ITEMID: 001-4616
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BONDA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Slovak national, born in 1927 and living in Bratislava.
A.
The applicant, his wife and his son co-owned, together with six other individuals, a land in Stupava which they had jointly purchased in 1983. The four families co-owning the property built cottages on the land and reached an agreement as regards its use. In 1987 two co-owners requested that they should be authorised to accede to their cottage by a car across the plot used by the applicant and his family. An agreement was not reached and the two co-owners brought proceedings with a view to having the co-ownership dissolved.
On 28 June 1988 the Bratislava-vidiek District Court (Okresný súd) dissolved the co-ownership and determined the owners of the individual plots forming the estate. It considered such a solution necessary in order to ensure a peaceful enjoyment of the property by all persons involved and also in order to enable the claimants to accede to the plot attributed to them.
On 4 January 1989 the Bratislava Regional Court (Krajský súd) modified the first instance judgment in that it re-distributed the property with a view to ensuring all owners a direct access to their plots. Since the shares of the former co-owners could not be entirely respected, the persons concerned were granted a compensation.
On 27 June 1990 the Supreme Court (Najvyšší súd) quashed the judgment as the facts had not been established with sufficient certainty. In particular, the Supreme Court considered that the Regional Court should have explored in more detail the possibility of dividing the property in accordance with the co-owners’ shares.
The case was sent back to the Regional Court. On 30 August 1993 an expert appointed by the latter submitted his opinion on the division of the land. Another expert opinion concerning different issues was submitted on 13 July 1994.
At a hearing held on 12 October 1994 the applicant requested an adjournment of the case as he had not been given an opportunity, despite his two requests to this effect, to examine the case-file. The applicant further challenged the two expert opinions. As regards the opinion of 30 August 1993, the applicant alleged that the data used by the expert were not correct, that the expert had not taken into account all the relevant facts and that the claimants’ request for access to their plot with a car was not justified. The applicant suggested that the Regional Court should order a second expert opinion on these issues.
The court scheduled another hearing for 21 October 1994 so that the applicant could study the case-file on 13 and 14 October 1994.
On 14 and 19 October 1994 the applicant challenged the presiding judge of the Regional Court. The applicant considered that the judge lacked independence and impartiality as he disregarded the opinion expressed in the Supreme Court’s judgment of 27 June 1990 and since he envisaged to accept the expert opinion of 30 August 1993 which was based on false facts. He also complained that the judge was not willing to order a second expert opinion.
On 25 October 1994 the Supreme Court dismissed the applicant’s request. It considered that a mere objection to the way in which the judge proceeded with the case was not a relevant reason for his exclusion. The Supreme Court noted that the applicant had not substantiated his allegation that the judge was biased. It qualified the applicant’s request as an attempt to interfere with the court’s independence in deciding on the case.
The Supreme Court’s decision was signed by a judge and stated that it was adopted in accordance with Section 16 (1) of the Code of Civil Procedure (see “Relevant domestic law and practice” below). On 13 December 1994 the president of the civil law section of the Supreme Court informed the applicant that the decision of 25 October 1994 had been taken by chamber no. 3Cdo and not by a single judge as alleged by the applicant.
Another hearing before the Regional Court was scheduled for 14 December 1994. The applicant requested that the proceedings be adjourned. He alleged that the case was not ready for adjudication, that the Supreme Court’s decision of 25 October 1994 had not been taken by a chamber as required by Section 16 (1) of the Code of Civil Procedure and that his request of 8 December 1994 to be allowed to consult the case-file had not been granted.
On 14 December 1994 the Regional Court upheld the Bratislava-vidiek District Court’s decision of 28 June 1988 to dissolve the co-ownership of the land and redistributed the ownership of the individual plots so that the claimants could directly accede to their plot. It referred to the conflicts between the claimants and the applicant’s family on this issue and held that such a solution conformed to Section 142 (1) of the Civil Code.
When determining the shares of the owners the Regional Court noted that it was bound by the purchase contract of 17 January 1983 which had been duly registered by a State Notary. According to the contract, the claimant family and the applicant’s family had a title to one third of the property each. For practical reasons, the plot attributed to the members of the claimant family exceeded by 10 square meters their original share and the plot attributed to the members of the applicant’s family exceeded their share by 8 square meters. Both families were therefore ordered to pay a compensation to the other owners who were in agreement. The court further ordered the claimants to pay Slovak korunas (SKK) 9,290 to the applicant’s family as a compensation for a fence and other investments which they had made on the land. The amount of the compensation had been determined by an expert.
The judgment was based on the expert opinion including a geometric plan submitted on 20 August 1993. The Regional Court noted that the opinion conformed to the relevant regulations. The court also referred to its two inspections of the site of 8 November 1988 and 31 March 1992 respectively.
On 2 May 1995 the applicant complained to the president of the Regional Court that the judgment of 14 December 1994 had not been served on him. He alleged a violation of Section 158 (3) of the Code of Civil Procedure. On 6 May 1995 the president of the Regional Court informed the applicant that he had extended the time-limit for drafting the judgment with reasons until the end of May 1995 as the judge originally charged with this task was on a long-term sick leave. The judgment was served on the applicant on 9 May 1995.
On 4 July 1995 the applicant lodged an appeal on points of law with the Supreme Court. He alleged that the Regional Court had not established the facts correctly and that it had decided arbitrarily. In his view, the Regional Court had disregarded a mistake committed by the State Notary when registering the co-owners’ shares on 21 Feburary 1983. The applicant also complained that the expert opinion of 30 August 1993 had been based on false facts, that his request for a second expert opinion had not been granted and that there existed no relevant reasons for granting the claimants access to their plot by a car.
The applicant further alleged that prior to the hearing held on 14 December 1994 the Regional Court had not allowed him to consult the case-file, that his son had not been duly summoned and that the Regional Court’s judgment had been served belatedly. He complained that he had suffered a damage of SKK 59,368 which the Regional Court had not taken into consideration.
The Supreme Court dismissed the appeal on points of law on 20 February 1997. It found that the Regional Court had proceeded in accordance with Section 142 (1) of the Civil Code and that the reasons for its judgment were relevant and sufficient. The Supreme Court noted that the co-owners’ shares had been duly registered by the State Notary in 1983 and found nothing to show that the expert opinion of 30 August 1983 did not conform to the law or was otherwise defective. The failure to order a second expert opinion was not contrary to the applicant’s right to act before the court.
The Supreme Court further established that the damages granted to the applicant’s family had been determined by an expert and that the applicant’s complaint about further damage of SKK 59,368 had not been the subject-matter of the proceedings in question. Finally, the Supreme Court found that the applicant had consulted the file several times and considered it irrelevant that he could not accede to it prior to the hearing held on 14 December 1994.
The applicant lodged a constitutional petition (podnet) in which he alleged a violation of his constitutional right to judicial protection. It was rejected on 8 October 1997. The Constitutional Court found that the applicant’s right to have his case examined by a court was respected.
B. Relevant domestic law and practice
Civil Code
Section 142 (1) gives a court the right to dissolve, at the request of one of the co-owners, a joint ownership and to determine the rights of the persons concerned if the latter fail to reach an agreement on this issue. In doing so, the court shall consider the co-owners’ shares in the property and bear in mind that its use should be effective.
Code of Civil Procedure
Pursuant to Section 16 (1), the decision on a request for exclusion of a judge shall be taken by a chamber of the higher court.
In accordance with Section 44 (1), parties to the proceeding and their representative have the right to consult the case-file with the exception of the records of votes.
Section 127 (1) provides that a court shall appoint an expert after having heard the parties if its decision in a case depends on the assessment of facts requiring special knowledge. Pursuant to Section 127 (2), an expert opinion may be submitted for examination to another expert, a scientific institute or another institution.
In accordance with the relevant case-law (Collection of the judicial decisions and opinions No. 1/1981), experts may also prepare opinions after an agreement with natural or legal persons. The interested persons may then submit such opinions to the courts which should consider them as a documentary evidence.
Under Section 158 (3), a copy of the judgment with reasons should be dispatched within thirty days after its delivery. The court’s president may grant a derogation from this rule provided that it is justified by serious reasons.


ITEMID: 001-92400
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GUBKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 13;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1975 and is currently serving a sentence of imprisonment.
6. On 10 June 1998 the applicant was arrested on suspicion of drug trafficking.
7. On 11 June 1998 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 0.26 grams of opium. On the same day the Prosecutor of the Voroshilovskiy District of Rostov-on-Don remanded the applicant in custody. The Prosecutor referred to the applicant’s criminal record and the risk of his committing other crimes.
8. On 6 August 1998 the applicant was also charged under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code with kidnapping, unlawful entry into a home and extortion. The case was joined to the case concerning drug trafficking.
9. On 10 August, 9 September and 5 November 1998 the applicant’s detention was extended until 10 September, 10 November and 10 December 1998 respectively, in accordance with Article 97 of the RSFSR Code of Criminal Procedure. Consideration had been given to the gravity of the charges against the applicant and information about his personality, including his criminal record.
10. On 1 December 1998 the prosecution dropped the charges of kidnapping, unlawful entry into a home and extortion for lack of proof.
11. On 10 December 1998 the supervising prosecutor approved the bill of indictment and the case against the applicant was sent to the Voroshilovskiy District Court of Rostov-on-Don for trial.
12. On 10 January 1999 the Voroshilovskiy District Court of Rostov-on-Don convicted the applicant under Article 228 § 1 of the Criminal Code and sentenced him to one year’s imprisonment. On an unspecified date the conviction became final. The case file contains no further information as to when the applicant completed his sentence.
13. On 22 March 1999 the Prosecutor of the Rostov Region quashed the decision of 1 December 1998, and on 24 March 1999 the charges under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code were again brought against the applicant. The prosecutor, having considered the applicant’s criminal record and the gravity of the charges, decided that he should be detained pending trial.
14. On 12 April, 18 June, 21 September and 3 December 1999 the applicant’s detention was extended until 18 June, 24 September and 18 December 1999 and 24 March 2000 respectively. Each time, consideration was given to the applicant’s criminal record, the gravity of the charges against him and his active role in a gang.
15. On 20 March 2000 the case against the applicant was sent to the Rostov Regional Court for trial.
16. On 29 March 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged” in accordance with Articles 222, 223 and 230 of the RSFSR Code of Criminal Procedure.
17. On 13 June 2000 the Rostov Regional Court convicted the applicant and sentenced him to ten years six months’ imprisonment taking into account that he had not fully served a sentence handed down by the judgment of 10 January 1999. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”.
18. On 1 December 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged”.
19. On 14 May 2001 the Rostov Regional Court convicted the applicant and sentenced him to thirteen years’ imprisonment, but on 16 January 2002 the Supreme Court of Russia quashed the conviction on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”.
20. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”.
21. On 1 July 2002 the Rostov Regional Court extended the applicant’s detention until 1 October 2002. It found as follows:
“The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes.
They have been in custody: ..., [the applicant] – since 10 June 1998, ...
The Prosecutor requested that the defendants’ detention be extended by 3 months.
Having examined the Prosecutor’s request, having heard the parties to the proceedings, the court considers it necessary to extend the defendants’ detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences.
Under Articles 255, 256 of the Russian Code of Criminal Procedure, the defendants’ detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.”
22. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified.
23. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant’s detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the above decisions was identical to that applied in the decision of 1 July 2002.
24. The applicant appealed against each of the above extension orders to the Supreme Court arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above decisions on appeal.
25. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant’s detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court.
26. On 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia discontinued the examination of the applicant’s appeal because he had been convicted in the meantime by the Regional Court.
27. In addition to appealing against the detention extension orders the applicant on a number of occasions in 2003-2004 applied to have the preventive measure changed to a written undertaking not to leave the town. Among his arguments were the rather extended period of time he had spent in detention, his family ties (two minor children and a disabled mother) and his poor health.
28. On 17 February, 21 June, 25 December 2003 and 2 February and 5 February 2004 the Rostov Regional Court dismissed the applicant’s requests. The court’s reasoning was the gravity of the charges against him. The applicant appealed against all of these decisions to the Supreme Court.
29. In one decision of 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia rejected all the appeals as follows:
“The defendants [the applicant and four other persons] are charged with various crimes, including particularly serious crimes.
In the course of the proceedings the court dismissed the above requests.
In their appeals the defendants and lawyers ask for the above decisions to be quashed.
Having examined the material and the arguments put forward in the appeals, the court finds that the appeal proceedings are to be discontinued, since at the present time the examination of the case has been completed by the pronouncement of the sentence ...”
30. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on forty-two occasions. In particular, five hearings were adjourned at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; fourteen hearings were adjourned due to requests by the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; fifteen hearings were adjourned due to the illness of the representatives and their failure to appear before the court, and eight hearings were adjourned due to the illness of the co-defendants or following their complaints concerning their health.
31. On 17 May 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., convicted the applicant of fraud, kidnapping, extortion, robbery, deprivation of liberty, unlawful entry into a home and stealing official documents, and sentenced him to eleven years and six months’ imprisonment.
32. On 10 March 2005 the Supreme Court of Russia comprising three judges upheld the judgment on appeal, but reduced the applicant’s sentence to eleven years’ imprisonment. One of the judges of the Supreme Court had previously examined the applicant’s case on appeal on 2 November 2000 (see paragraph 17 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant’s detention until 26 September 2003 (see paragraphs 23-24 above). One other judge had previously examined the applicant’s case on appeal on 16 January 2002 (see paragraph 19 above).
33. As indicated above the applicant was arrested on 10 June 1998. From 15 June 1998 to 25 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in twenty-three different cells.
34. According to the Government’s observations of 12 December 2007, the cells where the applicant was held measured from 6.6 square metres (the punishment cell) to 61.2 square metres, and provided an average space of between three and four square metres per person. The design capacity of the cells was not exceeded.
35. Windows in the cells, measuring 1-1.2 by 1.1-1.3 m., were covered with white-painted metal screens, which were removed in December 2002. The cells were illuminated with 60-75 watt filament lamps.
36. All cells were ventilated by a system of exhaust ventilation. In the summertime the window panes were removed in order to provide better access to fresh air. The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature during the summer was maintained at 22 degrees Celsius, and during winter at 18 degrees Celsius.
37. The cells were equipped with wash basins, hot and cold water taps and lavatory pans elevated 35 cm above the floor and separated from the main area by a two-metre-high brick partition. The arrangement of lavatory pans assured the detainees privacy when using them.
38. The cells were equipped with potable water tanks. The quality of the drinking water was regularly checked by the facility’s medical staff. Besides, the detainees were allowed to use electric kettles.
39. In each cell the applicant had an individual bed and was provided with bedding (a mattress, a blanket, a pillow, two bed sheets and a pillow slip).
40. The cells were also equipped with cupboards for food storage, tables and benches.
41. The applicant could take a fifteen-minute shower once a week. After each shower, he received fresh bedding. He was given food three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility. On the days when the applicant was taken to court, hot food was delivered to the courthouse.
42. The applicant was allowed a daily one-hour outside walk. The exercise yards were equipped with benches and shelters.
43. The authorities ensured that regular and additional one-off disinfections and disinfestations were carried out in the detention facility.
44. Upon admission to the detention facility the applicant was examined by a general practitioner, psychiatrist and surgeon, who found his health to be satisfactory. During the detention period the applicant made requests for medical assistance on several occasions, complaining of headaches and general weakness. Following the medical check-ups he always received appropriate treatment. In January 2001 the applicant complained of an earache and was diagnosed with left-side exudative pleurisy. From 23 January to 22 February 2001 he received treatment in the prison hospital.
45. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 22 October and 26 October 2007, 26 May and 27 May 2008, an uncertified and undated table on the number of persons detained in different cells at the same time as the applicant in March 2002–April 2005, the results of a laboratory examination of the microclimate of the cells (illumination, temperature, relative air humidity and air circulation), the results of bacteriological tests following water and sanitary inspections of the detention facility conducted in 20012005, statements by wardens (although not dated) and persons currently detained in IZ-61/1, a copy of the applicant’s prison card stating that he had been provided with bed sheets, cutlery and clothes, as well as a number of certificates concerning the food ration during the relevant period.
46. The applicant did not dispute the size of the cells as submitted by the Government. He claimed, however, that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts.
47. The windows in the cells were either heavily barred (cells nos. 44, 48, 43, 42, 50, 76 and 52), or covered with metal screens (cells nos. 39 and 124), or entirely absent (cells nos. 8, 76 and 74). The metal screens were still in place in 2003.
48. The arrangement of the bunks in two or three tiers left the detainees very limited space and access to daylight. The artificial light in the cells was on around the clock, and disturbed the applicant’s sleep.
49. The lavatory in the corner of the cell, which had no flush system, was elevated above the floor and separated by a 1.1-metre partition from the wash basin, but not from the living area. The latter two standards had been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971.
50. The applicant was never provided with any toiletries.
51. On the days when the applicant was taken to the courthouse he received no food, since he was taken from his cell before breakfast and brought back after dinner. No food (hot meal or dry ration) was served to the applicant in the courthouse. On such days the applicant was also deprived of outside walks and showers.
52. The exercise yard was very small and unequipped for physical exercise. The walls of the yard were covered with “shuba”, a sort of abrasive concrete lining designed to prevent detainees from leaning against them.
53. The cells swarmed with cockroaches and bedbugs. Occasionally the detainees were taken to the “blind” cell no. 106 (with no windows, lavatory or water taps) except for two or three of them who stayed behind and treated the cell against bedbugs using a heating lamp or a torch made of newspapers, and against cockroaches using cockroach poison sent to the detainees by their relatives.
54. In support of his statements the applicant produced written depositions by three former cellmates, Mr A.R., Mr Y.T. and Mr Y.R. They stated, in particular, that in 2001-2004 cell no. 41, measuring approximately 30 square meters, had housed 45 to 50 inmates at any one time (Mr A.R.’s deposition), and that in 2002-2004 cell no. 46, measuring approximately 40 square meters, had housed over 30 inmates (Mr Y.T.’s deposition) or as many as 85 (Mr Y.R.’s deposition). They also testified that they and the other detainees had slept in shifts.
55. The Government did not contest that the applicant’s former cellmates were held in the same detention facility as the applicant.
56. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).
57. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP).
58. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).
Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96).
The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
59. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP).
60. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.
61. The Codes distinguished between two types of detention: the first being “pending the investigation”, that is while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
62. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP).
63. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP).
64. Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months.
65. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97).
66. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”).
67. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence.
68. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file and to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
69. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1).
An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 76 below) (Article 331 in fine).
70. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10).
71. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP).
72. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
73. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 76 below).
74. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing.
75. The duration of the trial is not limited.
76. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374).
77. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15).
78. The new CCrP does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)).
It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1).
79. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows:
Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004.
Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing.
80. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
81. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-75191
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HASAN DOGAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until October 1993 the applicants lived in İskender, a hamlet of the Sığınak village, in the district of Lice, in Diyarbakır, where they own property. It is to be noted that the documents attesting ownership of property, which Mr Paşa Doğan, Mr Mehmet Şirin Damla, Mr Gazi Damla and Ms İkram Damla used in İskender, bear their fathers’ names.
In October 1993, following the incidents that took place in the district of Lice on 22 and 23 October, security forces arrived to İskender and forcibly evicted the applicants from their hamlet.
On 2 February 2000 the village mayor (muhtar) of Sığınak, Mr Kemal Arslan filed a petition with the Ministry of Public Works and Settlement and requested the Ministry to solve the problems of infrastructure of the hamlet. He further informed it that the inhabitants of İskender were willing to return to their hamlet.
He received no response to his petition.
On an unspecified date three Members of Parliament, Mr Nurettin Dilek, Mr Sebgetullah Seydaoğlu and Mr Haşim Haşimi sent petitions to the Prime Minister, the Deputy Prime Minister, the Minister of the Interior, the Minister of Public Works and Settlement, the State of Emergency Regional Governor and the Diyarbakır Governor requesting help on behalf of the inhabitants of the villages of the Lice district for them to return to their villages.
In summer 2001 the applicants returned to İskender as the disturbances in the region had come to an end.
On 12 October 2001 the Tepe Gendarmes Station Command informed the applicants that access to the hamlet was prohibited and that they had to leave the village in three days. The gendarme officers further threatened and insulted the villagers.
On 15 October 2001 the applicants left the hamlet.
On 16 October 2001 one of the applicants, Mr Abdullah Doğan filed a petition with the Ministry of the Interior and the Governor’s office in Diyarbakır, on behalf of the forty-four families of İskender. In his petition Abdullah Doğan stated the above-mentioned incidents and requested permission to return to their hamlet.
On 13 November 2001 the Lice District Governor sent the following response to Mr Abdullah Doğan:
“...Your petition containing a request of permission to return to the İskender hamlet of the Sığınak village has been considered. It is appropriate to return to Sığınak as the infrastructure of İskender is damaged, since the hamlet has been uninhabited for long time...”
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-82953
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LISNYY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1936 and lives in Lviv.
5. In 1981 the applicant was convicted of speculating in gold and sentenced to a term of imprisonment. In 1992 his conviction was annulled as unlawful. Subsequently the applicant instituted civil proceedings, seeking various kinds of compensation for his unlawful conviction and punishment.
6. On 24 February 1998 the Khust Court (Хустський районний суд Закарпатської області) awarded the applicant 3,350.55 hryvnyas (UAH) against the Ministry of Finance (“the Ministry”; Міністерство фінансів України) in compensation for his loss of income while in detention.
7. This judgment became final and on 3 June 1998 the bailiffs instituted enforcement proceedings. They submitted the enforcement writ to the Ministry of Finance, which redirected it to the State Treasury (Державне Казначейство України).
8. On 18 November 2003 the enforcement writ was returned to the applicant unenforced.
9. On 13 May 1999 the Khust Court awarded the applicant UAH 7,281.70 against the Khust State Treasury Department (“the Khust Treasury”; Відділ Державного казначейства в Хустському районі Закарпатської області) in compensation for the gold confiscated from him following his conviction. This decision became final.
10. On 12 November 2002 the Khust Treasury informed the applicant that it could not make the payment without the command of the bailiffs. In connection with this, the Khust Treasury had transferred the applicant's request for enforcement and a copy of the judgment to the bailiffs and had requested the Khust Court to transfer the enforcement writ thereto.
11. On 5 March 2003 the Khust Court informed the applicant that it had never issued the enforcement writ as the applicant personally had never requested the court to do so.
12. The judgment of 13 May 1999 remains unenforced.
13. On 2 April 2002 the Lychakivsky District Court of Lviv awarded the applicant UAH 2,000 against the State Treasury in moral damages for a delay in the enforcement of the judgment of 24 February 1998.
14. This decision became final in October 2002 and on 9 December 2002 the enforcement proceedings were instituted. On several occasions the Treasury informed the applicant that the judgment award could not be paid on account of the lack of budgetary allocations.
15. On 26 January 2004 the Lviv Regional Court of Appeal (“the Regional Court”; Апеляційний суд Львівської області) gave the applicant, who sought to obtain a higher amount of compensation, leave to appeal against the judgment of 2 April 2002 out of time.
16. On 15 March 2004 the Regional Court, following the applicant's appeal, reviewed the facts of the case in their entirety and quashed the judgment of 2 April 2002. The court rejected the applicant's claims against the Treasury as lacking statutory basis under domestic law. On 25 September 2006 the Supreme Court rejected the applicant's request for leave to appeal in cassation.
17. The applicant made several unsuccessful attempts to institute civil proceedings against various authorities, seeking compensation for the delays in the enforcement of the judgments in his favour.
18. The relevant domestic law is summarised in the judgment of Volosyuk v. Ukraine (no. 60712/00, §§ 20-24, 29 June 2006).


ITEMID: 001-57849
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF DARNELL v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland;N. Valticos;B. Walsh
TEXT: 6. The applicant, Dr Royce Darnell, who was born in 1929, has been unemployed since the Trent Regional Health Authority ("the RHA") terminated his employment as a consultant microbiologist and Director of the Public Health Laboratory in Derby. This case concerns the length of time that proceedings relating to this dismissal have taken.
7. Following administrative changes in the National Health Service in 1977, management problems arose in many regions including the Trent RHA. As a result of differences over staff appointment procedures, in October 1979 a local grievance procedure was initiated against Dr Darnell before the Area Health Authority ("the AHA") by the Association of Scientific, Technical and Managerial Staffs.
Although Dr Darnell was considered by the British Medical Association’s legal department to have been acting within the terms of the Government’s guidelines in Health Service Circular (IS) 16, the AHA endorsed the new appointments procedure.
8. Following further disagreement, a formal complaint was made in December 1980 by the AHA to the Trent RHA alleging non-compliance with laboratory staff appointment procedures. Dr Darnell was informed by letter of 19 March 1981 that a sub-committee had been set up to deal with the AHA’s formal complaint.
After various investigations had been carried out, a disciplinary procedure under circular HM (61) 112 was instituted against Dr Darnell by the Trent RHA. By letter of 25 June 1982 he was suspended from duty pending the outcome.
9. After attempts to settle the case had failed, a panel of inquiry sat for thirty-two days between June and August 1983. It reported in December that the applicant was at fault in certain respects.
A sub-committee subsequently appointed by the Trent RHA recommended that Dr Darnell’s employment as a consultant microbiologist be terminated. Accordingly, by letter of 16 May 1984 from the Trent RHA, the applicant was dismissed on three months’ notice with effect from 19 August 1984.
10. The applicant appealed to the Secretary of State against his dismissal on 23 May 1984. A professional committee was appointed in accordance with paragraph 190 of the Terms and Conditions of Service of Hospital Medical and Dental Staff. The paragraph 190 procedure has since been replaced by a new procedure which incorporates time-limits into the various stages of an appeal to the Secretary of State against dismissal.
After holding a hearing on 14 May 1985, the professional committee reported to the Secretary of State who, in September 1985, sought further information.
11. The Secretary of State directed the RHA to offer Dr Darnell a new post in the region without managerial responsibility. In reaching this decision the Secretary of State had noted that the professional committee had been very critical of the handling of the case.
The RHA challenged this direction. The applicant was informed by the Department of Health and Social Security ("the DHSS") that in view of the unavailability of alternative employment, the case had been remitted to the Secretary of State who, not being bound by the professional committee’s recommendation to allow the appeal, had decided that the termination of Dr Darnell’s services in accordance with the paragraph 190 procedure should be confirmed.
12. By judicial review proceedings commenced in the High Court on 24 April 1986, the applicant challenged the fairness of the procedure leading to the Secretary of State’s decision. The High Court granted a declaration that this decision was invalid and indicated that the Secretary of State should reconsider the matter. The Secretary of State did not appeal.
13. On 25 October 1986 the applicant informed the DHSS that he now sought a further paragraph 190 hearing. An exchange of correspondence took place. The DHSS attempted to convoke an ad hoc committee meeting, but this was cancelled as the applicant refused to accept such a compromise. On 29 February 1988, having proceeded on the basis of the written material which included further written submissions, the Secretary of State decided to confirm the applicant’s dismissal.
Accordingly, by letter of 18 March 1988, the DHSS informed the applicant that, on the basis of the professional committee’s report of 25 July 1985 and the written submissions made by Dr Darnell and the Trent RHA, re-employment was not a possibility and termination of his services was effective from the date of that letter.
14. The applicant’s application for judicial review of the validity of the Secretary of State’s direction was dismissed on 3 November 1988.
15. In the meantime, the applicant had also sought reinstatement, re-engagement and damages for dismissal by proceedings in the Industrial Tribunal. Two applications had been made to the Tribunal, the first on 10 August 1984 following his dismissal in May of that year and the second in May 1986 following the Secretary of State’s initial rejection of his appeal against dismissal. These proceedings had been stayed from time to time at the applicant’s request, pending the results of the appeal to the Secretary of State and the judicial review proceedings.
In November 1988, the second Industrial Tribunal application was revived and the first was subsequently withdrawn. A pre-hearing assessment took place on 6 February 1989 in which the Tribunal determined that a hearing could take place with no cost consequences to the applicant.
In its reserved decision of 23 February 1990, the Tribunal held that the dismissal of the applicant was not unfair. It had not been persuaded that the applicant had in any way been prejudiced by the time which had elapsed until a decision was finally reached. He had been paid his salary in full until March 1988.
16. The applicant’s appeal to the Employment Appeal Tribunal was dismissed on 8 April 1993.
17. In June 1988 a separate action in the High Court claiming damages for the applicant’s suspension from work in June 1982 pending the outcome of the disciplinary procedure was struck out as it disclosed no reasonable cause of action. An appeal against the striking out was dismissed in 1990.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1