ITEMID: 001-68562
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GOROKHOV AND RUSYAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 6. The applicants were born in 1952 and 1961 respectively and both live in Moscow.
7. The applicants took part in the liquidation of the consequences of the nuclear accident at the Chernobyl nuclear plant. They were recognised as handicapped, becoming entitled to a special disability pension.
8. In 2000 the applicants brought a civil action against the social security authorities, claiming that the amounts of their disability pensions had not been properly calculated. They maintained that the social security authorities should have increased their pensions in line with the increase of the minimal wage in Russia, but failed to do so.
9. On 29 January 2001 the Nikulinskiy District Court of Moscow satisfied their claims awarding the first applicant 11,568.98 Russian roubles (RUR), and the second applicant RUR 14,862.5. The arrears awarded to the applicants by the District Court constituted more than 58 per cent of the amounts received by the applicants from the social security authorities within the contested period. On 18 April 2001 this decision was upheld by the Moscow City Court.
10. Later this year the applicants brought a new action claiming the outstanding amounts of the disability pensions due to them for the period starting from January 2001. They also claimed penalties for the delayed payment of their pensions during this period.
11. On 21 June 2001 the Nikulinskiy District Court awarded the first applicant RUR 10,351 and the second applicant RUR 13,274 as the outstanding amount of their pensions for the period January – June 2001. The sums awarded by the District Court as arrears constituted approximately 50 per cent of the amount paid to the applicants by the social security authorities during this period. Both applicants were also entitled to penalties, to be recovered from the social security authorities. The penalties were calculated on the basis of the amounts due to the applicants for the period between January and June 2001. On 28 November 2001 this decision was upheld in the main by the Moscow City Court, which only reduced the amount of penalties to RUR 1,000 for each applicant.
12. On an unspecified date between May and September 2001 the applicants obtained writs of execution in respect of the first judgments of the Nikulinskiy District Court of January 2001. In December 2001 the applicants obtained execution writs in respect of the decisions rendered by the District Court in June 2001. These execution writs were forwarded to the bailiffs. However, for a certain period of time the judgments of the Nikulinskiy District Court remained unexecuted.
13. In December 2001 the Ministry of Justice of the Russian Federation, which was in charge of the bailiffs, informed the applicants that the execution of the above judgments was conditional upon the availability of budgetary funds allocated for these purposes by the federal legislature and could not be carried out through the bailiffs. The applicants were advised to send their writs of execution directly to the Ministry of Finance, a State body in charge of distributing budgetary funds.
14. However, as follows from the letter of 5 March 2002, the Ministry of Finance was no longer responsible for distributing the pension funds. Consequently, in 2002 the execution writs were forwarded to the Ministry of Labour and Social Security.
15. In April 2002 the bailiffs discontinued the enforcement proceedings. The applicants challenged the discontinuation, and on 1 November 2002 the Nikulinskiy District Court of Moscow ordered the resumption the enforcement proceedings.
16. On 1 November 2002 the above judgments were enforced. The authorities paid RUR 22,919.32 to Gorokhov and RUR 29,136.40 to Rusyayev. On 5 November 2002 the money were received by the applicants. On 20 February 2004 the authorities offered the applicants additional compensation on certain conditions. However, the applicants rejected this offer.
17. The Russian Law on Enforcement Proceedings (no. 119-FZ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1). Pursuant to this Law, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility.
18. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor.
19. Under Article 1069 of the Civil Code a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failures to act. Such damage is to be compensated at the expense of the federal or regional treasury.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68098
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SIDJIMOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1973 and lives in Pazardjik.
9. On 19 August 1993 he was arrested, charged with the rape of a minor and remanded in custody. Six other persons were also charged.
10. According to the indictment, the victim had been abducted by a Mr. A. and had been raped numerous times by several persons, some of whom had paid to Mr A. for having sex with the victim. Mr A. was charged with rape and acting as a procurer of prostitution. According to the applicant, all accused persons and the alleged victim are of Roma origin.
11. On unspecified dates an investigator interrogated the alleged victim and other accused persons and heard several experts.
12. In June 1994 the applicant and six other persons were indicted and the case listed for trial.
13. In September and October 1994 the trial court referred the case to the prosecutor in view of certain deficiencies in the investigation. On 17 February 1995 the applicant was released on bail.
14. In November 1995 the investigator concluded his work and submitted the file to the prosecutor.
15. In May 1996 the prosecutor ordered additional investigation. In June 1996 the investigator submitted the case to the prosecutor with the proposal that the applicant should be indicted.
16. In 1999 the applicant’s lawyer lodged requests with the prosecuting authorities complaining of the length of the criminal proceedings.
17. On 27 February 2001, noting that the case had remained dormant since June 1996, a prosecutor ordered the resumption of the proceedings and referred the case to an investigator.
18. On 4 April 2002 the investigator objected, stating that in view of the lapse of time, the ensuing evidentiary difficulties and the workload of the investigation service it was preferable to terminate the proceedings.
19. The prosecutor did not accept the investigator’s proposal and on 22 April 2002 ordered additional investigation.
20. It appears that as of November 2004 the proceedings were still pending.
21. In June 2003 an amendment to the Code of Criminal Procedure, the new Article 239a, introduced the possibility for an accused person to have his case examined by a trial court if the investigation has not been completed within the statutory time-limit (two years in investigations concerning serious crimes and one year in all other investigations).
22. By letter postmarked 17 December 2001 the applicant’s lawyer stated that his client had informed him that he did not intend to pursue the application since his relatives and the persons with whom he stood co-accused feared “an adverse reaction by the State” if he maintained his application.
23. After the Court’s admissibility decision the parties exchanged observations on the merits and on just satisfaction. The applicant’s lawyer submitted that the Court should continue the examination of the case which disclosed a flagrant denial of justice. The Government objected.
24. On 24 November 2004 the applicant submitted a written declaration stating that he did not claim monetary compensation from the State, but insisted that the criminal proceedings against him should be terminated, as he had already suffered a lot. He also stated that he left the issue of costs at the Court’s discretion.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22771
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: R.T. and OTHERS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first applicant (“the applicant mother”) was born in 1940. She is the mother of both the second applicant, P.T., born in 1959, and the third applicant, M.T., born in 1968. The applicants, all Finnish citizens, reside in Valkeakoski. Before the Court they are represented by Ms. Anu Suomela of the Association for Family Rights in Finland (Perheen Suojelun Keskusliitto PESUE r.y.). The respondent Government were represented by their Agents, Mr Holger Rotkirch, then Director-General for Legal Affairs in the Ministry for Foreign Affairs, and Mr Arto Kosonen, Director in the same Ministry.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1975 the applicant mother was accepted as a family day carer. She was caring for her own and a few other children, including mentally disabled ones, in her home under the supervision of the local day care authority. In 1978 a third child, M., was born to her and diagnosed as suffering from Down’s syndrome. At the age of two he also began to suffer from repeated aggravated ear infections.
In 1979 the applicant mother sought therapy at the Mental Health Office of Valkeakoski in order to cope with the upbringing of M.
In 1981 M.’s father and the applicant mother divorced, she remaining M.’s sole custodian. In 1986 she gave up her post as a family day carer as M. had become difficult to care for and had begun to suffer from behavioural disturbances. It had also been discovered that his hearing was severely impaired.
Afterwards the applicant mother remained unemployed for a while and the family was evicted from their flat. She started to abuse alcohol.
On 29 occasions from 1983 to 1990 the applicant mother voluntarily placed M. in the Centre for Mentally Disabled at Ylinen. The duration of his stays varied from a few days to a few weeks. Some of the stays were caused by the applicant mother’s experiences of burn-out and some stays were necessary for examination and therapy purposes.
In 1991 the applicant mother requested that M. be placed in voluntary foster care so as to enable her to resolve her financial and drinking problems. Following the approval by the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of Valkeakoski M. was, on 1 November 1991, placed in a foster home 70 kilometres away. The family had five children from before, two of whom being baby midgets demanding particular care.
Meanwhile, the applicant mother underwent treatment in order to reduce her alcohol consumption. She re-educated herself, qualifying to become a caretaker of hospital equipment. Soon she began to feel that her co-operation with the foster parents was not satisfactory. For instance, M. would visit her in dirty and ragged clothes. His foot hygiene would be neglected, although his feet were suffering from bacteria demanding particular care. He would tell her that he had been spanked by the foster parents.
In 1992 M. was equipped with a hearing device as a result of which his behavioural disturbances apparently diminished.
In the spring of 1993 the applicant mother informed the Social Welfare Board that she would take M. home. The Board objected and on 26 May 1993 it placed him in compulsory public care, considering, inter alia, that the applicant mother was unable to provide him with adequate care and sufficiently secure growth conditions. All other support measures had proved insufficient, as the applicant mother had withdrawn her consent to M.’s placement in the foster home. It was in M.’s interest to remain in that home, where he had become used to “a regular life rhythm, certain boundaries, security as well as people whom he could trust”.
The applicant mother had been heard in the Social Welfare Office on 13 May 1993, whereas all applicants had been heard at the Social Welfare Board’s meeting on 17 May 1993.
In her appeal to the County Administrative Court (lääninoikeus, länsrätten) of Häme the applicant mother objected to the care order, considering that her conditions had improved to the necessary extent. The other applicants, by now living on their own a few kilometres away from her, stated that they would assist in caring for M. The applicant mother also invoked an opinion of 19 May 1993 submitted by Ms. M.B. and Dr. R.T. of the Mental Health Office and concluding that she had managed better than the average as a custodian and mother. She further requested, inter alia, that M. himself be heard in a manner which would ensure that the opinion expressed by him was genuinely his own.
On 21 September 1993 the County Administrative Court refused the request for an oral hearing and dismissed the appeal. It considered, inter alia, that M. had been sufficiently heard by a social welfare official on one occasion while he had been transported back to the foster home from a school providing therapy.
Meanwhile, according to a memorandum of a social welfare official dated 18 September 1993, M. would be permitted to stay with the applicant mother for three weeks during the period October 1993-February 1994 and for one month in the summer of 1994. The foster parents would write to the applicant mother once a month. She and other relatives would be able to visit M. in the foster home provided they gave advance notice.
In her appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) dated 3 November 1993 the applicant mother underlined that the applicants’ request for joint custody of M. was pending before the District Court (käräjäoikeus, tingsrätten) of Toijala. She requested to be allowed to supplement her appeal by adducing the District Court’s judgment, or that the case be remitted to the County Administrative Court should the applicants’ request for shared custody be granted.
The Supreme Administrative Court obtained written observations from the Social Welfare Board. The Board recalled, inter alia, that the applicant mother herself had terminated her contract as a family day carer, “perhaps already then realising her problems”. The Board adduced new material consisting of an affidavit signed by her former family day care superior on 23 November 1993; an affidavit signed by M.’s special teacher on 29 November 1993, a report on M.’s mental development dated 22 November 1993 and submitted by Ms. L.H., a psychologist of the Pirkanmaa Municipal Federation for Social Services.
In her rejoinder to the Supreme Administrative Court the applicant mother invoked an affidavit signed by the second and the third applicant on 18 January 1994; an affidavit signed by the psychologist who, in 1986, had recommended her to give up her post as a family day carer; an affidavit signed by a parish deacon concerning the care which the applicant mother had provided to other mentally handicapped children; and an affidavit signed by a further person concerning M.’s unwillingness to return to the substitute home after his stays with the applicant mother. The applicant mother argued that no weight should be given to her former employer’s affidavit unless the Court were to hear that person as a witness under oath.
On 28 April 1994 the District Court granted the applicants’ request for shared custody of M. It noted, however, that the enforcement thereof would also require taking into account any orders relating to his public care.
On 4 August 1994 the Supreme Administrative Court upheld the County Administrative Court’s decision of 21 September 1993.
On 16 August 1994 the social welfare officials drew up a public care plan according to which M. would be able to stay with the applicant mother during the autumn, Christmas, winter and summer holidays.
On 10 September 1994 the applicants requested that both the care order and the access restriction be revoked with a view to reuniting M. with them. In support of their request they proposed a plan for gradually increasing his contacts with them, starting with one visit a month.
On 23 September 1994 an official of the Social Welfare Board restricted the applicants’ access to M. along the terms of the care plan of 16 August 1994. The restriction was to remain in force until 27 September 1996, when M. would reach the age of majority. The Board relied, inter alia, on an opinion of 5 September 1994 submitted by a specialist in psychiatry and mental disability who was responsible for the public care provided by foster parents within the relevant area. The Board further relied on an expert opinion of 6 September 1994. Both opinions proposed that the number of visits should not be increased.
On 16 November 1994 the Social Welfare Board refused the applicants’ request for a revocation of M.’s public care and the access restriction. The Board accepted that the conditions in the applicant mother’s home were good but nevertheless considered that M. was in need of “a well-focused and consistent upbringing”.
The applicants appealed to the County Administrative Court inter alia on the grounds that they had not been properly heard by the Board. They also requested an oral hearing for the purpose of hearing witnesses.
On 23 February 1995 the Social Welfare Board decided to revoke M.’s public care of its own motion because the services of his foster home were no longer available to the Board. On 24 February 1995 he was returned to the applicant mother. On 29 March 1995 an official of the Board terminated the public care.
On 19 May 1995 the County Administrative Court found that M. had not been heard prior to the decision of 16 November 1994. It had not been shown that his state of development justified the lack of such a hearing. However, as his public care had already been revoked by the Board of its own motion, the Court found no reason to amend the decision under appeal.
The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], No. 25702/94, §§ 94-136, ECHR 2001-VII). Those provisions of particular relevance to the present case are described below.
The right of the mentally disabled to special care is governed by the 1977 Act on Special Care for Mentally Disabled (laki kehitysvammaisten erityishuollosta, lagen ang. specialomsorger om utvecklingsstörda 519/1977). The various forms of assistance guaranteed under this legislation shall normally be provided through an agreement with the custodians. If they refuse necessary assistance to a child, custody may be transferred to someone willing to accept such services. If a conflict of interests arises between the child and his or her custodian, a trustee or guardian may be appointed for the child.
In extreme situations where the overall care and upbringing of a mentally disabled child is at stake the child shall be placed in public care. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2).
The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party, inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once.
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.


ITEMID: 001-88366
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FOY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Bernard Foy, is a British national who was born in 1940 and lives in Wigan. He was unrepresented before the Court. 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 28 September 1989. His claim for widows’ benefits was made on 21 February 2002 and was rejected on 14 March 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 11 July 2002. 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 benefits were payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-83879
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BRAGADIREANU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 3;Violation of Art. 3 (detention conditions);Violation of Art. 6-1(length);Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1954 and lives in Bucharest.
6. On 9 June 1993, the applicant was placed in police custody for five days under the accusation of having murdered his partner. On 14 June 1993, the prosecutor attached to the Giurgiu County Court ordered the applicant's remand in custody.
7. On 22 October 1993, the prosecutor attached to the Giurgiu County Court committed the applicant for trial for aggravated murder, under Article 176 (a) of the Criminal Code.
8. On 4 April, 10 October, 28 November 1994, 9 January, 13 February and 15 May 1995, in the presence of the applicant and D.U., his chosen defence counsel, the County Court heard evidence from witnesses. On 10 October 1994 the applicant also gave evidence. On 15 May 1995 the County Court heard evidence from the prosecutor, the civil party and D.U. It then allowed the applicant to address the court last.
9. In a judgment of 29 May 1995 the County Court found the applicant guilty of aggravated murder and sentenced him to twenty years' imprisonment. It based its judgment on the witness testimonies, the applicant's declarations and behaviour and the medical reports concerning the death of the victim. On 16 February 1996 the sentence was confirmed, upon the applicant's appeal, by the Bucharest Court of Appeal which heard evidence from the applicant and I.C., his defence counsel.
10. The applicant appealed in cassation before the Supreme Court of Justice alleging that he had not committed the murder and that, therefore, the evidence had been wrongly interpreted by the courts.
11. The applicant was sent to the Prison Hospital from 4 August to 5 October 1995, from 4 April to 25 April 1996 and again from 8 to 22 August 1996. He underwent several surgical interventions there. In 1996 he was diagnosed with a perianal tumour but refused further surgery.
Due to a severe problem with his eyes, the doctors who examined the applicant recommended his release.
12. During the proceedings before the Supreme Court, the applicant's health was in constant decline. Therefore, he was absent from most of the hearings held in the case, but allegedly requested repeatedly that the proceedings be suspended because of his illness.
13. It appears from the non-definitive decisions that the applicant was represented either by a court-appointed counsel or by a lawyer of his choice for most of the hearings.
14. On 17 February 1997, after having examined the applicant and having noted, in particular, that he had lost 20 kg in six months, the prison doctors recommended that the applicant undergo an expert examination by the Forensic Institute. On 10 March 1997, the same doctors recommended the applicant's release.
15. He was hospitalised again between 8 January and 30 May 1997. In March 2007, he was transferred under escort to the Bagdasar public Hospital in Bucharest where he underwent a colostomy. He claims that he was handcuffed to the bed.
16. On 23 April 1997, the doctors recommended his release from custody due to his severe medical condition.
17. On 15 May 1997, the Forensic Institute concluded that the applicant had to follow a three-month course of treatment, which would prevent him from participating in the proceedings.
18. On 27 May 1997 the Supreme Court suspended the trial due to the applicant's health condition, as revealed by the Forensic Institute's report adduced in the case. It also ordered the applicant's release, which took place on 30 May 1997.
19. The Supreme Court requested periodically the experts' opinion on the applicant's condition in order to assess if the reasons for the suspension of the proceedings were still valid.
20. After his release, the applicant continued to be treated for his illness. On 15 January 1998 the Forensic Institute certified that another sixmonth course of treatment was necessary and that during that time the applicant could not participate in the proceedings.
21. On 10 March 1999 the court held a hearing and noted that the medical report had not yet been submitted. It set its next hearing for 2 June 1999.
22. On 12 March 1999 the Forensic Institute informed the Supreme Court that the applicant was fit to participate in the trial.
23. On 2 June the court took note of the medical report but noted some informalities and sent it back to the Forensic Institute. It set its next hearing for 13 October.
24. On 13 October 1999, in the presence of the applicant's chosen counsel, the Supreme Court noted that neither the prosecutor nor the lower courts had ordered the applicant's psychiatric evaluation, required by law for any person prosecuted for aggravated murder.
25. Therefore, in a final decision of 25 October 1999 the Supreme Court of Justice quashed the previous decisions adopted in the case and sent the case back to the County Court, ordering the applicant's psychiatric evaluation.
26. On 10 March 2000 the file was sent to the Giurgiu County Court, which held the first hearing on 10 April 2000, and then several more, the applicant being absent due to his health problems. He was, however, represented in the proceedings mainly by D.U., a lawyer of his choice.
27. Evidence in the file showed that on 31 May 2000 he had been released from hospital.
28. On 20 November 2000 the County Court referred the case back to the prosecutor to order the psychiatric evaluation.
29. The prosecutor's appeal against this judgment was allowed by the Bucharest Court of Appeal in a final decision of 1 March 2001 which instructed the County Court to order the applicant's evaluation itself, as decided by the Supreme Court on 25 October 1999.
30. On 23 April 2001 the case was restored to the County Court's list of cases.
31. Some twenty hearings took place before the County Court, the case being repeatedly postponed due to the absence of the expert reports or for erroneous summoning of the parties. It appears that the applicant did not attend any of these hearings but was represented at most of them by D.U., his defence counsel.
32. On 15 June 2001 the applicant was hospitalised for another operation.
33. On 14 September 2001 the Forensic Institute estimated that the applicant required a four-month course of medical treatment that could not be administered in prison. However, on 29 October 2001, upon the County Court's request, it concluded that the applicant was fit to participate in the trial.
34. On 5 November 2001 the applicant appeared before the medical commission for his psychiatric examination.
35. On 27 March 2002 the psychiatric expert report was adduced in the case. It confirmed that the applicant had been mentally competent for legal purposes at the time of the victim's murder. The County Court heard evidence from the applicant's lawyer and the prosecutor on 20 May 2002 and pronounced its judgment on 10 June 2002. Due to the applicant's repeated absence on account of his medical condition, the County Court could not hear evidence from him in person.
36. The court re-examined the evidence already in the file and based its decision on the corroboration of witness testimonies gathered by the investigators and the courts, the expert reports concerning the victim's death and the applicant's behaviour towards his partner, towards his former wives (witnesses in the case) and during the criminal investigations and court proceedings – including the assessment of the answers he gave during a polygraph test that he had agreed to take on 12 June 1993 and in the course of which he had not been assisted by a lawyer – and the psychiatric evaluation of the applicant. The County Court found him guilty of aggravated murder and sentenced him to twenty years' imprisonment.
37. The applicant, through his lawyer, lodged an appeal against this judgment challenging the interpretation of facts and law by the County Court. He claimed his innocence and alternatively asked the court to reduce his sentence. His appeal was rejected as out of time in a decision of 13 November 2002 of the Bucharest Court of Appeal.
38. However, on 28 February 2003 the Supreme Court of Justice, upon the applicant's request, quashed the decision and referred the case back to the Bucharest Court of Appeal for a re-examination of the appeal. It considered that the applicant had respected the time limits for lodging his appeal.
39. The applicant did not attend any of the four hearings held before the Court of Appeal. I.C., his chosen representative, attended one of these hearings. The court noted that both the applicant and his lawyer alleged that their health had prevented them from attending the hearings. However, the Court of Appeal found that the applicant was not hospitalised at that time and that his lawyer had failed to designate a substitute, although the court had requested him to do so, in compliance with the law.
40. On 29 May 2003 the Court of Appeal designated of its own motion a representative for the applicant. The same day it examined and rejected the appeal, the applicant not being present at the hearing. It found that the evidence confirmed the applicant'imposed by the District Court was justified. The courtappointed counsel pleaded for the applicant's innocence and alternatively asked the court to lower the sentence imposed.
41. The applicant appealed in cassation against this decision with the Supreme Court of Justice, challenging, as before, the interpretation of facts and law by the courts. The applicant did not attend any of the three hearings on the merits held in the case. At the first hearing, his personal assistant appeared (see paragraph 42 below), informed the Court of the applicant's poor health and asked for a postponement to allow the applicant to appoint a representative. The court postponed the case and appointed a lawyer for the applicant. Before the next hearing, I.C., the applicant's defence council who had represented him in the appeal above, made a written request for another postponement on the ground that he did not have time to study the whole file. In the presence of the court-appointed counsel and of the prosecutor, the court allowed the request. However, I.C. failed to appear at the last hearing of 12 February 2004. The courtappointed counsel participated on behalf of the applicant. In a final decision rendered on the same day, after reassessing the evidence adduced in the case, the Supreme Court upheld the sentence.
42. On 28 August 2003 the applicant was examined by a commission of doctors from the Commission for the protection of handicapped persons. They established that his condition amounted to a severe functional deficiency which entitled him to a personal assistant.
43. On 19 February 2004 the applicant lodged a request for the postponement of the execution of the sentence for medical reasons. Later on he reformulated it, asking for the suspension of the sentence.
44. On 1 March 2004 the applicant was referred to the Forensic Institute for an opinion on whether he was fit to serve the sentence.
45. The Forensic Institute doctors re-examined the applicant and concluded that the stage of his illness permitted the continuation of his imprisonment and that his medical treatment could be continued in prison hospitals:
“The pathology ... is severe, with unpredictable evolution, possibly towards a fatal prognosis which can happen regardless of whether [the applicant] is in prison or released.”
The doctors submitted their report on 30 September 2004.
46. Based on this evidence, the applicant's request for suspension was rejected on 18 October 2004 by the Giurgiu County Court. The decision was upheld by the Bucharest Court of Appeal on 22 November 2004. The applicant did not appeal on points of law and thus this latter decision became final.
47. On 24 October 2006 the Forensic Institute started a new expert examination of the applicant in order to assess the possibility of interrupting the execution of his sentence. However, on 30 August 2006 the applicant refused to continue with this examination, as he considered that it would not benefit him.
48. On 10 March 2004 the applicant was imprisoned in order to serve the remainder of the sentence. He claimed that he had been placed in a cell with thirty beds arranged at three levels and with badly damaged mattresses, with two detainees in each bed, two toilets and no shower or warm water in the room. Due to his medical condition (as he had an artificial anus, he was unable to control his bowel movements) he asked to be transferred to a single-bed cell, but his request was rejected on the ground that no such cells existed in that penitentiary, except those for solitary confinement.
49. According to the applicant, he repeatedly requested to be examined by a doctor, but to no avail. He claimed that his medicine had not been provided by the authorities for lack of funds, and his family had had to send it to him.
50. The Government sent the applicant's medical file along with a letter from the Administration of Penitentiaries dated 26 September 2006 which detailed the medical care that the applicant received in prison.
51. It appears that from 10 to 22 March 2004 he was hospitalised in the Jilava Penitentiary Hospital where he was examined by the penitentiary doctors. He underwent laboratory tests and an oncological evaluation in public hospitals.
52. Subsequently he was examined periodically by the penitentiary doctors and often sent for specialist check-ups.
53. From 8 May to 22 July 2004 the applicant was hospitalised again in the Jilava Penitentiary Hospital. Laboratory analyses were performed and he was also sent to the public hospital for more detailed examinations.
54. He was hospitalised again in Jilava from 8 to 28 August 2004. On 18 August 2004 the doctors performed an abdominal ultrasound scan and recommended check-ups every three months.
55. On 6 August 2004 the applicant received from his family thirty tubes of Pentoxifilin.
56. His medical surveillance continued throughout 2004, 2005 and 2006. He underwent ophthalmologic check-ups, was seen by specialist doctors at least every other month, and received through the penitentiary pharmacies the prescribed medicines every month.
57. On 28 June 2005 the applicant informed the authorities that he refused to be examined in the Jilava Penitentiary Hospital, bearing in mind his criminal complaint of ill treatment against the penitentiary doctors (see paragraphs 61-62 below).
58. He was hospitalised again in Jilava from 23 to 31 August 2006.
59. It appears that the applicant received medicine from the penitentiary pharmacies as prescribed by the doctors that had examined him.
60. Between the periods of hospitalisation, the applicant was detained in the penitentiaries in Rahova and Giurgiu.
61. On 4 June 2004 the applicant lodged a criminal complaint against the penitentiary doctors that had operated on him while in detention. He accused them of intentional harm and malpractice during the surgical intervention. On 1 April 2005 the Bucharest Military Prosecutor's Office dismissed the complaint as out of time. The applicant appealed against this decision. In his letter to the Prosecutor's Office, he invoked the fact that he was “transported to and kept in the Bagdasar-Arseni Hospital under escort”. The criminal complaint was re-examined and dismissed again, on 28 July 2005, by the Bucharest Military Prosecutor. In a decision of 18 April 2006 the Bucharest Military County Court upheld the Prosecutor's decision, on the grounds that the accusation against the penitentiary doctors was unfounded and that, in any case, due to the time lapse between the operations and the lodging of the criminal complaint, responsibility for any of the alleged crimes was time-barred.
62. On 3 August 2005 the applicant lodged a complaint with the Bucharest District Court under the Government's Ordinance no. 56/2003. He considered that his right to information, to the protection of his health and to a healthy environment had been infringed in prison. Furthermore he claimed that the prison conditions had amounted to torture. Accordingly, he argued that despite his severe medical condition the prison authorities had refused to put him in a cell by himself. He also claimed lack of access to his medical and criminal files.
63. In a decision of 17 October 2005 the District Court dismissed his action. It considered that the quality of medical care did not fall under the ordinance invoked; the applicant should have lodged an action in civil responsibility against the doctors. In any case, the evidence showed that the applicant had been given adequate medical care, seen by various doctors and examined and afforded the aftercare that had been prescribed.
64. The court dismissed as unfounded the applicant's allegation of lack of access to his medical file. It noted that the said file had been adduced in the case, both the applicant and his representative having thus had access to it.
65. Lastly, the District Court recalled that the Ordinance did not impose an obligation on the prison authorities to ensure access for the applicant to his criminal file. It recalled that the applicant had the right to designate a representative to study it.
66. The applicant's appeal was also dismissed by the Bucharest County Court, in a final decision of 5 December 2005. The County Court noted that the Penitentiary had refused to move the applicant to an individual cell on the ground that he would be soon transferred to a new section, to a room that would be better suited to his medical requirements. It appears that the court estimated that the applicant's allegations concerning the negative influence on his health of the conditions of his detention were unfounded. The court also recalled that it was for the prison authorities to provide his personal assistant.
67. In a letter of 16 December 2005 the Commission for the Protection of handicapped persons informed the applicant that as long as he was imprisoned he was not entitled to any special allowance for his own needs or for hiring a personal assistant, since it was for the penitentiary to provide care for him.
68. To date, the applicant is still in prison. It seems that he has not been transferred to an individual cell.
69. The relevant provision of the Code of Criminal Procedure on the psychiatric evaluation of a person charged with a criminal offence reads as follows:
“(1) The psychiatric evaluation is mandatory in cases of aggravated murder...”
70. The Code of Criminal Procedure provides that informalities in the trial such as the courts not hearing evidence from the accused in person, constitute an infringement of the rights to defence which shall lead to declaring the decision taken null and void. The relevant provisions of domestic law and practice are described in detail in the case of Ilişescu and Chiforec v. Romania (no. 77364/01, §§ 18-19, 1 December 2005).
71. The relevant part of law no. 51/1995 on the organization and exercise of lawyers' practice reads:
“The lawyer shall study the case thoroughly..., shall attend every court hearing...”
72. The relevant part of the statutes of the lawyers' practice reads:
“(2) When the lawyer is prevented from fulfilling his professional duties, he shall provide a substitute...”
73. Extract from the 11th General Report of the European Committee for the Prevention of Torture (CPT) (CPT/Inf (2001) 16)
“29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions. No doubt, various factors - including those of a cultural nature - can make it preferable in certain countries to provide multi-occupancy accommodation for prisoners rather than individual cells. However, there is little to be said in favour of - and a lot to be said against - arrangements under which tens of prisoners live and sleep together in the same dormitory.”
74. The CPT standards (“Substantive” sections of the CPT's Annual General Reports)
“50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners...
[Prisoners unsuited for continued detention]
70. Typical examples of this kind of prisoner are those who are the subject of a shortterm fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.”
75. The CPT visited Romania in 1995, 1999, 2001, 2002, 2003, 2004 and 2006. All but its most recent visit report have since been made public.
Overcrowding of prisons and lack of reasonable hygiene facilities were constantly stressed by the CPT.
76. Recommendation no. R (98) 7 concerning the ethical and organisational aspects of health care in prison reads:
“C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis
50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment.
51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-96682
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KAZAKEVICH AND OTHER "ARMY PENSIONERS" CASES v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants’ names and other details are indicated in the table below. All the applicants except Ms Odintsova are Russian retired servicemen entitled to payment of pensions by the State. Ms Odintsova is the widow of a colonel who died in the crash of a training aircraft.
7. On various dates the applicants sued the military commissions in their regions and, in case of Kazakevich and Osipov, the Ministry of Defense and the Federal Security Service (FSB) respectively, claiming payment of a pension or increase of pensions on account of their military service and, in the case of Odintsova, on account of her husband’s death.
8. The domestic courts granted the applicants’ claims (see details of the judgments in the table below). The judgments in cases of Sukchev and Zamakhayev were upheld on appeal; other judgments were not appealed against by the defendant authorities. All the judgments in the applicants’ favour thus became binding and enforceable on the dates indicated in the table below.
9. On various dates the Presidiums of higher courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments in the applicants’ favour, considering that the lower courts misapplied the material law (see details of the judgments in the table below). In the cases of Odintsova and Osipov the Presidiums dismissed the applicants’ claims by the same judgments. In the other cases the Presidiums sent the cases back to the first instance courts, which later dismissed the applicants’ claims.
10. In five cases (Kazakevich, Odintsova, Osipov, Sukchev and Zamakhayev), the judgments in the applicants’ favour were not enforced. In the other five cases (Legkov, Afanasyev, Polyanskiy, Malakhov and Zorin), the judgments in the applicants’ favour were enforced as regards the lump sum and/or monthly awards. It appears that the payment of monthly awards was stopped a short time before or after the quashing of the judgments on supervisory review.
11. In the case of Odintsova, the Samarskiy District Court of Samara delivered on 27 May 2003 another judgment in the applicant’s favour, granting pension arrears and a sum of 2,500.00 Russian roubles (RUB) as compensation for non-pecuniary damage and costs. The judgment was not appealed against and became enforceable on 6 June 2003. The Government submitted that all awards had been credited to the applicant’s bank account on 12 August 2003 and that a separate sum of RUB 2,500.00 had again been credited to the applicant’s account on 9 November 2004 as a result of a clerical error. The applicant submitted that the pension arrears awarded by the court had been credited to her account on 3 September 2003 but the remainder award of RUB 2,500.00 had only been credited in November 2004.
12. On 24 December 2001 Ms Odintsova filed a separate lawsuit against the Ministry of Defense, claiming compensation in respect of pecuniary and non-pecuniary damage. On 2 October 2003 the Kirovskiy District Court of Samara rejected her claims. On 11 November 2003 the Samara Regional Court upheld the judgment on appeal.
13. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court’s judgment in the case of Sobelin and Others (see Sobelin and Others v. Russia, nos. 30672/03 et al., §§ 33-42, 3 May 2007).
14. In 2001-2005 judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government’s Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, nos. 2191/03 et al., §§ 33-39, 21 June 2007).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101431
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ROSSELET-CHRIST v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3
JUDGES: David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1945 and lives in Peseux, Switzerland.
7. On 7 January 2003 the Slovakian police arrested the applicant. On 8 January 2003 the Regional Office of the Judicial Police in Nitra accused her of forgery and attempted fraud. She and another person were suspected of having attempted to cash two cheques for more than seven million pounds sterling (GBP) and 1,800,000 United States dollars (USD) in November 2002. Those cheques were considered to have been forged.
8. The applicant denied involvement in any unlawful action. She maintained that the cheques had been issued by foreign investors interested in a business activity which she had been planning to launch in Slovakia. She further argued that the British bank concerned had never contested the validity of the cheque in pounds sterling.
9. On 12 January 2003 the Nitra District Court remanded the applicant in custody with effect from 7 January 2003. Her detention was considered necessary as there was a risk of her absconding within the meaning of Article 67 § 1 (a) of the Code of Criminal Procedure. The judge considered it relevant that the applicant was a foreign national and that she risked a prison term of between ten and fifteen years for the offences in issue. Reference was also made to Article 67 § 2 of the Code of Criminal Procedure. The District Court heard the applicant and referred to the statement of the applicant's co-accused and available documentary evidence.
10. On 27 June 2003 the District Court extended the applicant's detention to 7 January 2004. It held that, in addition to the above-mentioned grounds, her detention was also necessary as she might influence witnesses or otherwise hamper the investigation within the meaning of Article 67 § 1 (b) of the Code of Criminal Procedure. In particular, important witnesses had to be heard in Spain whom the applicant had contacted by phone and fax prior to her detention. The District Court found no delays in the investigation and noted that the authorities of the United Kingdom, Spain and the United States of America had to be asked for assistance.
11. On 30 June 2004 the District Court extended the applicant's detention until 7 November 2004. As the Spanish authorities had not complied with the requests for legal assistance it had been impossible to complete the investigation. It risked being jeopardised if the applicant was released.
12. On 28 October 2004 the Banská Bystrica Regional Court granted a further extension of the detention, until 7 January 2005. That decision was justified by the fact that the General Prosecutor's Office had requested the assistance of the Spanish authorities in obtaining witness statements and that those statements had not yet been submitted. The statements were necessary to establish the relevant matters in respect of which the statements of the accused differed. Reference was also made to the applicant's nationality, the serious nature of the offence of which she was accused and the risk that she might influence witnesses if released. The Regional Court relied on Articles 67 §§ 1(a), (b) and 2 of the Court of Criminal Procedure.
13. On 22 December 2004 the Supreme Court extended the applicant's detention until 7 July 2005. It noted that no procedural steps had been taken between May and December 2004. That was, however, due to the absence of a reply from the Spanish authorities. The Supreme Court expressed the view that the applicant's detention was strictly necessary until 7 July 2005 only and that the preliminary proceedings should be completed before that date.
14. On 19 May 2005 the applicant lodged a request for release, with reference, inter alia, to Article 5 §§ 1 (c), 3 and 4 of the Convention. She argued that the reasons invoked for her detention had fallen away and requested that the court dealing with the request hear her.
15. On 1 July 2005 the Nitra District Court dismissed the request. With reference to the applicant's arguments, the evidence and the statements of witnesses and the applicant's co-accused it considered that the accusation of the applicant was justified and that the reasons for her detention, as specified in the earlier decisions, persisted. In particular, the applicant might influence witnesses and the law foresaw a minimum penalty exceeding eight years' imprisonment for the offence imputed to her.
16. The District Court decided in camera. Its decision was served on the applicant's counsel on 29 July 2005 and 19 October 2005. The applicant lodged a complaint on 29 July 2005 and again on 20 October 2005. On 3 November 2005 the Nitra Regional Court dismissed the complaint.
17. In the meantime, on 8 July 2005 the applicant and her co-accused were indicted before the Nitra Regional Court. On 18 July 2005 that court dismissed the applicant's request for release. It pointed to the applicant's nationality and the heavy penalty for the offence of which she was accused. It had been established in the course of preliminary proceedings that in her correspondence the applicant had attempted to influence witnesses. The Regional Court's decision was served on counsel for the applicant on 29 August 2005. The applicant lodged a complaint. On 29 September 2005 the Supreme Court dismissed that complaint.
18. In parallel, on 27 June 2005 the Prosecutor General petitioned for a further extension of the detention of the applicant and her co-accused, until 7 October 2005. The applicant contested that request. She stated, in particular, that all witnesses had been heard and that her foreign nationality did not in itself justify her deprivation of liberty. She argued that the case was not complex and that there had been delays in the proceedings.
19. On 6 July 2005, the Supreme Court extended the applicant's detention until 7 October 2005. It noted that the applicant was accused of having attempted to cash two forged cheques and that the suspicion against her and her co-accused persisted. It invoked the risk of the applicant's absconding with reference to the heavy penalty for the offences imputed to her and the fact that she was a foreign national. Her detention was therefore necessary within the meaning of Article 67 § 1(a) of the Code of Criminal Procedure.
20. The Supreme Court further admitted that witnesses had been heard. Nevertheless, the applicant's detention within the meaning of Article 67 § 1(b) of the Code of Criminal Procedure remained necessary as the file contained correspondence, which had been written by the applicant or addressed to her, indicating that she had attempted to influence the investigation in the case. The criminal activity imputed to the accused persons was inseparable. There was a risk that they could influence each other or witnesses even at the trial stage of the proceedings. No particular delays in the proceedings had been established; the relevant procedural steps had been delayed for objective reasons. The Supreme Court decided in camera in accordance with the relevant law.
21. On 14 September 2005 the Nitra Regional Court petitioned the Supreme Court for a further extension of the applicant's detention. It was argued that the reasons for her and her co-accused's detention still existed and that the proceedings risked being jeopardised if they were released. On 26 September 2005 the applicant's counsel submitted written observations on that request. She argued that there had been no progress in the case following the indictment and that the length of the proceedings and her detention was excessive. The applicant also requested that the Supreme Court hear her.
22. On 29 September 2005 the Supreme Court, at a meeting held in camera, extended the applicant's detention until 30 June 2006. It based its decision on the fact that the applicant was a foreign national and held that the indictment indicated that her prosecution was justified. Both the applicant and her co-accused were foreign nationals residing abroad. Considering also the heavy penalty set down in law for such offences, their detention was justified within the meaning of Article 67 §§ 1(a) and 2 of the Code of Criminal Procedure. Specific reasons for which it had been earlier concluded that the accused might influence witnesses and hamper the proceedings persisted. Reference was also made to the Supreme Court's decision on the applicant's request for release given on the same day (see paragraph 17 above).
23. The Supreme Court further noted that the case was complex from both the factual and the legal point of view. The file comprised nearly eight hundred pages. Given the short period of time which had lapsed after the filing of the bill of indictment, the Regional Court had not yet had sufficient time to prepare the main hearing and decide on the case. The above extension by nine months of the period of the applicant's detention should suffice to bring the criminal proceedings to a close.
24. On 21 December 2005 the Nitra Regional Court returned the case to the public prosecutor for further investigation. It decided that the applicant should remain in custody.
25. On 1 February 2006 the Supreme Court quashed the Regional Court's decision in the part ordering the case to be returned to the public prosecutor. In particular, it did not consider relevant the argument that the file, to the extent that it concerned the applicant's co-accused, had to be translated into French. The Supreme Court ordered the Regional Court to examine the charges against the applicant and her co-accused and dismissed their complaint against the decision ordering their continued detention.
26. The applicant was released on 18 May 2006 following the belowmentioned order of the Constitutional Court (see paragraph 36). She returned to Switzerland.
27. The main hearing in the criminal proceedings was scheduled for 13 and 14 June 2006. The applicant was absent for health reasons. The Regional Court decided to deal with the charges against her in a separate set of proceedings.
28. On 22 October 2007 the applicant informed the Regional Court that she insisted on the charges against her being determined in her presence and that she still could not attend a hearing for health reasons.
29. On 30 November 2007 the Nitra Regional Court discharged the applicant's co-accused and ordered his release. On 10 January 2008 the Supreme Court quashed that judgment and returned the case to the public prosecutor for further investigation. The Supreme Court noted that witness statements included in the file were contradictory. The facts of the case had not been sufficiently established. In particular, the public prosecutor had proceeded erroneously in that he had abstained from having a witness examined in Switzerland prior to the filing of the bill of indictment on 8 July 2005. Such evidence could have shed light on the matter.
30. On 1 April 2008 the Regional Court returned the applicant's case to the public prosecutor for further investigation, with reference to the Supreme Court judgment of 10 January 2008. Subsequently the charges against the applicant and her co-accused were again examined jointly and the authorities of the United Kingdom, Switzerland and the Czech Republic were asked for assistance.
31. On 13 October 2009 the applicant informed the investigator that she was unable, because of serious health problems, to undergo a crossexamination with a witness scheduled for 30 October 2009.
32. In January 2010 the Slovakian authorities decided to request their British counterpart to hear a representative of the bank concerned as a witness. The proceedings are pending.
33. On 8 September 2005 the applicant lodged a complaint with the Constitutional Court. She specified that she sought the finding of a breach of Article 5 §§ 1 (c) and 5 of the Convention in the proceedings leading to the Supreme Court's above-mentioned decision of 6 July 2005. In the reasons for her complaint the applicant also invoked Article 5 §§ 3 and 4 of the Convention. She argued that there had been no relevant reasons for her continued detention, that she had not been released, that the Supreme Court had neither heard her nor had it addressed the arguments which she had submitted in writing, and that she had been informed of the decision in issue on 13 July 2005 only.
34. On 28 September 2005 the Constitutional Court rejected the complaint as being manifestly ill-founded. It held that neither the way in which the Supreme Court had proceeded nor the conclusion which it had reached were contrary to the applicant's rights under Article 5 §§ 1 and 5 of the Convention a breach of which she had formally alleged.he Constitutional Court considered to be relevant and sufficient, that her continued detention was still necessary within the meaning of the relevant provisions of the Code of Criminal Procedure.
35. On 25 November 2005 the applicant lodged a second complaint with the Constitutional Court. She alleged a breach of Article 5 §§ 1 (c), 3 and 4 of the Convention in the proceedings leading to the Supreme Court's decision of 29 September 2005 to extend her detention to 30 June 2006. In particular, the applicant argued that there had been no relevant reasons for her continued detention, that it had lasted an excessively long time, and that the Supreme Court had not heard her. The applicant requested the Constitutional Court to order reimbursement of the costs of her legal representation in the constitutional proceedings, which amounted to 7,414 Czech korunas (CZK), plus value-added tax.
36. In a judgment of 17 May 2006 the Constitutional Court held that the Supreme Court had breached the applicant's right under Article 5 § 4 of the Convention in that it had failed to hear her prior to its decision of 29 September 2005 to extend her detention. It quashed that decision, ordered the Supreme Court to release the applicant immediately and to reimburse 5,302 Slovak korunas (the equivalent of CZK 3,918) in respect of the costs of her legal representation. In view of this conclusion the Constitutional Court considered the examination of the applicant's other complaints unnecessary.
37. The following provisions of the Code of Criminal Procedure applicable at the material time are relevant in the present case.
38. Under Article 67 § 1, a person charged with a criminal offence can be detained, inter alia, where there are reasonable grounds for believing that he or she would abscond (sub-paragraph (a) of Article 67 § 1), influence the witnesses or the co-accused or otherwise hamper the investigation (subparagraph (b)) or continue criminal activities, complete an attempted offence or commit an offence which he or she had prepared or threatened to commit (sub-paragraph (c)).
39. Article 67 § 2 provides that an accused person can be remanded in custody where he or she is being prosecuted for an offence punishable with a minimum prison sentence of eight years.
40. Article 71 § 2 provides that a person's detention in the context of both preliminary proceedings and during trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and, in cases of particularly serious offences, up to five years.
41. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person's detention persist.
42. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support.
43. Under paragraph 3 of section 20, the Constitutional Court is bound by a request from a plaintiff for proceedings to be started unless the Act expressly provides otherwise.
44. Pursuant to section 50(1)(a), a complaint must indicate, in addition to the information mentioned in section 20, the fundamental rights or freedoms the violation of which a plaintiff alleges. Paragraph 3 of section 50 requires that plaintiffs who seek a just satisfaction award should specify its extent and indicate the reasons for their claim.
45. The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act 1993, by a party's submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-67228
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ABDULSAMET YAMAN v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
TEXT: 9. The applicant was born in 1964 and was detained in the Konya prison in Turkey at the time of the application. In May 2000 he went to Germany and sought asylum. He currently lives in Germany. He was the provincial leader of HADEP (People's Democracy Party) in Adana.
10. On 3 July 1995 the applicant was taken into custody by police officers from the Adana Security Directorate. He alleges that he was blindfolded, put in a car, beaten and threatened. After being driven around for some time, still blindfolded, he was taken to the Adana Security Directorate. The applicant claims that he did not realise that the persons who had abducted him were police officers and that the building to which he had been taken was the Security Directorate.
11. The applicant further alleges that he was blindfolded, stripped naked and immersed in cold water in the Security Directorate. He was attached by the arms to the ceiling pipes and made to stand on a chair. Electric cables were attached to his body, in particular to his sexual organs. The chair was then pulled away and he was left suspended while electric shocks were administered. From time to time the shocks were stopped and his testicles were squeezed. The applicant was interrogated about his work and his connections with an illegal organisation, the PKK (Kurdistan Workers' Party). He was further questioned as to why he had helped torture victims apply to the European Commission of Human Rights.
12. Between 3 and 11 July 1995 the applicant was detained in the Adana Security Directorate. The applicant alleges that his family had not been informed of his detention and that the interrogation under torture continued during this nine-day period.
13. On 11 July 1995 the applicant was examined by a medical expert from the Forensic Medicine Institute. The applicant stated that - as a result of the torture – he did not have the full use of his left arm, one of his ribs had been broken and there were injuries to various parts of his body on account of having been attached and suspended. The forensic medical expert's report stated the following:
“4 x 3 cm superficial scab wounds were identified on the right knee of the person and inside both wrists. The person described numbness in his left arm and pain in the right side of his chest.”
14. On the same day the applicant was brought before the Adana public prosecutor and then before the Adana Magistrates' Court (Sulh Ceza Mahkemesi). On both occasions the applicant denied the veracity of the statements that had been taken from him by the police. The Adana Magistrates' Court ordered his detention on remand. He alleges that on the way from the courthouse to the Adana prison he was ill-treated by the policemen accompanying him, who used rifle butts and truncheons to beat him.
15. On 12 July 1995 the applicant was brought to the sickbay of the prison and examined by Dr. H.Ö. who noted the following in the prison patients' examination book:
“He claims to have been subjected to duress in the Security Directorate. He further alleges that he was beaten up between the courthouse and the prison. There are bruises of 3-4 cm on the upper left arm, numerous erythematic and some ecchymosed lesions on the back. There are lesions, i.e. scratches and grazes, on the right ankle.”
16. The applicant claims that Dr. H.Ö. advised him to obtain permission from the prison authorities to be transferred to a hospital for treatment.
17. The applicant further claims that he submitted petitions to the Adana public prosecutor's office through the prison authorities on 12, 13 and 14 July 1995, requesting that he be given permission to be treated at the hospital and that he be sent to the Forensic Medicine Institute for a further medical examination. He contends that no action was taken on his requests and that the prison administration did not permit him to see a doctor from the Turkish Human Rights Foundation who had come to the prison to inquire about his situation.
18. On unspecified dates the applicant was transferred from the Adana prison to the Konya prison and from the latter to the Ceyhan prison. In 1997 the applicant was released pending trial.
19. On 12 September 1997 a doctor from the Rehabilitation and Research Centre for Torture Victims in Denmark commented on the medical procedures used to examine the applicant. She stated that, following a lapse of time, it was difficult to see any marks on the body after electrical torture. However, it was possible to observe a superficial lesion on the skin in the acute phase on a minority of victims. She further stated that exposure to cold water did not necessarily cause pneumonia, fever or soreness of the throat. She maintained that numbness, pain or reduced strength in the arms were symptoms of suspension by the arms. She finally stated that scab formations on the wrists were often seen when the wrists were tied together tightly for a period of time.
20. On 9 October 1997 the applicant was examined by a doctor from the Adana branch of the Human Rights Foundation of Turkey. According to the doctor's report, the applicant's symptoms included pain in the gums, inability to eat due to missing teeth, pain in the chest and pain and restricted movement in the wrists and knees. The applicant further contracted pleurisy (inflammation of the pleura) which necessitated surgical treatment. As to the reasons for the applicant's poor state of health, the report referred to his illtreatment and the prison conditions.
21. In May 2000 the applicant arrived in Germany where he claimed asylum. On 20 June 2000 he was granted a residence permit in Germany.
22. On 5 March 2001 the applicant was examined by a doctor in Germany. The doctor noted the following symptoms: chronic pain in the feet, knees and femur; dyspnoea (breathing difficulties); depression; and reduced pulmonary functioning. The doctor concluded that it could not be excluded that the applicant's complaints were the result of torture. He further noted that the applicant would receive somatic and psychological treatment at his surgery.
23. On 29 January 2002 the applicant was examined by a doctor working in München Refugio, an organisation based in Munich specialised in providing advice and treatment to refugees and torture victims. The doctor, after referring to the somatic and psychological findings consistent with the report of 5 March 2001, diagnosed the applicant as suffering from chronic post-traumatic stress syndrome. He further stated that the applicant was also suffering from serious psychosomatic problems.
24. On an unspecified date the Adana public prosecutor issued a decision of non-jurisdiction and sent the applicant's case file and the case files of twenty-six other defendants to the Konya State Security Court.
25. On 4 August 1995 the public prosecutor at the Konya State Security Court filed a bill of indictment charging the applicant under Article 168 § 2 of the Criminal Code with membership of the PKK.
26. On an unspecified date, the applicant's case file was transferred to the Adana State Security Court.
27. On 16 March 1999 the Adana State Security Court convicted the applicant under Article 169 of the Criminal Code of aiding and abetting the members of the PKK and sentenced him to three years and six months' imprisonment.
28. On 19 September 2000 the Court of Cassation upheld the judgment of 16 March 1999.
29. On 20 October 1995 the applicant filed a complaint with the public prosecutor's office in Adana alleging that he had been ill-treated during his detention in police custody.
30. On 29 December 1995, following a preliminary investigation against two police officers from the Adana Security Directorate, the Adana public prosecutor declined to take criminal proceedings against the officers due to lack of evidence against them.
31. On 15 April 1997 the International Law and Foreign Relations Directorate of the Ministry of Justice sent a letter to the chief public prosecutor's office in Adana requesting the latter to conduct an investigation into the allegations which the applicant had filed with the European Commission of Human Rights.
32. Between May 1997 and March 1999, the Adana chief public prosecutor's office conducted a new preliminary investigation into the applicant's allegations of ill-treatment. The applicant was heard in the context of this investigation. He gave the names of four witnesses on his behalf. The Adana public prosecutor heard three of these witnesses, who confirmed the applicant's allegations. The public prosecutor heard the accused police officers, who denied the allegations against them.
33. On 25 March 1999 the Adana public prosecutor filed a bill of indictment with the Adana Assize Court (Ağır Ceza Mahkemesi), charging six police officers, who had been on duty in the Adana Security Directorate at the time of the alleged ill-treatment of the applicant, under Article 243 of the Criminal Code. The defendants were accused of torturing the applicant in order to obtain a confession from him.
34. Between 9 April 1999 and 27 March 2003, the Adana Assize Court held twenty-three hearings in the case against the police officers.
35. The court heard the evidence of the accused and some of the witnesses until 10 April 2000. On that date, the court abandoned the proposal to hear the applicant and six witnesses. It held that the statements which they had given during the preliminary investigation were sufficient and observed that they could not be found.
36. On 16 June 2000 the Adana Assize Court withdrew its decision of 10 April 2000 in relation to the applicant on the ground that he could probably be summoned to give evidence before the court since he had filed an application with the European Court of Human Rights. The firstinstance court issued a further summons requiring the applicant to give evidence.
37. The applicant's whereabouts could not be determined until 27 March 2003.
38. On 27 March 2003 the Adana Assize Court held that the criminal proceedings against the police officers should be discontinued on the ground that the prosecution was time-barred (zamanaşımı).
39. A description of the relevant domestic law at the material time can be found in Sakık and Others v. Turkey (judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII § 18-28) and Elçi and Others v. Turkey (nos. 23145/93 and 25091/94, §§ 573 and 575, 13 November 2003).
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5
NON_VIOLATED_ARTICLES: 14
18


ITEMID: 001-99062
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BOLGOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Roman Yuryevich Bolgov, is a Russian national who was born in 1979 and lives in the town of Shakhty, in the Rostov Region. The respondent Government were represented by Mr P. Laptev and Mrs V. Milinchuk, former representatives of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1997 the applicant was drafted into the army and assigned as a naval recruit to military unit no. 9881 in the town of Novorossiysk.
On 22 April 1999 he fell from a metre-high staircase on a concrete shipbuilding cradle. The staircase did not have barrier railings or life rails. The applicant was admitted to hospital and diagnosed with a severe non-penetrating head injury with subdural and subarachnoid haemorrhaging. He underwent a decompression craniotomy in the left parietotemporal part of his head. His injury was complicated by post traumatic stress and sinistral bronchial pneumonia.
In July 1999 the applicant was discharged from the army.
On 31 August 1999 criminal proceedings were instituted against the deputy chief of the military unit, Mr P., an assistant commander of the ship, Mr K., and the officer in charge of ship hull maintenance of Temryuk military unit no. 2389, Mr G. They were charged with violating safety regulations under Article 216 § 1 of the Russian Criminal Code.
In November 1999 the military prosecutor of the Krasnodar Region issued Mr K. and Mr G. with the bill of indictment and sent the case file to the Military Court of the Krasnodar Garrison for judicial examination. The criminal proceedings against Mr P. were discontinued.
On an unspecified date the court started the adjudication of the case. It was further found that the applicant had not been named, in accordance with the procedure of law, as a civil plaintiff and that he had not fully enjoyed his right to defence. By a decision of 6 June 2001 the court that was not at that state of the proceedings empowered to admit the applicant's claim to the file, remitted the case to the prosecutor's office for additional investigation in order to remedy the breach of the applicant's rights (see Relevant domestic law below). This decision was not appealed against by either party to the proceedings.
By a decision of 12 November 2001 of a senior assistant of the military prosecutor, the criminal proceedings against the accused officers were discontinued on the ground that nothing indicated that a criminal offence had been committed. On 11 March 2002 a higher-ranking prosecutor quashed the decision and resumed the proceedings.
On 18 April and 23 November 2002, and 3 April and 23 October 2003 various prosecutors discontinued the criminal proceedings on the above-mentioned ground. Those decisions were quashed by higher-ranking prosecutors on 23 October 2002, 19 February, 20 August and 11 December 2003, respectively.
On 7 July 2004 the proceedings were discontinued on the ground that the statutory time-limit for criminal prosecution had expired.
On an unspecified date in the meantime, the applicant brought a separate civil action for damages against the Ministry of Finance of the Russian Federation and the Treasury of Schacht of the Rostov Region. By a decision of 11 June 2003, the Military Court of the Rostov Region declined to examine the suit owing to the applicant's repeated failure to appear in court.
“1. Loss or harm caused to a person or to a company shall be compensated in full by the wrongdoer.
The law may impose responsibility to compensate for loss or harm on a person other than the wrongdoer”
“Damage caused to an individual or a legal entity by the unlawful actions (inactions) of State, municipal bodies or their officials ... must be compensated. The compensation shall be paid out of the funds of the Treasury of the Russian Federation, the treasury of the constituent element of the Russian Federation or the treasury of the municipal entity respectively”.
“A person who sustained damage as a result of a crime can bring a civil claim against the accused or a person who is vicariously liable for acts of the accused. The civil claim shall be examined jointly with a criminal case.
The claim should be lodged by the relevant person upon the initiation of a criminal case and before the beginning of the adjudication process
...
A person has the right to bring civil proceedings if the claim was not brought in criminal proceedings or if the claim was not adjudicated”.
According to Article 54, a person could be named as a plaintiff by a procedural decision rendered either by an investigator in charge or by a judge.
Article 44 stipulates that a civil claim for compensation in respect of pecuniary and non-pecuniary damage can be submitted by persons who have sustained damage as a result of a crime (paragraph 1). The civil claim can be lodged upon the opening of a criminal case, during the pre-trial investigation, or with the court before the finishing of the adjudication process (paragraph 2).