...
38. ... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time, in space and by their subject matter.”
38. The CJEU confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle (Norma Kraaijenbrink, Case C-367/05, 18 July 2007):
“26. ... it should be noted that the Court has already held that the only relevant criterion for the application of Article 54 of the CISA is identity of the material acts, understood as the existence of a set of concrete circumstances which are inextricably linked together (see Van Esbroeck, paragraph 36; Case C-467/04 Gasparini and Others [2006] ECR I-9199, paragraph 54; and Case C-150/05 Van Straaten [2006] ECR I-9327, paragraph 48).
27. In order to assess whether such a set of concrete circumstances exists, the competent national courts must determine whether the material acts in the two proceedings constitute a set of facts which are inextricably linked together in time, in space and by their subject matter (see, to that effect, Van Esbroeck, paragraph 38; Gasparini and Others, paragraph 56; and Van Straaten, paragraph 52).
28. It follows that the starting-point for assessing the notion of ‘same acts’ within the meaning of Article 54 of the CISA is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of the two Contracting States as a whole. Thus, Article 54 of the CISA can become applicable only where the court dealing with the second criminal prosecution finds that the material acts, by being linked in time, in space and by their subject matter, make up an inseparable whole.
29. On the other hand, if the material acts do not make up such an inseparable whole, the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘same acts’ within the meaning of Article 54 of the CISA.
30. As the Commission of the European Communities in particular pointed out, a subjective link between acts which gave rise to criminal proceedings in two different Contracting States does not necessarily mean that there is an objective link between the material acts in question which, consequently, could be distinguished in time and space and by their nature.
...
32. ... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in the two Contracting States is such that it is possible to find that they are ‘the same acts’ within the meaning of Article 54 of the CISA.
...
36. In the light of the foregoing, the answer to the first question must therefore be that Article 54 of the CISA is to be interpreted as meaning that:
– the relevant criterion for the purposes of the application of that Article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;
– different acts consisting, in particular, first, in holding in one Contracting State the proceeds of drug trafficking and, second, in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘the same acts’ within the meaning of Article 54 of the CISA merely because the competent national court finds that those acts are linked together by the same criminal intention;
– it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible, in the light of the said relevant criterion, to find that they are ‘the same acts’ within the meaning of Article 54 of the CISA.”
39. Article 8 § 4 of the American Convention on Human Rights reads as follows:
“An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same cause.”
40. The Inter-American Court of Human Rights gave the following interpretation of that provision (Loayza-Tamayo v. Peru, 17 September 1997, Series C No. 33, § 66):
“This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause. Unlike the formula used by other international human rights protection instruments (for example, the United Nations International Covenant on Civil and Political Rights, Article 14 § 7), which refers to the same ‘crime’), the American Convention uses the expression ‘the same cause’, which is a much broader term in the victim’s favour.”
41. In the United States the double-jeopardy rule arises out of the Fifth Amendment to the Constitution, the relevant clause of which reads:
“... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...”
42. In the case of Blockburger v. United States, 284 U.S. 299 (1932), in which the defendant had sold drugs not in the original package and without a written order of the purchaser, and where the sale had been characterised as two statutory offences, the Supreme Court adopted the following interpretation:
“Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one.
...
Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not ... [T]his court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other’.”
43. In the case of Grady v. Corbin, 495 U.S. 508 (1990), which concerned “vehicular homicide” by the defendant Mr Corbin, the Supreme Court developed a different approach:
“... [A] technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials. This case similarly demonstrates the limitations of the Blockburger analysis. If Blockburger constituted the entire double-jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for homicide. The State could improve its presentation of proof with each trial, assessing which witnesses gave the most persuasive testimony, which documents had the greatest impact, which opening and closing arguments most persuaded the jurors. Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense.
Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the double-jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. ... The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct ... [A] State cannot avoid the dictates of the double-jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ...”
44. Nevertheless, in the case of United States v. Dixon, 509 U.S. 688 (1993), the Supreme Court returned to the Blockburger test:
“The double-jeopardy clause’s protection attaches in non-summary criminal contempt prosecutions just as it does in other criminal prosecutions. In the contexts of both multiple punishments and successive prosecution, the double-jeopardy bar applies if the two offenses for which the defendant is punished or tried cannot survive the ‘same elements’ or ‘Blockburger’ test. ... That test inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ within the clause’s meaning, and double jeopardy bars subsequent punishment or prosecution. ...
Although prosecution [in the present case] would undoubtedly be barred by the Grady ‘same-conduct’ test, Grady must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion. ... Moreover, the Grady rule has already proved unstable in application, see United States v. Felix, 503 U.S. ... Although the Court does not lightly reconsider precedent, it has never felt constrained to follow prior decisions that are unworkable or badly reasoned.”


ITEMID: 001-5009
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: WICKS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen. He was born in 1942 and lives in Margate, Kent, in the United Kingdom. He is represented before the Court by S.J. Burton & Co., solicitors, and Mr Anthony Speaight QC, counsel, practising in Margate, Kent, and London respectively.
On 13 March 1990 an enforcement notice was issued and served on Mr Wicks under section 87 of the Town and Country Planning Act 1971 (“TCPA 1971”). The notice recited that there appeared to the Thanet District Council (“the Council”) to be a breach of planning control in that a two-storey building had been erected to the rear of 23 and 24 Tivoli Road, Margate, and of 1A and 1B Buckingham Road, Margate, without the necessary planning permission. The notice required the applicant to remove all parts of the building which were higher than 2.5 metres above the original ground level, within one month of 24 April 1990. The notice complied on its face with the provisions of the TCPA 1971.
On 24 August 1990 the Town and Country Planning Act 1990 (“TCPA 1990”) entered into force, consolidating the previous legislation including the TCPA 1971.
The applicant appealed to the Secretary of State for the Environment under section 174 of the TCPA 1990. Section 174 lists eight grounds upon which appeals may be brought. The applicant appealed on four grounds:
“(a) that planning permission ought to be granted for the development to which the notice relates....
(b) that the matters alleged in the notice do not constitute a breach of planning control;
(c) that the breach of planning control alleged in the notice has not taken place;
(g) that the steps required by the notice to be taken exceed what is necessary to ... achieve a purpose specified in section 173(4) ...”
In accordance with the TCPA 1990, an inspector was appointed to determine the appeal against the enforcement notice. Neither the applicant nor the Council requested a formal public hearing or public inquiry. The inspector made her decision after inspecting the building and considering written representations from both parties. In her decision letter dated 10 May 1991, the inspector rejected the appeal under all four grounds.
The applicant did not appeal against the decision of the inspector, and on 10 June 1991, the enforcement notice came into effect. The applicant remained the owner of the premises, and did not reduce the structure to a height of 2.5 metres as required by the notice.
On 11 June 1992, a summons was issued alleging that the applicant had committed a criminal offence under section 179 of the TCPA 1990, by failing to remove parts of the building higher than 2.5 metres. The applicant was granted legal aid for his representation in criminal proceedings by solicitors and counsel.
The applicant’s legal advisers sought and obtained disclosure of documents from the Council. On the basis of these documents, the legal advisers wished to argue that there had been bad faith, including bias and improper motives, on the part of a Councillor in connection with the decision to issue the enforcement notice. The applicant’s counsel advised him that an application for leave to move for judicial review, and thereby directly challenge in separate proceedings the decision to issue the enforcement notice, would have no reasonable prospect of success, being some two years out of time.
The criminal trial took place on 27 and 28 September 1993 at the Canterbury Crown Court, before His Honour Judge Rooke and a jury. The judge ruled that the applicant was not entitled to contend, as a defence in the criminal proceedings, that the decision to issue the enforcement notice had been influenced by bias and bad faith, as a challenge to the enforcement notice could only be brought by way of proceedings for judicial review. Consequently, the applicant changed his plea from “not guilty” to “guilty”.
The applicant appealed against the conviction on the basis that the ruling of His Honour Judge Rooke had been wrong. On 11 April 1995, the Court of Appeal (Criminal Division) dismissed the appeal. On 15 July 1996, the House of Lords granted leave to appeal.
A hearing took place before the House of Lords on 12 and 13 February 1997 and, on 21 May 1997, the House of Lords dismissed the applicant’s appeal ([1998] Appeal Cases 92). The House of Lords held that “enforcement notice” in section 179(1) of the TCPA 1990 meant a notice issued by a planning authority which, on its face, complied with the requirements of the Act and had not been quashed on appeal or by judicial review. The effect of this was that, to constitute a defence in the criminal proceedings, the validity of an enforcement notice would have to be challenged within the time limits for a statutory appeal under the TCPA 1990 or for an application for judicial review. It noted that the statutory grounds of appeal against an enforcement notice were wide enough to include every aspect of the merits of the decision to serve an enforcement notice. An application for judicial review would in practice be needed only for the rare case in which enforcement was objectively justifiable but the decision that service of the notice was “expedient” (section 172(1)(b)) was vitiated by some impropriety.


ITEMID: 001-118575
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF VELEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1979 and lives in Sofia.
6. On 21 March 2005 the applicant and another person, Mr E.Y., were detained by the police and brought to a police station, on suspicion of having committed a robbery.
7. The applicant remained in detention until 24 March 2005. He alleged that he had been beaten by police officers during two interrogations on 21 and 22 March 2005, with the aim to make him confess to having committed the robbery.
8. The facts concerning the applicant’s detention and allegations of illtreatment, as well as the findings of the medical examinations he underwent, are summarised in the Sofia Administrative Court’s judgment of 6 June 2011, quoted in paragraphs 29-31 below.
9. The criminal proceedings for robbery against the applicant and Mr E.Y. were discontinued on 6 March 2006.
10. On 28 August 2006 the applicant lodged a complaint with the Sofia Military Prosecutor’s Office, stating that on 21 and 22 March 2005, during his detention, he had been beaten by police officers, in order to force him to confess to an offence. He further stated that he did not know the names of the officers but would be able to identify them.
11. On 26 January 2007 the prosecutor instituted criminal proceedings against Mr G.H., one of the police officers who had interviewed the applicant. The prosecutor stated that on 21 March 2005, in the performance of his duties, Mr G.H. had punched the applicant in the face, chest and back. The prosecutor qualified the criminal conduct as minor bodily injury without detriment to the applicant’s health, an offence under Article 131 § 1 (2) taken together with Article 130 § 2 of the Criminal Code.
12. The applicant was interviewed on 10 January, 31 January and 26 March 2007. On each of these occasions he gave descriptions of the officers who had assaulted him and of others who had witnessed the attacks.
13. On 20 March 2007 the prosecutor conducted a procedure in which the applicant was confronted with the suspect Mr G.H.; the applicant stated that Mr G.H. was not one of the officers who had assaulted him.
14. On 11 May 2007 the prosecutor terminated the criminal proceedings on the ground that no offence had been committed. He found that the applicant’s complaints were unsubstantiated because his statements were vague and could not be fully verified; he had stated clearly that Mr G.H. had not beaten him; his description of the offenders was very general; Mr E.Y., who had witnessed the alleged physical assault, could not be traced; and no other witnesses to the applicant’s condition before or after the arrest had been identified. In addition, it was unclear why the applicant had lodged his complaint with the prosecutor more than a year after the alleged beating.
15. The applicant appealed, and by a decision of 6 July 2007 the Sofia Military Court quashed the prosecutor’s order. It stated that, with the exception of Mr G.H., the prosecutor had failed to interview the police officers who had been on duty on the night of the events. The prosecutor had also failed to interview witnesses on behalf of the applicant who could have testified about his condition before and after his arrest, and to conduct an identification parade.
16. Subsequently, the applicant was once again interviewed on 6 August 2007. His mother was interviewed on the same day. She stated that after his release the applicant had had bruises all over his body, had been in pain and had said that he had been beaten by police officers.
17. On 20 August 2007 the prosecutor suspended the criminal proceedings on the ground that the whereabouts of Mr E.Y. were unknown.
18. On an appeal by the applicant, on 7 November 2007 a prosecutor at the Sofia Appellate Military Prosecutor’s Office quashed that order, finding that the testimony of Mr E.Y. was not indispensable for the investigation and that the prosecutor had failed to follow all the instructions given by the Military Court on 6 July 2007.
19. On 20 November 2007 the prosecution authorities conducted a confrontation between the applicant and Mr D.V., one of the officers who had interviewed him on 22 March 2005. The applicant stated that it had not been Mr D.V. but another person who had hit him on that day.
20. By an order of 17 December 2007, the prosecutor terminated the criminal proceedings against Mr G.H. and sent the case back to the investigator with instructions to find the perpetrators.
21. On 19 February 2008 the applicant participated in a photographbased identity parade. On the basis of several photographs of different individuals presented to him, the applicant identified two of them as the police officers who had beaten him on 21 March 2005 but was unable to identify the officer who had beaten him on 22 March 2005.
22. On 25 and 29 February 2008 the applicant was confronted with D.D. and S.S., but stated that he did not recognise them. It appears that these were not the officers recognised by the applicant at the earlier photograph-based identity parade.
23. On 11 March 2008 the prosecutor terminated the criminal proceedings. He found that there was no evidence to support the alleged illtreatment except for the applicant’s statements, which were vague and very general; the only eyewitness, Mr E.Y., could not be traced and thus it was impossible to question him; the applicant had admitted to having seen the alleged offenders after the incident, which, in the prosecutor’s view, had corrupted the photograph-based identity parade procedure; and the initial medical reports of 22 and 23 March 2005 did not record any injuries, while the report of 26 March 2005 was unclear on whether the injuries had been caused on 21 or 22 March 2005.
24. On an appeal by the applicant, in a decision of 2 April 2008 the Sofia Military Court quashed the prosecutor’s order and returned the case for further investigation. As to the investigation conducted so far, the court found in particular the following:
“During the preliminary investigation the witness Velev was interviewed and indicated that on the day following his detention he was brought to the upper floor of the police directorate, where there was a woman and three men. Velev describes in detail the police officer who punched him in the area of the ear and the body – about 160 cm in height, with black hair. Velev describes also the officer who hit him on 21 March 2005 – about 25-30 years old, 175-180 cm in height, with short black hair, a padlock-shaped beard.
The only possible conclusion concerning the identifications in the case is that they were not conducted in accordance with the requirements of the [Code of Criminal Procedure], because they were all conducted through photographs. The photographs cannot show the persons’ height [...]. These identifications are useless, given the witness’ statements. On the other hand, as seen from the [albums attached], the witness was shown persons of a different age, not the one described by him. Moreover, it is not clear why the identification parade had to be conducted through the showing of photographs, from which the persons’ height and hair colour are not visible.
In this connection, it is necessary to interview the head of the police directorate, as well as the officials responsible for criminal investigations, [so as to establish] which of their subordinates had a padlock-shaped beard at the time and met the description given by the victim.
The court considers that the investigation was not comprehensive and objective, because important witnesses have not been interviewed by the military investigator and, if necessary, confrontations had to be organised.
Moreover, it was necessary to collect evidence as to which officers worked on the case on the date at issue; this had to be done though an interview with their direct superiors. It was necessary to conduct identification parades, and not photograph identifications, [so as to perceive] the features such as hair and beard.”
25. Upon an appeal by the prosecutor, in a decision of 22 April 2008 the Sofia Military Court of Appeal reversed the above decision and terminated the criminal proceedings. It found, this time, that given the expiry of more than three years since the dates of the events, the investigation had become time-barred (see paragraph 36 below).
26. The Court has not been informed of disciplinary or any other measures or an internal inquiry, undertaken in relation to the applicant’s complaints.
27. On 10 March 2010 the applicant brought an action against the Sofia Police Directorate under the State and Municipalities Responsibility for Damage Act (“the SMRDA”), seeking damages for being beaten by police officers on 21 and 22 March 2005. The action was allowed by a judgment of the Sofia Administrative Court (“the SAC”) of 6 June 2011.
28. The Sofia Police Directorate did not take part in the proceedings and did not comment on the applicant’s claims. A prosecutor from the Sofia city prosecutor’s office, who took part pursuant to a requirement of the law, considered the claim well-founded, but also considered that the amount in damages was exaggerated.
29. As to the facts of the case, the SAC found, in particular, the following:
“The plaintiff Anton Velinov Velev was detained [...] on 21 March 2005, at 21.50 p.m.
As seen from the decision of the prosecutor [of 24 March 2006] discontinuing the criminal proceedings, a preliminary investigation was opened against [Mr E.Y.] and Anton Velinov Velev on suspicion that on 21 March 2005, in [Sofia], acting in complicity, the two of them had taken away an item belonging to another – a purse, containing personal chattels and money – from [Ms P.]. On the same date [Ms P.] and [Ms V.] had been attacked by two unknown persons, who had knocked down [Ms P.], had taken her purse and had run away. The two victims immediately called [the police] and described in general terms the attackers. [Mr E.Y.] and Velev were detained nearby and brought to the witnesses. [Ms V.] stated that they had not been the attackers. By the same decision [of 24 March 2006] the investigation against [Mr E.Y.] and Velev was discontinued for lack of evidence.
The plaintiff attached to his statement of claim a [medical report by an in-house doctor], following a medical examination of Anton Velinov Velev of 23 March 2005. The document reported a “light bruise on the left side of the chest and back”.
As seen from a medical report of 26 March 2005, a [coroner] examined the plaintiff [following his release]. During the examination the doctor established: 1) a 3.5 cm by 2 cm haematoma to his left ear; 2) a 4 cm by 3 cm blue-yellow coloured haematoma above the left breast area; 3) a 2 cm by 0.7 cm red-blue coloured haematoma with yellow edges on the left side of the chest near the abdomen; 4) yellow-blue coloured haematomas measuring 1 cm by 1 cm and 2 cm by 1 cm on the left side of the back; 5) a group of yellow-blue coloured haematomas measuring 2 cm by 1 cm and 6 cm by 2.5 cm on the left side of the waist; 6) a 4 cm by 2 cm yellow-blue coloured haematoma in the centre of the waist; 7) a group of blue-yellow coloured haematomas overlapping each other, measuring 3 cm by 1 cm and 5 cm by 4.5 cm and reaching from the right side of the chest down to the waist; and 8) a 10 cm by 4 cm yellow-blue coloured haematoma with red patches on the left side of the waist towards the pelvis. The doctor was of the opinion that the injuries had been caused by blunt objects and were consistent with the plaintiff’s account of the events. The injury to the left ear could have been inflicted on 22 March 2005, while the rest of the injuries dated from 21 March 2005.
By a decision of 26 January 2007 of a prosecutor from the Sofia Military Prosecutor’s Office, criminal proceedings were opened against [Mr G.H.] on suspicion that on 21 March 2005, at about 10 p.m., at the building of the First police directorate in Sofia, acting as a State official and in the performance of his duties, had punched and hit with his palm Anton Velinov Velev in the face, chest and back, as a result of which the latter had received haematomas in the areas of the left ear, the left part of the chest, the two sides of the back and the left part of the waist, which amounts to minor bodily injury causing pain to the victim – an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code.
On 17 May 2011 the plaintiff submitted records from his examinations as a witness in the criminal proceedings [concerning his beating] on 10 January 2007, 31 January 2007 and 26 March 2007. In them, the plaintiff describes the events of 21 March 2005, his detention and transfer to the [police directorate] together with [Mr E.Y.], his beating by police officers the same evening, his stay in the corridor, handcuffed to a grill, the next beating by an officer on 22 March 2005, again during an examination in connection with [the robbery]. In the afternoon of 22 March 2005 he participated in an identity parade, and later in the afternoon the two were brought to the Ministry of the Interior’s hospital, but Velev was not examined. After that they were brought to the Sofia Investigation Service, where they were examined by a doctor who filled in some documents. He was released on 24 March 2005, at about 5 p.m. On the next day he went to the [hospital] but the family doctor told him that she could not issue a medical certificate. On 26 March 2005 he was examined by a coroner.”
30. On the basis of the facts, as established above, the SAC reached the following conclusions:
“By Article 7 of the Constitution of the Republic of Bulgaria, the State is liable for damage caused through the unlawful actions and omissions of its bodies and officials. The provision is of a general character and its implementation is to be regulated by statute. The tort liability of the State and the municipalities is thus regulated in the States and Municipalities Responsibility for Damage Act (SMRDA), which is the applicable special statute [...] The State’s liability is strict, the victim receives damages directly from the juridical person to which the respective body or official belongs. The liability is objective as it is not necessary to show that the damage was caused through the fault of anyone. [...]
By section 1 (1) SMRDA, the State and the municipalities are liable for any damage caused to individuals and legal persons from the unlawful acts, actions or omissions of their bodies and officials, in the course of or in connection with an administrative activity. By section 7 of the SMRDA, the action is to be directed against the [bodies] whose unlawful acts, actions or omissions led to the damage caused. By section 4, the compensation is to cover any pecuniary and non-pecuniary damage, which is a direct and proximate result of the harm done. For the liability to be engaged, the following preconditions have to be met: 1) there has to be pecuniary or non-pecuniary damage – actual damage or lost profit; 2) it must have been caused by an unlawful act, action or omission of a body or an official of the State or the municipalities; 3) it has to be in the performance of an administrative activity, namely the damage has been caused by the unlawful act, action or omission of the body or official, in the course of or in connection with an administrative activity; and 4) direct and proximate causal link between the unlawful act, action or omission and the damage caused. [...]
The analysis of all written evidence in the present case leads to the unconditional conclusion that on 21 and 22 March 2005 officials of the First police directorate in Sofia caused to the plaintiff minor bodily injury. As early as 23 March 2005 the [doctor at the Sofia Investigative Service] noted a “light bruise on the left side of the chest and the back”. During the plaintiff’s examination on 26 March 2005 [the coroner] noted eight different injuries in the areas of the left ear, left part of the chest, left side of the back, left and central parts of the waist, right side of the chest down to the waist and left side of the waist towards the pelvis. Part of these injuries correspond to the one established by [the in-house doctor], at the same time the coroner himself is explicit in his conclusion that the injuries could have been caused in the way and at the time indicated by the plaintiff. The plaintiff’s description of the events of 21 and 22 March 2005 at the [police directorate’s building] is consistent, as seen from the records of his [examinations during the criminal proceedings]. During these examinations the plaintiff was interviewed as a witness, after having been notified of the criminal sanctions in the event of perjury. [...] The combined assessment of [these records] together with the remainder of the evidence shows that they all establish identical factual circumstances. In that regard, objective data are also contained in the two court decisions given in the framework of the criminal proceedings [concerning appeals of the applicant against decisions of the prosecution to discontinue the proceedings], which are obviously based on evidence collected during the investigation. It has not been disputed that the [criminal proceedings in question] were opened following a complaint by the plaintiff against unknown officers of the First police directorate in Sofia that on 21 and 22 March 2005 they had caused him a minor bodily injury, an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code. As seen from [the decision] of the Sofia Military Court of 2 April 2008, in the course of the criminal proceedings a medical expert report was commissioned, which established that Velev’s injuries had caused him pain and suffering. [...]
On the basis of all the evidence indicated above, the court concludes that on 21 and 22 March 2005 the plaintiff Anton Velinov Velev was beaten by officers of the First police directorate in Sofia where he had been detained. A full description of the injuries is contained in the [coroner’s] medical report of 26 March 2005. The testimony of the witness V. [the plaintiff’s mother] establishes that prior to his detention on 21 March 2005 the plaintiff Velev was completely healthy. The court accepts this testimony as objectively given, despite the witness’ close relation with the plaintiff, as it is logical and consistent. The testimony of [Ms V.] corresponds to the remaining evidence as well. For example, at the time of the arrest the plaintiff was searched, but nothing irregular was noted on his body or in his behaviour. Also at the time of his detention on 21 March 2005 the plaintiff filled in a declaration, where he indicated that he did not have health problems. The witness [V.] explains that on 21 March 2005 her son left for work in a good state of health, but in the evening did not come back. He came back in the evening of 24 March 2004, about 10 p.m., in a deplorable state – his left eye was swollen, he had a yellow-blue bruise on the chest. They sent him immediately to see a doctor, for which there are medical documents. [...]
The court has appointed medical experts who submitted a report, which the court accepts as competently prepared. It has not been challenged by the parties. It establishes that the injuries described in the medical documentation in the case [were such] as to cause pain and suffering. The legal definition of the offence of minor bodily injury contained in Article 130 §§ 1 and 2 of the Criminal Code covers cases of injuries to health causing pain and suffering.
For the considerations above the court finds that the preconditions for the liability of the State under section 1 of the SMRDA were met. It was shown in an unconditional manner that during his detention at the First police directorate’s building, on 21 and 22 March 2005 the plaintiff received a number of injuries, amounting to minor bodily injury within the meaning of Article 130 § 1 of the Criminal Code. Those injuries were caused by officials [of the directorate], in the course of and in connection with their activity in relation to the plaintiff’s [detention]. The fact that the [detention order] has not been quashed is irrelevant, because the plaintiff’’s beating]) that the use of force was justified, within the meaning of [the provisions of the Ministry of the Interior Act]. That is why it follows that in the course of the performance of their official activity in [detaining the applicant] officials of the First police directorate performed unlawful actions, namely caused a minor bodily injury to the plaintiff [...] The medical documentation in the case establishes a direct and proximate link between the officers’ behaviour and the damage caused to the applicant, namely injuries to his body. The considerations above show that all four preconditions for the State’s liability under section 1 of the SMRDA have been met.”
31. As to the amount of damages to be awarded, the SAC took into account the nature of the injuries caused to the applicant, as well as the particular circumstances, namely the fact that the injuries were caused by police officers, in a situation where the applicant had been particularly vulnerable as he had been deprived of his liberty. It referred once again to the testimony of the applicant’s mother, who had stated that after his release the applicant had been in “a deplorable state” and that the events “had destroyed the family”. The SAC took note, furthermore, of the amounts awarded by the domestic courts in other similar cases. Lastly, it dismissed the applicant’s argument that the compensation should be comparable to the amount awarded in the Court’s case of Ivan Vasilev v. Bulgaria, no. 48130/99, 12 April 2007 (where the Court awarded EUR 12,000 in nonpecuniary damage). It noted that the circumstances in that case had been much graver and that, in addition, unlike in Ivan Vasilev, the case before it did not concern the ineffective investigation into the applicant’s beating by the police.
32. On the basis of the above, the domestic court awarded the applicant 7,000 Bulgarian levs (BGN), the equivalent of approximately 3,570 euros (EUR), in respect of non-pecuniary damage. The applicant had initially claimed BGN 10,000.
33. The above-mentioned judgment does not appear to have been appealed against, and took effect on an unspecified date. At the beginning of 2012 the Sofia Police Directorate paid the applicant the sum awarded.
34. Article 130 § 2 of the Criminal Code of 1968 makes it an offence to cause minor bodily injury to another. Under Article 131 § 1 (2), where the injury was caused by police officers in the course of or in connection with the performance of their duties, the offence is considered aggravated. The offence is publicly prosecutable (Article 161 of the Code) and, if the injury was without detriment to the victim’s health (“без разстройство на здравето”), is punishable by up to one year’s imprisonment or probation.
35. Under Article 287 of the Criminal Code, forcing an accused to confess or provide information through coercion or other unlawful means is an offence punishable by three to ten years’ imprisonment where the perpetrator was a person in whom official powers were vested.
36. The limitation period for prosecuting offences under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Criminal Code is two years (Article 80 § 1 (4) of the Code), and the limitation period for prosecuting offences under Article 287 of the Code is ten years (Article 80 § 1 (3)). Each act of criminal prosecution carried out by the competent authorities in relation to the alleged offender interrupts the limitation period and restarts the running of time (Article 81 § 2). Such interruptions notwithstanding, the alleged offender can no longer be prosecuted if the limitation period has been exceeded by one half (Article 81 § 3), which means that an offence under Article 131 § 1 (2) taken in conjunction with Article 130 § 2 of the Code cannot be prosecuted if more than three years have elapsed since its alleged commission.
VIOLATED_ARTICLES: 3