ITEMID: 001-102358
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. On 2 April 2002 the Novaya Gazeta v Voronezhe newspaper (“the newspaper”) published an article by Mr E.P. entitled “Atomic Mayor” («Атомный мэр»). The article concerned abuses and irregularities allegedly committed by Mr S., the mayor of Novovoronezh, and by other municipal officials, including Mr B., a deputy head of administration and director of the economy and finance department, and Mr P., the chairman of the education committee. The article also mentioned certain private parties who supplied goods or performed services for the municipal authorities, including Mr F., a local businessman who did renovation work for Statefunded institutions.
5. The article quoted extensively from the Report on the Composite Audit of the Novovoronezh Town Administration, carried out by the Audit Department of the Ministry of Finance for the Voronezh Region from 13 November to 27 December 2001 (“the audit report”).
6. On 8 May 2002 Mr S., Mr B., Mr P. and Mr F. lodged an action for defamation against the applicant. They claimed that the following extracts from the article were untrue and damaging to their reputation:
“... In autumn 2001 a group of campaigners in Novovoronezh collected signatures for a vote of no confidence in Vladimir S. They collected nearly three thousand signatures ...” [paragraph 4]
“... For a long time the Novovoronezh town administration failed to transfer payments to the compulsory medical insurance fund. In the mayor's opinion, these transfers were not mandatory, but a commercial court decided otherwise. Thanks to S., in 2002 the town budget will lose a further twenty million [roubles] ...” [21]
“... Mayor S. still adheres to the ideas of Socialism and Communism; not only once did he enter the ranks of the Communist Party of the Russian Federation ... occasionally he left its ranks ...” [23]
“... [In addition to the budget, Novovoronezh has an off-budget fund. And a substantial one.] One would only wonder at the way the mayor and his faithful companion, comrade B., the head of the economy and finance department doubling as executive director of all funds, handled its assets ...
Thus, thanks to the efforts of two prominent economists, the town lost an amount comparable to nearly one half of the annual budget ...” [34, 47]
“The chairman of the education committee of the Novovoronezh administration, Mr P., did not produce any documents showing that these students came from needy or large families as he claimed ...”
What kind of needy families were these if even Mr P., the chairman of the education committee, does not know them?” [57, 58]
“Inquisitive readers would ask: why did Mr B. care so much about the military unit in the village of Boevo and the regional psychiatric hospital (let's recall the charitable contribution of 300,000 roubles made to the hospital)? And they would start looking for an answer.
Is it not in military unit no. 51205 that the son of the aforementioned official is doing his military service?
Is it not in the regional psychiatric hospital that a relation or a namesake of Mr B. has just undergone a medical examination in order to escape punishment for a serious criminal offence? ... [67-69]
And what about the honest Mayor S.? He does not know, perhaps, about the tricks of his deputy?
On the contrary. He does know and he even personally signs payment orders for the transfer of money to the State enterprise 'Voronezh regional clinical psychiatric hospital'...” [71, 72]
“The thing is that the notion of competitions (tenders) for the provision of services for State-funded organisations ceased to exist in the town long ago. If our fair and Communist-minded mayor S. liked Mr P. (they have done much business together), he could have as much work as he liked. He could supply computers at 150,000 roubles a piece and feed children in kindergartens at inflated prices ...” [87]
“... During the audit an estimate of the repair work actually performed in the town stadium was made up. The cost of the actual work done amounted to nearly 500,000 roubles. So, Mr S. and Mr F., where have the remaining 1,300,000 roubles gone? ...” [93]
7. On 10 and 11 September 2002 the Sovetskiy District Court of Voronezh (“the trial court”) took evidence from the parties. The plaintiffs produced judgments of commercial courts pursuant to which the amount of 26,927 Russian roubles (RUB) had been recovered from the Novovoronezh municipal authorities in respect of payments to the medical insurance funds. Mr S. also produced a document showing that he had been a member of the Communist Party since 1995 and never relinquished his membership.
8. The applicant had at its disposal ordinary copies of the audit report and the report of 22 November 2001 on the verification of the work done at the stadium and shooting gallery (“the stadium report”). Since ordinary copies, as opposed to certified copies, had no evidentiary value, the applicant asked the trial court to obtain the originals. The trial court refused the request because the applicant had not shown that it had attempted to obtain the originals itself.
9. Throughout October 2002 the applicant unsuccessfully sought to obtain the originals from the Audit Department of the Ministry of Finance for the Voronezh Region, the town department of the interior and the Voronezh Regional and Novovoronezh Town Prosecutors' Offices.
10. The applicant renewed its request for a court injunction requiring the relevant authorities to submit the original documents.
11. On 30 October 2002 the trial court refused the request, without citing any reasons in the text of the judgment. Mr S. withdrew his claim in the part concerning paragraph 4 of the article.
12. On the same day the trial court issued its judgment. It found that all the extracts contested by the plaintiffs had been untrue and damaging to their reputation. The trial court premised its findings on the following principles:
“In such cases, pursuant to Article 152 of the Russian Civil Code, the defendant shall prove the truthfulness of the information disseminated, whilst the plaintiff is only required to show that the defendant disseminated the information. Not only assertions, but also conjectures shall be amenable to proof. Damaging conjectures which are shown to have been unfounded in a court hearing will give rise to an apology. Reliance on rumours, hearsay, opinions of anonymous experts, competent sources, etc. as the basis for the damaging information shall not relieve the defendant from the obligation to show its truthfulness...”
13. The trial court decided that paragraphs 93 and 94 of the article implied the embezzlement of funds by Mr S. and Mr F. However, it noted that the audit report assessed the total cost of work at RUB 1,850,000 and that the defendants failed to adduce any proof of embezzlement.
14. The trial court accepted Mr S.'s opinion that statements in paragraphs 21, 23, 47, 71, 72 and 87 of the article impaired his honour, dignity and reputation. In the trial court's view, it was incorrect to say that the town “would lose a further 20 million thanks to the mayor” because the payments had been mandatory anyway and, after they had been withheld for some time, a court had ordered their recovery in the same amount. The information on Mr S.'s “discontinuous” party membership was considered untrue because he showed that he had joined the Communist Party once and had not relinquished his membership ever since. The trial court held that in paragraph 47 the author wrongly blamed Mr S. and Mr B. for stopping the funding, because the structure of off-budget funds was regulated by federal government decision. Lastly, as to paragraph 87, the trial court determined that it conveyed an impression that dishonest men, acting under the mayor's patronage, had made a profit out of kindergartens, but the authors did not produce any evidence showing the truthfulness of that allegation.
15. As regards Mr B., the trial court held that paragraphs 34, 47 and 6769 of the article were untrue and damaging for his reputation because the defendants failed to prove that Mr B. had been the executive director of “all funds”, that a relation of his, especially a criminal, had been in hiding in the psychiatric hospital or had been treated there, and that he and Mr S. had misspent the town's budget.
16. The trial court accepted Mr P.'s view that the allegations of abuses in the selection of students and his personal involvement in them (paragraphs 57 and 58) had been insulting for him.
17. The judgment stated:
“Thus, the court has concluded that the plaintiffs' claims are well-founded because the author and the editors tolerated the publication of an article that contained insulting and untrue statements... without bothering to check all the relevant facts. In accordance with the law... evidence should have been collected before the information was published and it is inappropriate to start collecting evidence after the article was published... Moreover, the plaintiffs have produced before the court a reply from the Novovoronezh prosecutor's office and a decision of the Novovoronezh police department refusing criminal prosecution in connection with the audit of certain financial matters in the education committee of Novovoronezh in 2000-2001.”
18. The trial court ordered the applicant to pay RUB 10,000 to Mr S., as well as RUB 5,000 to Mr B., Mr P. and Mr F., respectively, that is, RUB 25,000 in total, and also to publish an apology.
19. On 8 January 2003 the applicant filed a detailed appeal statement, claiming that the article had concerned an issue of public interest and that the plaintiffs, being “public figures” and State servants, should have been more tolerant to criticism than ordinary citizens. The article was largely founded on the audit report and the district court did not afford the applicant an opportunity to prove the truthfulness of any statements of fact as it refused their request to obtain original documents. Moreover, the trial court ordered the applicant to refute value judgments. The appeal statement read, in so far as relevant, as follows:
“As regards the first document [...], [the trial court] referred to the fact that there was no need to request it because the case file contained a decision by the senior police officer of the Novovoronezh GOVD [main department of the interior] to institute a criminal investigation into the facts mentioned in the report by the KRU [the Audit Department].
As regards the second document [...], the [trial] court referred to the fact that [it had been stated] in the reply by the Novovoronezh GOVD to the editorial board's request to provide the document that the GOVD did not have the document in question as it had been forwarded to the Novovoronezh prosecutor's office, and that there was therefore no need to request it from the GOVD.”
20. On 6 February 2003 the Voronezh Regional Court upheld the judgment of 30 October 2002. It held that the applicant's arguments that the article had contained value judgments rather than statements of fact was “unsubstantiated”. The court reasoned, in so far as relevant, as follows:
“The dissemination of the information that the plaintiffs seek to refute was proven before the [trial] court and has not been disputed by the respondent. Accordingly the newspaper was obliged to submit evidence before the [trial] court to prove the truthfulness of the information in question.
However, no such evidence was presented before the [trial] court.”
21. On 20 June 2003 the applicant transferred RUB 25,000 to the bank account of the bailiffs' service in execution of the judgment of 30 October 2002.
22. The applicant published an apology in the 11 – 17 July 2003 issue of the newspaper retracting the information contained in the article.
23. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media.
24. Article 152 of the Civil Code of the Russian Federation of 30 November 1994 provides that an individual may seize a court with a request for the rectification of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. The rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities.
25. Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992, as amended on 25 April 1995 (in force at the material time) provided in its Article 2 that to be considered damaging the information (сведения) had to be untrue and contain statements about an individual's or a legal entity's breach of the laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of information was understood as the publication of information or its broadcasting, its inclusion in professional references, public addresses, applications to State officials, as well as its communication in other forms, including orally, to at least one other person. Article 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the information in question had been disseminated by the defendant. The defendant was to prove that the disseminated information was true and accurate.
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-105167
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF GOH v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant is a Singaporean citizen, born in 1958 and residing in Romania. He is currently serving a prison sentence in Ploieşti Prison.
6. On 8 March 2001, a robbery took place in the flat of a Chinese couple, H.Z.Y. and Y.X. The two victims reported the incident to the police. They indicated that three men had entered their flat, one of them threatening H.Z.Y. with a knife. The same person had forced H.Z.Y., under the threat of knife, to write down a receipt by which he recognised that he owed a debt of 5,000 US Dollars to another person.
7. On 15 March 2001, the applicant and H.Z.Y. agreed to meet in a restaurant in order to collect payment of part of the debt. After the applicant had received from H.Z.Y. an envelope with money, police officers had intervened and had arrested him. At the same time, the police officers apprehended F.Y., who had been sitting outside the restaurant closely following the movements of H.Z.Y. and the applicant.
On the same date, the police seized from the flats of the two accused items related to the robbery, the knife used to threaten the victims, a wallet and residence permit belonging to H.Z.Y, as well as the stolen electronic equipment.
8. In one of the first statements given to the investigative authorities, both accused denied the robbery.
9. After the prosecutor issued an indictment against the applicant on charges of robbery and blackmail and against F.Y on charges of robbery, the case was referred to the Bucharest District Court (“the District Court”).
10. On 5 October 2001, the District Court heard from the victims, two witnesses who had attended the search of the defendants’ flats, the applicant’s lawyer and both accused. F.Y. admitted that he had committed the robbery, but indicated that the applicant had not been involved. The applicant’s request to have three additional witnesses heard (persons with whom he was sharing his flat) was denied, as the court considered that their statements would be made pro causa.
11. By a judgment of 9 October 2001, the District Court found the applicant guilty of both charges and sentenced him to fifteen years’ imprisonment. It considered that F.Y.’s new statement did not corroborate the other evidence. It noted that the applicant had not been consistent in his statements and that there were contradictions between the submissions of the two accused concerning how they knew each other and why they had gone to the restaurant together on 15 March 2001. It considered that F.Y.’s new statement could be explained by the high standing that the applicant had within the Chinese community, as person in charge of obtaining the extension of residence permits and recovery of monetary debts.
The District Court applied the maximum sentence in the applicant’s case, relying on the fact that during the trial he had displayed a violent attitude, threatening the victims in Chinese while they were testifying and taking into account his criminal record and the circumstances in which the acts had been committed.
12. The applicant and F.Y. lodged appeals, the former alleging that he was innocent and the latter asking for a milder sentence.
13. On 13 May 2002, upon the applicant’s request, H.X.P., a new witness, testified in front of the County Court, claiming that he had been involved in the robbery and that the applicant had been the victim of a trap.
14. The County Court dismissed both appeals by a decision of 20 May 2002. After reviewing all of the evidence in the case file, it concluded that H.X.P.’s statement was untrue, as it had not been corroborated by the other evidence in the file.
15. The applicant lodged an appeal on points of law, alleging that he was innocent and that he had not committed the alleged crimes. The Bucharest Court of Appeal (“the Court of Appeal”) denied the request to have H.X.P. called as a witness once more. By a final decision delivered on 3 September 2002, the appellate court upheld the decisions of the lower courts. After reviewing all the evidence available in the case file, including the statement made by H.X.P., the Court of Appeal concluded that the evidence pointed to the applicant’s guilt and that H.X.P.’s statement had not been corroborated by the rest of evidence.
16. After his final conviction, the applicant lodged an extraordinary appeal, which was dismissed by a final decision of the Court of Appeal on 12 October 2004.
17. The applicant has been in prison since the day of his arrest on 15 March 2001. He has been held in a number of different detention centres. No information is available in respect of his place of detention before 13 June 2001. From the latter date until 20 July 2001 he was detained in Jilava Prison. On the latter date he was transferred to Rahova Prison, where he was held until 26 January 2009. He was then transferred to Margineni Prison. On 19 June 2009 he was transferred from that prison to Giurgiu Prison. By letter of 4 January 2011, he informed the Court that he was transferred to Ploiesti Prison.
18. In respect of the three establishments, the applicant alleged that he had been kept in overcrowded cells, with poor hygiene conditions. In addition, he described the situation in each of the establishments, as detailed further below.
19. The applicant complains that during the months of June and July 2001, owing to extremely hot weather, the conditions in prison had been unbearable: there had been forty to fifty people in one cell; two to three prisoners had shared the same bed; he had had to share a bed with another prisoner who had had many wounds on his skin; the water had been of very poor quality, having been of a yellow colour, smelling and containing worms. Sometimes, there had been no water – either for drinking or for the toilet. The food had also been of very poor quality.
20. On 20 July 2001 the applicant was transferred to Rahova Prison.
21. Here, in cells originally planned for ten prisoners (approximately 6 m in length and 3 m wide), there had sometimes been between twelve and fourteen prisoners. The quality of food had been poor.
22. From 1 January 2007 the prisoners had no longer been allowed to receive food by post and the only way of obtaining food had been to do so from the prison shop, where the prices had been higher than normal market prices. The applicant further alleged that the food normally served had not included meat.
23. The applicant complained that money had often been stolen from letters sent to prisoners and that using the bank transfer system had been rather complicated and had taken a considerable time.
24. He alleged that between 2001 and 2006 he had been subjected to great anxiety and stress because of abuses on the part of (masked) special forces, who had stormed the cells, beaten the prisoners and stolen items belonging to them.
25. The applicant complained that in Mărgineni Prison, he had shared a cell with a surface area of 48 sq. m with twenty-seven other prisoners.
26. The Government provided official information, submitted by the National Prison Administration (“NPA”), concerning the size of and facilities in the cells that the applicant had occupied during his detention, as well as the general detention conditions in the three establishments.
27. In Jilava Prison, the applicant had been placed in cell no. 512, which had had a surface area of 42.84 sq. m. The average number of prisoners occupying the cell during the month of June 2001 had been forty-five, and during the month of July, forty-nine. The cell had been equipped with two squat toilets connected to the water network and separated from the rest of the room by a wall. Fresh air had been able to come in through the windows in the cell and toilet. A laboratory analysis of water quality had not indicated that the water had presented the characteristics described by the applicant. The prisoners had been allowed to take one hot shower per week in communal bathrooms available in each section of the prison, where there had been between nineteen and twenty-three showers available. The applicant had been allowed to walk outside the cell for thirty minutes each day. The official documents did not give the exact number of bunks per cell.
28. In Rahova Prison, the applicant had been placed in cells with an average size of 21 sq. m and which had had ten bunk beds for a maximum of ten detainees. The cells had also included a table, benches, a TV stand, a wardrobe, shelves and a food storage space. A bathroom measuring 8.26 sq. m with cold water had been attached to the cell, separated from the rest of the room by a wall and consisting of a shower, two sinks and a toilet. Hot water had been available twice per week, between midday and 2 p.m. and from 5 p.m. to 7 p.m. Each cell had had a double window, while the bathroom and the food storage room had each had one window.
The detainees had been allowed to walk outside for one to three hours per day and, upon their request, they had been given access to sports fields twice a week.
The prison had ensured detainees’ right to purchase different items from a shop operated by a company and located inside the prison. The prices had been regularly checked to ensure that they stayed within the average prices charged by other companies nearby the prison.
Although the applicant had had the right to take part in sports or recreational activities, he had not joined in those activities.
29. As regards the applicant’s detention in Mărgineni Prison, the applicant had been placed in cell no. 14, which had had a total surface area of 42.12 sq.m. The cell had included twenty-seven bunk beds and the number of detainees had never exceeded the number of available beds. The average number of inmates in the cell had been twenty-five during the months of February, March and May 2009 and twenty-four during April 2009. The cell had also been equipped with a few tables, a TV set belonging to the prison and storage spaces for dishes and food.
A bathroom measuring 7 sq. m had been attached to the cell, including two toilets separated by a wall, a sink and a shower. Cold running water had been available and it had been of drinking quality.
A schedule approved by the penitentiary authorities had ensured the availability of a shower twice a week.
The applicant had been able to take part in outdoor sport activities for one hour twice a week until 31 March 2009 and for two hours once a week starting from 1 April 2009. The applicant had also been able to walk outside the cell in one of the seven prison courtyards according to a schedule approved by the penitentiary authorities.
30. In respect of the three prisons, the Government indicated that the cells had had natural light and electricity. The inmates had been responsible for cleaning their cells, using products put at their disposal by the prison administration. Pest control measures and insecticide treatments had been carried out regularly.
The quality of drinking water had been regularly assessed. Food had been prepared on a daily basis. The quality of the raw materials used for the preparation of meals had been certified by reports attached to the food provided by different suppliers.
31. The applicant alleged that he did not receive adequate medical treatment for his various medical conditions and he did not receive any treatment for anaemia. He alleged that in the period 2005-2007, he made numerous requests to receive a dental prosthesis, which had been ignored. In December 2007, he received a prosthesis, which according to him was damaged.
32. From the information submitted to the case-file by the Government, based on documents furnished by NPA, it appears that the applicant received and currently still receives treatment for his various medical conditions. None of the medical records indicates that the applicant suffers from anaemia. In respect of the dental treatment, the medical records indicate that a dental prosthesis has been prepared for him and that between the date when he received it (27 December 2007) and his transfer to Margineni prison on 26 January 2009, he did not report to the medical staff any complaint regarding its quality.
33. The relevant provisions of Law no. 23/1969 on the execution of sentences are described in paragraphs 23 and 25 of the Năstase-Silivestru v. Romania, (no. 74785/01, 4 October 2007).
34. The Government’s Emergency Ordinance no. 56 of 27 June 2003 (“Ordinance no. 56/2003”) regarding the rights of prisoners states, in Article 3, that prisoners have the right to bring legal proceedings before a court of first instance concerning the implementing measures taken by the prison authorities in connection with their rights. Ordinance no. 56/2003 has been repealed and replaced by Law no. 275 of 20 July 2006, which has restated the content of Article 3 mentioned above in Article 38, which provides that a judge shall have jurisdiction over complaints by convicted prisoners against measures taken by prison authorities (see also Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008).
35. The Government submitted to the Court copies of judicial decisions delivered by the domestic courts concerning the application of Ordinance no. 56/2003 and Law no. 275/2006. The decisions mainly concern complaints lodged by prisoners in respect of disciplinary sanctions imposed on them by prison authorities, alleged lack of adequate medical treatment, breaches of their rights to receive visits, to correspondence, to confidentiality of telephone conversations, to have walks outside their cell, to medical assistance during transport to a courthouse, and the right to be placed in a non-smoking cell. In one decision of 9 March 2006, a domestic court noted that the cells in the relevant prison had been designed to accommodate a large number of inmates and only the prison infirmary had been able to accommodate a lower number of inmates. Therefore, as the applicant in that case had not had any medical need to be placed in the infirmary, he was required to remain in a large cell. In another decision of 16 June 2006, a domestic court dismissed a prisoner’s complaint concerning overcrowded cells and the fact of having to share a bed with another person. The court’s reasoning was that the claimant’s state of health had actually improved since he had been placed in detention, he had received adequate medical treatment and therefore that none of his rights had been violated.
36. The relevant findings and recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania (no. 22088/04, §§ 73-76, 6 December 2007) and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009).
37. The CPT report published on 11 December 2008, following a visit to different police detention facilities and prisons in Romania (including Jilava Prison) conducted from 8 to 19 June 2006, indicated overcrowding as a persistent problem. The same report concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited, the conditions of detention could be qualified as inhuman and degrading.
In the same report, the CPT declared itself gravely concerned by the fact that a lack of beds remained a constant problem, not only in the establishments visited but at national level, and that this had remained the case since its first visit to Romania in 1999. The CPT also welcomed the changes introduced in domestic legislation providing for personal space of 4 sq. m for each prisoner. The CPT therefore recommended that the Romanian authorities take the necessary measures to ensure compliance with this requirement, as well as to ensure that each detainee has his or her own bed.
38. There is no CPT report concerning Rahova Prison. However, a Romanian NGO, APADOR-CH (Association for the Defence of Human Rights in Romania – the Helsinki Committee) visited this establishment on 13 February 2009. The report prepared following this visit indicated that, based on the information submitted by the authorities, the average personal space for prisoners was 2.77 sq. m. The overcrowding was obvious when visiting individual cells: one of the cells visited, measuring 18 sq. m, had accommodated eleven prisoners, even though only ten beds had been available. As regards the prison’s food, the report indicated that only one detainee had complained about its quality and that many prisoners had preferred to eat the food they received from home or that they bought from the shop.
VIOLATED_ARTICLES: 3


ITEMID: 001-58212
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 12;No violation of Art. 14+8;Not necessary to examine Art. 13
JUDGES: John Freeland;N. Valticos
TEXT: 12. The first applicant, Miss Kristina Sheffield, is a British citizen born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender reassignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved.
13. In 1986 the first applicant began treatment at a gender identity clinic in London and, on a date unspecified, successfully underwent sex reassignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence.
14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex.
15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out. Following the divorce, the applicant’s former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child’s interests. The applicant has not seen her daughter since then, a period of some twelve years.
16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social- security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States embassy in London.
17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of 2,000 pounds for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate.
18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex-change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry.
19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male.
She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction.
20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State.
21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Netherlands citizenship by naturalisation in September 1993.
The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female.
22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam.
23. On 26 June1992, following earlier refusals, she applied to the British consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Netherlands courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British consulate issued a new passport to the applicant recording her new name and her sex as female.
24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate.
25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage whether that marriage “took place in the Netherlands or elsewhere”.
26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll.
27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen’s Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.
Under section 11(b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Mr Justice Ormrod).
28. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts.
29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett.
30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation.
32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male-to-female transsexual will accordingly only be entitled to a State pension at the State retirement age of 65 and not the age of 60 which is applicable to women.
33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that
“... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22)
34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports).
35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender reassignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person’s birth certificate in one form or another to reflect the re-assigned sex of that person.
NON_VIOLATED_ARTICLES: 12
14
8


ITEMID: 001-96114
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KOKTYSH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Conditional) (Belarus);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant, who was born in 1980, is a Belarusian youth activist and musician. He is currently detained in the Pre-Trial Detention Centre no. 15 (hereinafter, “the SIZO”) in Simferopol (Сімферопольський слідчий ізолятор), Ukraine.
6. In 2001 the applicant and R. were charged with the murder (under Article 139 § 2 of the Belarusian Criminal Code) and robbery of M. According to the above Article, the death penalty is foreseen, inter alia, as a sanction for murder.
7. On 7 December 2001 the Brestskiy Regional Court of Belarus acquitted the applicant and R. In particular, the court emphasised that during their interrogations the applicant and R. had been subjected to physical and psychological pressure and had been forced to confess, and therefore their confessions during the pre-trial investigation could not be taken into consideration.
8. On 1 February 2002 the Supreme Court of Belarus upheld this decision.
9. On 18 May 2002 these decisions were quashed by the Presidium of the Supreme Court of Belarus under the extraordinary review procedure upon an application (“protest”) lodged by a prosecutor, and the criminal proceedings were resumed.
10. In June 2002 the applicant moved to Ukraine, where he was registered by the Zhytomyr passport service. He travelled several times to Poland and married in 2003. Therefore, according to the applicant, he has not been hiding from justice.
11. On 28 June 2002 the Brestskiy Regional Court stayed the criminal proceedings since the applicant’s whereabouts were unknown.
12. On 9 July 2002 the Brestskiy Regional Prosecutor decided to search for the applicant.
13. On an unspecified date an international search warrant for the applicant was issued.
14. On 25 June 2007 the applicant was arrested in Sevastopol, Ukraine. The applicant stated that during his arrest the policemen had fired several shots in order to intimidate him and that he had been subjected to physical and psychological pressure.
15. On 27 June 2007 the Balaklava District Court of Sevastopol ordered the applicant’s detention for forty days with a view to his extradition to Belarus.
16. On 9 July 2007 the General Prosecutor’s Office of Belarus requested the General Prosecutor’s Office of Ukraine (hereinafter, “the GPO”) to extradite the applicant. In its request the General Prosecutor’s Office of Belarus indicated that “Koktysh I.G. would be tried only for the crimes he was extradited for, and he would not be sentenced to the death penalty”.
17. On 3 August 2007 the Balaklava Local Court decided that the applicant should remain in detention pending extradition.
18. On 10 October 2007, under Rule 39 of the Rules of Court, the President of the Court’s Fifth Section indicated to the Government of Ukraine that the applicant should not be extradited to Belarus.
19. On 15 October 2007 the General Prosecutor’s Office of Belarus informed the GPO that in the event of the applicant’s extradition he would not be tortured, ill-treated or discriminated against and would be given a fair trial. If necessary, he would be provided with medical assistance and treatment.
20. On 19 May 2008 the Balaklava District Court informed the applicant that his request for release could not be considered as the current legislation did not foresee the possibility of challenging detention pending extradition.
21. On 3 June and 7 July 2009 the Balaklava District Court rejected the applicant’s further requests for release since the law in force did not foresee the possibility of replacing his detention pending extradition by another non-custodial preventive measure.
22. From 26 June to 5 July 2007 the applicant was detained in the Sevastopol Temporary Detention Centre in cell no. 1 (Севастопольський ізолятор тимчасового утримання) (hereinafter, “the ITT”). He submitted that in his cell, which measured 4 x 8 metres, around 20 persons had been detained, while it had been equipped with only two sleeping places. There were no sheets, pillows or blankets but only a couple of dirty mattresses. The cell was very dirty, without ventilation or proper lighting, and infested with different insects. Nearly all of the detainees smoked and this caused the applicant intense suffering since he has bronchial asthma. The ITT did not contain a shower and the detainees could not go for a walk. The applicant stated that the daily food had been limited to a piece of bread, a plate of poor-quality soup and water. The applicant was not provided with any medical assistance in spite of suffering from asthma. On 2-5 August 2007 the applicant was detained in cell no. 2 with similar conditions of detention.
23. From 6 July 2007 to date the applicant has been detained in the SIZO. The applicant submitted that during his transportation from the ITT to the SIZO he had been placed in a special van together with 12 other people while there had been space available for only 6. The temperature in the van reached 600C and there was neither drinking water nor ventilation.
24. In the SIZO, according to the applicant, he is detained in a 2 x 4 metre cell together with 9 other detainees. The cell has no ventilation or sufficient lighting and all of the detainees smoke apart from the applicant. The detainees can shower only once a week. The applicant stated that the medical assistance he received in the SIZO was inadequate.
25. On 25 June 2007 the applicant arrived at the ITT. He was questioned about his state of health by the officer on duty but the applicant did not complain about his health problems. During his stay in the ITT (25 June-5 July 2007 and 2-5 August 2007) the applicant did not complain about his health problems either.
26. From 26 June 2007 until 5 July 2007 the applicant was detained in cell no. 1. The cell measured 19.3 sq. m. At the material time from 16 to 21 persons were detained there.
27. From 2 August 2007 until 5 August 2007 the applicant was detained in cell no. 2, which measured 17.4 sq. m. 11 other persons were detained at that time together with the applicant.
28. Every cell was equipped with a WC and a wash-basin. The detainees were provided with bed sheets and were served hot food three times a day. The cells are regularly cleaned and disinfected. The detainees take a hot shower at the week-end or during the week if they so wish.
29. The ITT has a ventilation system which functions non-stop. The detainees also have a daily one-hour walk in two specially equipped yards.
30. The cells are equipped with two electric light-bulbs and the detainees also have access to daylight.
31. During the applicant’s stay in the SIZO, since 5 July 2007, he has been detained in three different cells (nos. 57, 60 and 68), which measure between 12.4 sq. m and 13.2 sq. m. Together with him, from 4 to 9 persons have been detained during different periods of time.
32. The cells are equipped with the necessary number of sleeping places, sufficient electric and natural light, separated WCs, wash basins, tables and chairs. There is ventilation and the conditions of the applicant’s detention have complied with the sanitary standards. The applicant has been able to take a shower once a week.
33. On the day of his arrival the applicant was examined in the SIZO hospital wing and diagnosed with asthma. During his stay in the SIZO the applicant has been further examined and treated on numerous occasions.
34. On 5 July the applicant was transported from the ITT to the SIZO and on 2 August 2007 he was returned to the ITT. On 5 August 2007 he was again taken to the SIZO.
35. Specially equipped vehicles and railway carriages were used for the transportation. Every vehicle can carry up to 22 persons and every railway carriage up to 80. The special police forces in charge of the transportation of prisoners transported the applicant in compliance with the requirements of the national legislation.
36. The relevant international and domestic law and practice in respect of the applicant’s extradition are summarised in the Soldatenko v. Ukraine (no. 2440/07, §§ 21-29 and § 31, 23 October 2008) and Svetlorusov v. Ukraine (no. 2929/05, §§ 32-34, 12 March 2009) judgments.
37. Under Article 11, detainees must be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 sq. m.
“... 2. Such abuses take different forms, including:
2.4. the continued use of the death penalty and the particularly cruel, secretive method of execution by gunshot, without informing the condemned persons themselves or their families until the last moment. Belarus is the last country on the European continent that still implements the death penalty. The existence of the death penalty excludes the extradition to Belarus of any person accused of a capital offence by member states of the Council of Europe...”
“...17. The Assembly regrets that capital executions can still be carried out in Belarus, despite the reduction of the categories of crimes for which they can be inflicted, a decrease in the number of death sentences handed down in such cases and the fact that no executions have been carried out since October 2008 according to official statements. The Assembly recalls that, in the current Constitution, the death penalty is considered as a transitional measure and that no legal impediment prevents either the President or the Parliament from introducing a moratorium on executions...”
“...The Special Rapporteur regrets that the Government of Belarus, in 2006 as in 2004 and 2005, has not responded favourably to his request to visit the country and has in general not cooperated with him in the fulfilment of his mandate...
...13. Since his last report, the Special Rapporteur has remained concerned that Belarus is the last country in Europe to apply the death penalty. The situation in the country is still characterized by harsh conditions of pre-trial detention, the practice of torture and other inhuman treatment, and excessive use of force by the police...”
“...The situation of human rights in Belarus in 2007 continued to significantly deteriorate, as documented in the reports of the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and the report of the Special Rapporteur on the situation of human rights in Belarus, which found that systematic violations of human rights continue to take place in Belarus...
...1. [The Assembly] expresses deep concern:
(a) About the continued use of the criminal justice system to silence political opposition and human rights defenders, including through arbitrary detention, lack of due process and closed political trials of leading opposition figures and human rights defenders;
(b) About the failure of the Government of Belarus to cooperate fully with all the mechanisms of the Human Rights Council, in particular with the Special Rapporteurs on the situation of human rights in Belarus, while noting the serious concern relating to the continued and systematic violations of human rights in Belarus...”
38. The Country Report on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2008, released on 25 February 2009, noted with respect to Belarus:
“The government’s human rights record remained very poor as government authorities continued to commit frequent serious abuses...
...Prison conditions remained extremely poor, and reports of abuse of prisoners and detainees continued. Arbitrary arrests, detentions, and imprisonment of citizens for political reasons, criticizing officials, or for participating in demonstrations also continued...
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices; however, the Belarusian Committee for State Security (BKGB), the Special Purpose Detachment riot police (OMON), and other special forces continued to beat detainees and demonstrators...
...Police also beat individuals during arrests and in detention for organizing or participating in demonstrations or other opposition activities...
...On September 2, 2008, the International Federation of Human Rights (FIDH) in cooperation with the domestic human rights NGO "Vyasna" released a joint report, Conditions of Detention in Belarus, based on interviews with more than 30 persons. The report noted "substantial evidence" of the use of torture and mistreatment of suspects during criminal and administrative investigations...
e. Denial of Fair Public Trial
The constitution provides for an independent judiciary; however, the government did not respect judicial independence in practice. Corruption, inefficiency, and political interference were prevalent in the judiciary.
There was evidence that prosecutors and courts convicted individuals on false and politically motivated charges, and that executive and local authorities dictated the outcomes of trials...”
“...Death penalty
...According to media reports, four people were executed during the year...
...In December, Belarus abstained on a UN General Assembly resolution calling for a worldwide moratorium on executions...”
39. The relevant extracts from the European Prison Rules read as follows:
“4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
...
10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
...
18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
...
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.
18.4 National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
...
19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4 Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
...
21. Every prisoner shall be provided with a separate bed and separate and appropriate bedding, which shall be kept in good order and changed often enough to ensure its cleanliness.
22.1 Prisoners shall be provided with a nutritious diet that takes into account their age, health, physical condition, religion, culture and the nature of their work.
22.2 The requirements of a nutritious diet, including its minimum energy and protein content, shall be prescribed in national law.
22.3 Food shall be prepared and served hygienically.
22.4 There shall be three meals a day with reasonable intervals between them.
...
27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
...
32.2 The transport of prisoners in conveyances with inadequate ventilation or light, or which would subject them in any way to unnecessary physical hardship or indignity, shall be prohibited.”
40. Relevant extracts from the reports of the Committee for the Prevention of Torture following the Committee’s visits to Ukraine in 1998 – 2002 can be found in the judgment in the case of Yakovenko v. Ukraine, (no. 15825/06, §§ 56-61).
41. On 14 January 2004 the Ukrainian Parliament Commissioner for Human Rights, after her visit to the penitentiary institutions of the Autonomous Republic of Crimea (hereinafter, “the ARC”), in her address to the members of the Verkhovna Rada of the ARC, published on the Ukrainian Parliament Commissioner’s Internet site, mentioned the overcrowding in the Simferopol SIZO, lack of daylight in the cells, the absence of outside walks and insufficient nutrition. In the majority of the ITTs visited by her, the detainees were provided with food only once a day. In the Sevastopol ITT there were 206 persons detained while there were only 82 places.
42. On 11 August 2008 the press service of the Ukrainian Parliament Commissioner for Human Rights published a press release on the Commissioner’s further visit to the penitentiary institutions of the ARC. The Sevastopol ITT was described as the worst. The cells were dirty, without sufficient daylight and ventilation, and outside walks were not regular. The detainees were not provided with mattresses, covers or bed linen. The cells were overcrowded and the detainees slept in turns. The conditions of transportation between the Sevastopol ITT and the Simferopol SIZO were unbearable. In particular, on 9 June 2008, 34 detainees were taken to the Sevastopol ITT but after spending 6 hours locked in the vehicle were sent back to the Simferopol SIZO because of overcrowding in the ITT. The trip lasted 14 hours and the detainees were practically not allowed to use the toilet and were not provided with water or food.
VIOLATED_ARTICLES: 13
3
5


ITEMID: 001-5550
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SAUKAITIS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Lithuanian national, born in 1978 and living in Klaipėda. He is represented before the Court by Mr A. Petrauskas, a lawyer practising in Vilnius.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was suspected of robbery. The complainant in the proceedings was a taxi driver, who reported to the police that in the late evening of 18 November 1996 two armed men had appropriated his car and other belongings by threats of force. On 29 May 1997 the Klaipėda Regional Court convicted the applicant of robbery on the basis of the statements by the complainant and an anonymous witness M. The Regional Court sentenced the applicant to 7 years’ imprisonment. His property was confiscated.
On 20 August 1997 the Court of Appeal dismissed the applicant’s appeal. On 11 November 1997 the Supreme Court rejected the applicant’s cassation appeal.
In April 1998 certain third persons, while being interviewed in the context of another criminal case, told the police that they had committed the robbery of 18 November 1996. On 6 October 1998 the Supreme Court quashed the applicant’s conviction on the ground of newly established facts. The court also ruled that the decisions confirming the applicant’s guilt raised “serious doubts as [the complainant’s] statements had been inconsistent … and the testimony of the anonymous witness M had not been assessed carefully”, whereas the applicant’s guilt had been “based essentially on the above evidence”. The Supreme Court returned the case to the prosecution for pre-trial investigation.
On 29 January 1999 a prosecutor discontinued the case against the applicant because of the absence of evidence. By a letter of 15 April 1999 the prosecutor informed the applicant that the case had been discontinued.
As a result of the above proceedings, the applicant has spent more than 20 months in prison.
He brought no action for damages in connection with his conviction.
B. Relevant domestic law
Article 4 § 1 (1) of the Criminal Damages Act 1997 (Žalos, padarytos neteisėtais kvotos, tardymo, prokuratūros ir teismo veiksmais, atlyginimo įstatymas) provides that a person can claim damages in connection with errors by law enforcement authorities where he has been acquitted, or his conviction has been quashed and criminal proceedings discontinued.
Under Article 5 of the Act, in order to obtain damages, a person must sue the Ministry of Justice in accordance with the procedure established by the Act.


ITEMID: 001-77802
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VLADIMIR NIKITIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1936 and lives in the town of Vorkuta in the Komi Republic of the Russian Federation.
5. On 8 August 1994 the applicant sued his employer, a mining company, for payment of royalties. The first hearing, fixed for 25 August 1994, was adjourned due to the applicant's absence. The following hearings of 9 December 1994 and 20 January 1995 were also postponed upon his requests.
6. On 22 February 1995 the Vorkuta Town Court found for the applicant. However, that judgment was quashed on appeal on 30 March 1995 and re-examination was ordered. The applicant amended his claims.
7. On 11 March 1996 the Town Court ordered an expert study. The proceedings were stayed until January 1997 when the Town Court received the expert report. In April 1997 another expert study was ordered. The applicant again amended his claims.
8. On 16 May 1997 the Vorkuta Town Court dismissed the action. That judgment was quashed on appeal on 25 August 1997 and the case was remitted for a fresh examination.
9. A judge was assigned to the case in December 1997 and the first hearing was listed for 13 November 1998. However, that hearing was adjourned because the parties defaulted. The following hearing of 18 October 1999 was postponed upon the parties' request for provision of additional evidence.
10. On 22 October 1999 the Town Court ordered an expert examination. The proceedings were resumed on 15 March 2000 after the expert report had been submitted to the Town Court.
11. Two hearings, fixed between March and 17 November 2000, were adjourned because the defendant defaulted and the court wanted to call an expert.
12. On 17 November 2000 the Vorkuta Town Court ordered an expert study. The proceedings were resumed a week later.
13. On 19 February 2001 the Vorkuta Town Court found for the applicant. The judgment was quashed on appeal and the case was remitted for re-examination on 21 May 2001.
14. A judge was assigned to the case on 22 August 2001. In September and November 2001 the presiding judge inquired several expert organisations about a possibility to perform expert studies. A hearing was fixed for 17 January 2002. However, it was adjourned for provision of additional evidence by the defendant. The following hearing was fixed for 26 March 2002.
15. On 27 March 2002 the Vorkuta Town Court ordered another expert examination. The applicant appealed against that decision, but on 20 May 2002 his appeal was dismissed.
16. In May 2002 the Town Court sent the case-file to an expert bureau. A month later the experts asked the Town Court for additional documents. The documents were submitted to the experts in August 2002. In October and November 2002 the experts inquired the Town Court about the fees for their work.
17. In February 2003 the Town Court asked the Judicial Department of the Komi Republic to bear the costs of the expert examination. It appears that the expert fees were paid in July 2003.
18. In August and October 2003 the Vorkuta Town Court inquired the experts about the progress in their work. On 1 April 2004 the experts informed the Town Court that the expert report had been submitted to it on 19 September 2002.
19. In May 2004 the experts once again sent the report to the Town Court. The report contained certain procedural defects and the Town Court asked for corrections. In July and September 2004 the Town Court repeated its request. No response followed.
20. From 29 January to 28 April 2005 the applicant lived in Ukraine.
21. On 11 February 2005 the Town Court received the corrected expert report. Three days later the proceedings were resumed and a hearing was fixed for 10 March 2005. The parties were summoned. The summonses to the applicant were sent to all known addresses, including one in Ukraine.
22. The hearing of 10 March 2005 was postponed because the applicant defaulted. The advice of receipt concerning the applicant's summonses returned from Ukraine with the note indicating that the applicant had refused to accept them. The following hearing was fixed for 4 April 2005. The Town Court sent summonses to all known addresses of the applicant, including one in Ukraine. It also unsuccessfully attempted to summon the applicant by phone.
23. On 4 April 2005 the Vorkuta Town Court disallowed the applicant's action because he had failed to attend two hearings and had not notified of the reasons for his absence.
24. The applicant applied to the Town Court for annulment of the decision of 4 April 2005. On 20 October 2005 the Vorkuta Town Court dismissed the request. The court held that the applicant had been properly summoned. Moreover, there was evidence that he had refused to accept the summonses for the hearing of 10 March 2005. The applicant did not appeal against the decision of 20 October 2005 to the Supreme Court of the Komi Republic.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76710
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KUKHARCHUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13 and P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 5. The applicant was born in 1958 and lives in Kyiv, Ukraine.
6. In 1994 Mrs S. obtained a loan from the Azhio Bank. In 1995, due to the failure of Mrs S. to repay the loan, the bank sold her flat to Mr S. The latter sold the flat to Mrs Sb., who further sold it to Mr G. On 22 January 1997 the applicant purchased the flat from Mr G.
7. In March 1997 the applicant instituted proceedings in the Vatutinskyy District Court of Kyiv (“the Vatutinskyy Court”), seeking the eviction of Mrs S. and her minor child from the flat. Mrs S. lodged a counter-claim and requested the court to invalidate all the sales contracts concerning the flat. The parties to these contracts were summoned to participate in the proceedings.
8. On 18 December 1997 the court found for the applicant and ordered the eviction of Mrs S. together with her child.
9. On 25 February 1998 the defendant requested an extension for lodging an appeal in cassation. On 2 March 1998 the Vatutinskyy Court granted the extension requested on the ground that she had missed the initial deadline through no fault of her own.
10. On 1 April 1998 the Kyiv City Court (“the Kyiv Court”) rejected the defendant’s appeal in cassation against the decision of 18 December 1997.
11. On 13 April 1999, the Deputy General Prosecutor of Ukraine, following the complaint of the defendant, lodged a request for supervisory review (protest) of the applicant’s case with the Presidium of the Kyiv Court. On 26 April 1999 the Presidium allowed the request, quashed the decisions of 18 December 1997 and 1 April 1998, and remitted the case for a fresh consideration. It found that the lower courts misinterpreted the facts and law in the case.
12. On 23 November 1999 the Vatutinskyy Court found for the applicant.
13. On 24 December 1999 the defendant requested an extension for lodging her appeal in cassation. On 5 January 2000 the Vatutinskyy Court granted the extension requested. It found that ground that the defendant had missed the initial deadline through no fault of her own.
14. On 23 February 2000 the Kyiv Court quashed the decision of 23 November 1999 and remitted the case for a fresh consideration.
15. On 9 February 2001 the Vatutinskyy Court found against the applicant.
16. On 23 February 2001 the applicant appealed in cassation against the decision of 9 February 2001. On 12 March 2001 the Vatutinskyy Court granted the applicant an extension for lodging his appeal, as he had not been informed about the decision of 9 February 2001 in due time.
17. On 11 April 2001 the Kyiv Court quashed the decision of 9 February 2001 and remitted the case for a fresh consideration on the ground that the first instance court had considered the case in the absence of Messrs G. and S., Mrs Sb., and the third parties to the proceedings, Mrs A. and Mr K., who had not been informed about the hearings.
18. By the decisions of 28 August and 26 September 2001, the Vatutinskyy Court discontinued the consideration of the applicant’s claims and the counter-claim of the defendant because of their failure to attend the hearings on the same dates.
19. On 7 March 2002 the applicant appealed in cassation to the Supreme Court of Ukraine against the decision of 28 August 2001, of which he had been informed on 15 February 2002.
20. On 20 February 2003 the Supreme Court of Ukraine quashed the decision of 28 August 2001 and remitted the case for a fresh consideration on the grounds that the Vatutinskyy Court had failed to inform the applicant about the date and place of the hearing 28 August 2001.
21. On 6 July 2004 the Desnyanskyy District Court of Kyiv (the former Vatutinskyy Court) found for the applicant and ordered the eviction of Mrs S. together with all other persons residing in that flat. The court held that the applicant had lawfully acquired the flat.
22. On 4 August 2004 the defendant appealed against the judgment of 6 July 2004. On 25 August 2004 the Desnyanskyy District Court of Kyiv granted the defendant a time-limit to rectify the shortcomings of her appeal.
23. On an unspecified date the defendant lodged with the same court the corrected version of her appeal.
24. On 9 November 2004 the Kyiv City Court of Appeal rejected the defendant’s appeal against the judgment of 6 July 2004.
25. On 14 April 2005 the panel of three judges of the Supreme Court of Ukraine rejected the defendant’s request for leave to appeal in cassation.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1