ITEMID: 001-87562
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LIMASOVY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicants are husband and wife. They were born in 1965 and live in Novokuznetsk.
5. In 1993 both applicants subscribed to a State savings scheme for buying cars. The State failed to provide the cars, and the applicants had to sue the Government.
6. On 1 April 2003 the Ust-Yansk District Court of Yakutia gave two judgments and awarded the ﬁrst applicant 90,610.72 Russian roubles (“RUB”), and the second applicant RUB 108,654.15. These judgments became binding on 30 April 2003, but were not enforced immediately. On the Government's request, on 14 October 2004 the Presidium of the Supreme Court of Yakutia quashed the judgments and dismissed the applicants' claims on the ground that the district court had misinterpreted material laws.
7. In 2005 the ﬁrst applicant again sued the Government for the undelivered car's price.
8. On 13 May 2005 the district court awarded the first applicant RUB 108,757.91. This judgment became binding on 24 May 2005. On the Government's request, on 18 May 2006 the presidium quashed the judgment and dismissed the ﬁrst applicant's claims on the ground that the district court had misinterpreted material laws.
9. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
10. The Code of Civil Procedure of 14 November 2002 defines the supervisory-review procedure as follows:
“1. Judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
“1. Having examined the case by way of supervisory review, the court may...
(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-5367
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BOONS v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: The applicant is a Dutch national, born in 1959, and was detained at the time of the introduction of the application. He is represented before the Court by Mr G. Spong, a lawyer practising in The Hague.
A.
In its judgment of 22 May 1995, the Regional Court (Arrondissementsrechtbank) of s’-Hertogenbosch convicted the applicant of homicide and of hiding and/or removing a body with the aim to conceal the fact and/or the cause of death. It sentenced the applicant to six years’ imprisonment. In addition, it ordered the measure that the applicant be placed at the Government’s disposal (terbeschikkingstelling) in order to receive mental treatment at the Government’s expense. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of ‘s-Hertogenbosch. The prosecution did not appeal.
On 2 April 1996, following adversarial proceedings, the Court of Appeal delivered its judgment in public. With the exception of the qualification and the determination of sentence, the Court of Appeal upheld the judgment of 22 May 1995. It convicted the applicant of homicide and of hiding and removing a body with the aim to conceal the fact and/or the cause of death. The Court of Appeal sentenced the applicant to eight years’ imprisonment. It further ordered the measure that the applicant be placed at the Government’s disposal.
As regards the determination of the applicant’s sentence of imprisonment, the Court of Appeal stated:
<Translation>
“In the court’s opinion another or lighter sanction than a punishment which entails unconditional deprivation of liberty of a duration stated hereinafter does not suffice. On this point, the seriousness of what has been found proven in relation to other punishable facts as, inter alia, expressed by the statutory defined maximum punishment for this and by the punishments imposed for similar facts, has been taken into account.
The court is of the opinion that a punishment as imposed by the first instance court and as sought by the procurator-general does not suffice in that it insufficiently expresses;
- the fact that the victim M. was a girl of just fifteen years old and the fact that she was related to the accused;
- the extent to which the facts found proven caused personal suffering in the victim’s family circle and to extent to which society has been rocked;
- the violent character of what has been found proven and the social unrest of which this is also a consequence.”
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). Relying on Article 6 of the Convention, he complained, inter alia, that it did not appear from the judgment of the Court of Appeal whether or not it had decided unanimously to increase his sentence. He submitted that, pursuant to Article 424 § 2 of the Code of Criminal Procedure (Wetboek van Strafvordering), such an increase could only be decided unanimously by the Court of Appeal. In his opinion, a convicted person should be able to verify whether this rule had in fact been respected.
The Procurator-General (Procureur-Generaal) to the Supreme Court, in his advisory opinion to the Supreme Court, considered on this point that it cannot be derived from the Strasbourg case-law under the Convention that there is an obligation that judgments must reflect whether the rule set out in Article 424 § 2 of the Code of Criminal Procedure has been respected. In his opinion, it concerns a rule of domestic procedural law and it is to the domestic legislator to decide whether and, if so, to what extent compliance with this rule must be apparent. Although the Procurator-General agreed with the applicant that it would be desirable that the Court of Appeal, in a situation referred to in Article 424 § 2, would make it clear in its judgment that an increase of sentence had been decided unanimously. However, he did not consider that a failure to do so should result in nullity of the judgment concerned. In his opinion, there was insufficient reason for departing from the established case-law. On this point, he found that - given the explicit reasons stated for the increase of sentence - there were no reasons to doubt whether the Court of Appeal had unanimously decided to increase the applicant’s sentence.
In its judgment of 20 May 1997 and referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the Supreme Court rejected the applicant’s appeal in cassation as not prompting a determination of legal issues in the interest of legal unity and legal development.
B. Relevant domestic law and practice
With the exception of Article 472 § 2 of the Code of Criminal Procedure, which concerns decisions of the Supreme Court in relation of revision requests, there is no explicit statutory general rule in Dutch law to the effect that judicial decisions must be taken by a majority. This principle is considered to be inherent in the Dutch judicial system insofar as cases are not determined by a single judge.
A reference to judges’ deliberations is contained in Article 26 § 1 of the Judicial Organisation Act, pursuant to which provision the President of a chamber of the court must, during the judges’ deliberations, ask each of the judges individually to state his or her opinion. The President will be the last person to state his or her opinion. According to Article 26 § 2, each of the sitting judges must participate in the decision making.
However, according to Article 424 of the Code of Criminal Procedure, a unanimous decision of the judges concerned is required in three specific situations, including the situation described in paragraph 2 of this provision, which reads:
<Translation>
“Where only the accused has filed an appeal, he can - as to what has been found proven against him in the first instance proceedings - only by a unanimous vote be given a higher sentence than the sentence given by the first instance court.”
Article 424 § 2 of the Code of Criminal Procedure stipulated initially that, where only the accused had filed an appeal, no higher sentence could be imposed. This protection did, however, not apply where the appeal court reached different findings than the first instance court in relation to what facts were considered proven (bewezenverklaring). As it was felt incompatible with the public law character of criminal proceedings to restrict the appeal judge in the assessment of the seriousness of the offence of which an accused had been found guilty, this provision was amended on 29 November 1935 to its current wording.
In two cases, the Supreme Court rejected a complaint that the unanimity required under Article 424 § 2 of the Code of Criminal Procedure did not appear from the wording of the judgment of the Court of Appeal. The Supreme Court held that there is no statutory provision to the effect that an appeal judgment must explicitly mention that the requirement under Article 242 § 2 has been respected (Hoge Raad 15 February 1972, Nederlandse Jurisprudentie 1972, nr. 240; and HR 10 January 1978, NJ 1978, nr. 629).
Article 101a of the Judicial Organisation Act provides:
<Translation>
“If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point.”


ITEMID: 001-58075
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF BIZZOTTO v. GREECE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (six month period);Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-1
JUDGES: C. Russo;N. Valticos
TEXT: 6. On 4 March 1990 Mr Bizzotto was arrested in transit at Athens Airport while in possession of 3.5kg of cannabis which he had purchased in Islamabad (Pakistan) for 1,000 US dollars. He was detained pending trial in Korydallos Prison, Athens.
7. On 6 May 1991 the Athens Court of Appeal, sitting as a first-instance criminal court with three judges (Trimeles efetio kakourgimaton), held as follows (in judgment no. 986/1991):
"The Court finds the defendant guilty of having deliberately and as a drug addict (a) purchased in Islamabad, Pakistan, on 1 March 1990 approximately 3.5kg of Indian hemp from persons unknown for the sum of 1,000 US dollars (b) brought the said cannabis from Karachi (Pakistan) to Athens by plane on 4 March 1990, (c) imported it into Greece on 4 March 1990 and (d) had it in his possession, wrapped in the lining of an anorak, at Athens Airport on 4 March 1990. The stratagems the defendant used to hide and transport this cannabis, the ease with which he travelled on several occasions to Pakistan, Thailand and other eastern countries and obtained cannabis in Pakistan, the connections which he has in that country, his knowledge of how strict customs security measures are in different countries, his previous convictions for drug-related offences, and the large quantity of cannabis he purchased for resale, show him to be particularly dangerous."
It sentenced him to eight years’ imprisonment and a fine of two million drachmas. In addition, it suspended his civic rights for five years and ordered that he be permanently prohibited from re-entering the territory after his release. Lastly, it ordered his placement in an appropriate centre to receive treatment for his drug addiction (under section 14 of Law no. 1729/1987 - see paragraph 15 below).
8. On 22 October 1992, on an appeal by the applicant, the Athens Court of Appeal sitting with five judges (Pentameles efetio) upheld the judgment of the court of first instance (see paragraph 7 above) but reduced the sentence to six years’ imprisonment and a fine of one million drachmas (judgment no. 1003/1992). It also ordered "the defendant’s placement in an appropriate prison or in a State hospital where he can receive treatment for drug addiction".
However, Mr Bizzotto was never admitted to any such institution; he served his sentence in Patras Prison.
In a letter of 26 November 1992 the public prosecutor notified the governor of Patras Prison of the Court of Appeal’s decision and indicated that the part of the judgment dealing with the applicant’s placement in a prison with medical facilities did not apply as no such institutions existed. However, he added that he would contact the governor if such an institution opened before Mr Bizzotto finished serving his sentence.
9. While detained at Patras Prison the applicant made four applications to the Patras Criminal Court (Trimeles plimmeliodikio) to be released on licence; three of them were made before the Athens Court of Appeal sitting with five judges had delivered its judgment (see paragraph 8 above).
10. In his first application, made on 4 December 1991, Mr Bizzotto maintained that he had been cured and had ceased to be at all dependent on drugs during his long stay in prison and after medical treatment. He also stated that he had a wife and family, that he owned a profitable farm in Italy and that he was determined not to reoffend in future. He requested his release on licence under section 23 of Law no. 1729/1987 (see paragraph 15 below).
In a decision (no. 595/1992) of 3 February 1992 the Patras Criminal Court dismissed the application.
It began by noting that it was objectively impossible to admit drug addicts to treatment centres as no such centres existed.
It added:
"It is apparent from sections 14 and 23 of Law no. 1729/1987 ... that a person who has been convicted under that Law and has been found to be a drug addict must be placed in an appropriate prison or in a State hospital for special treatment. The placement cannot last for less than a year. During the period of treatment, the convicted person is examined periodically in order to establish whether he has been cured or whether the placement must continue. Periodic reviews begin after one year and are carried out by the court either of its own motion or on an application by the prosecution. If the court ... considers - after studying the relevant expert’s report - that the accused has been cured, it orders his discharge from the centre; if the term of imprisonment to which he has been sentenced is longer than the period of treatment, the prisoner is returned to prison to serve the remainder of his sentence. In that case, if the court considers that there is no serious reason why the prisoner should serve the remainder of his sentence, it orders his release on licence. ... Persons who have become habitual users of drugs and are unable to give up the use of them voluntarily - in other words `drug addicts’ - are patients and are treated as such under section 23. It is to be noted that the Greek legislation in force ... does not use the scientifically accepted term of `drug addict’ but the expression `user of narcotic substances subject to special treatment’ (section 13 (1) of Law no. 1729/1987) ... The release on licence of persons convicted under Article 105 of the Criminal Code should not be confused with the discharge of convicted drug addicts under the provisions of section 23 of Law no. 1729/1987. In the first case the aim pursued is solely that of rehabilitation, whereas in the second case it is also therapeutic ... For an application to this end by a convicted person to be admissible it is a prerequisite that (a) he has been placed in a centre to receive treatment for drug addiction and (b) he has spent at least one year in such a centre and is considered cured ... A problem arises where a convicted person has never been admitted to such a centre. In that case, section 23 does not apply, because the procedural requirement will not have been satisfied. Such a person is deprived of his right to make such an application, which will accordingly be inadmissible. This is not affected by his alleged recovery in prison while serving his sentence. The fact that the prison psychiatrist has certified that he has been cured is of no avail. On the other hand, it raises serious questions and doubts as to the objectiveness of the findings in the psychiatric reports made during the investigation and taken into account by the relevant courts. Although these persons are described as ‘drug addicts’ ... in these reports, within a few months they are regarded as ‘completely cured’ after non-existent treatment and merely taking aspirin or Hypnostedon.
...
Besides, the essential requirements for an application to be admissible are that the convicted person has made a full recovery and that there is no serious reason why he should serve the remainder of his sentence. ... In order to make a finding that there is a ‘serious reason’, it is necessary to have regard to the criteria laid down in Article 106 para. 1 of the Criminal Code. It appears from the case file that the applicant does not satisfy the essential conditions laid down by law, in particular as regards his complete cure. In view of his antecedents ... and character, it is unlikely that the applicant will lead an honest life on leaving prison as he shows a marked tendency to commit drug-related offences."
11. On 5 February 1992 the applicant made a second application for release on licence, in which he essentially repeated the same arguments as he had put forward in the first (see paragraph 10 above).
On 27 February 1992 the Patras Criminal Court dismissed the application (in decision no. 1119/1992) in the following terms:
"The court is not convinced either from the documentary evidence or from the applicant prisoner’s personal attendance before it that he is totally cured of his dependence on drugs. He has not been admitted to an appropriate treatment centre and the treatment in Patras Prison is insufficient to cure him of an addiction acquired over a very long period of drug use. In addition, no prison psychiatrist’s certificate as to the progress of his treatment has been produced ..."
12. On 4 March 1992 the applicant made a third application, supported by psychiatric certificates of his recovery. He sought to benefit from the provisions of section 23 of Law no. 1729/1987 (see paragraph 15 below).
At the hearing he admitted that he had "been taking drugs" since the age of 19 and had even taken heroin in the past. However, he said that he had managed to cure himself of his drug addiction whilst in prison, where conditions were not conducive, and added that, if his imprisonment were to continue, his condition would get worse.
In a decision (no. 2694/1992) of 27 May 1992 the Patras Criminal Court reached the following conclusions:
"The prison doctor’s diagnosis is not sufficient to prove that the applicant has recovered. The latter’s application is inadmissible since he has not been admitted to an appropriate prison similar to the psychiatric clinic at Korydallos Prison. Furthermore, at the time of the application the applicant had served two years, one month and twenty-six days of his sentence and there is a serious reason for his serving the remainder, especially as his criminal record shows that in 1974 he was sentenced by the Athens Assize Court to three years’ imprisonment for a drug-related offence."
13. In a letter of 9 June 1993 the Minister of Justice, replying to an application by Mr Bizzotto to be placed in a treatment centre for drug addicts, informed him that there was no such centre inside the prison.
14. On 15 December 1993 the applicant made a fourth application for his release on licence, relying on Articles 105 and 106 of the Criminal Code (see paragraph 16 below). He said that he had served three-fifths of his sentence and had been of exemplary conduct throughout his time in prison. He was no longer addicted to drugs and was therefore no longer a danger to society; his continued detention would be harmful to him and could no longer be justified.
On 11 February 1994 the Indictments Division (Symvoulio plimmeliodikon) of the Patras Criminal Court granted his application. It found that he had already served four years and fourteen days of his sentence - that is to say more than half of the sentence imposed and more than the one-year minimum (Article 105 of the Criminal Code) - and that during his time in prison he had been of good conduct, had shown repentance, had complied with prison regulations and had not incurred any disciplinary penalties.
15. The relevant provisions of Law no. 1729/1987 are as follows:
"(1) The prevention of pharmaceutical dependence on narcotic substances within the meaning of section 4 of this Law shall be organised at three levels:
(a) preventive information;
(b) treatment;
(c) reintegration into society.
(2) For the purposes of implementing this programme, there shall be set up by joint decisions, published in the Official Gazette, of the Minister of Health, Welfare and Social Security and the Minister competent in each given case:
(a) ...
(b) special drug-addiction units and prisons with medical facilities;
(c) ..."
"(1) A term of imprisonment of at least ten years and a fine of between 100,000 and 100,000,000 drachmas shall be imposed on anyone who:
(a) imports or exports drugs or causes them to transit through Greece;
(b) sells or buys drugs or makes them available in any way whatsoever to third parties or acts as an intermediary or stores drugs or puts drugs into storage;
...
(g) possesses or transports drugs in any manner and by any means whatsoever, either on Greek territory or alongside or across territorial waters or in Greek airspace; ..."
"Anyone who commits any of the offences referred to in sections 5, 6 and 7 shall be liable to life imprisonment if he is a reoffender or if he acts by way of occupation or habitually or if he has acted with a view to causing minors to use drugs or if the circumstances in which the offences were committed show him to be particularly dangerous."
"(1) Anyone who solely for their own use obtains or possesses by any means whatsoever a small quantity of drugs or uses drugs shall be liable to imprisonment. The sentence shall be served in a special prison with medical facilities.
"(1) Persons who have become habitual users of drugs and cannot give up the use of them voluntarily shall receive special treatment in accordance with the provisions of this Law.
(2) The court shall determine whether the conditions referred to in the preceding subsection are met in the case of the accused or convicted person after an examination at a specialist treatment centre for drug addicts ...
(3) An offender to whom all the conditions set out in subsection (1) apply shall, if found guilty of
(a) the offence under section 12 (1), not be punished, but will be subject to the application mutatis mutandis of the provisions of the second paragraph of section 14 (1) of this Law;
(b) the offences referred to in sections 5, 6 or 7, be liable to at least three months’ imprisonment and a fine of between 50,000 and 10,000,000 drachmas; ...
(c) the acts referred to in section 8, be liable to a maximum of ten years’ imprisonment and a fine of between 1,000,000 and 200,000,000 drachmas."
"(1) Any offender in respect of whom the conditions set out in section 13 (1) and (2) of this Law are met and who has been detained pending trial in accordance with the Code of Criminal Procedure or who has been convicted of any offence whatsoever shall be placed in an appropriate prison with medical facilities. If he is held not to be criminally responsible under Article 34 of the Criminal Code, he shall be placed in a State hospital. In both cases he shall be subject to a special treatment programme determined by the Minister of Health, Welfare and Social Security.
(2) Where a person is sentenced to a term of imprisonment, any time spent in hospital shall be reckoned as time served in prison."
"(1) If an offender’s period of hospitalisation under section 14 exceeds one year, which is the minimum period of treatment, the head of the institution in which he has been placed shall at the end of each year make a report on the progress of his treatment to the public prosecutor at the Criminal Court for the place where the sentence or preventive measure is to be carried out and shall indicate whether the convicted person should remain in the institution. On the basis of this report the Criminal Court, sitting with three judges, shall decide whether detention should continue. The court, which may also order an expert’s report under section 13 (2), shall make a final decision whether detention in hospital should continue.
(2) If a person detained in a hospital has recovered and was found not to be criminally responsible under Article 34 of the Criminal Code, the court shall order his release on an application by the public prosecutor. If part of his sentence remains to be served, the court shall decide whether there is a serious reason why he should serve the remainder, but otherwise shall order his release on licence. The conditions attached to his release may concern his way of life, and in particular his place of residence, and include an obligation to attend the clinic, special drug-addiction centre or general hospital nearest to his place of residence whenever requested to do so for the purposes of checking that the conditions are being complied with ...
(3) If the person detained is not released under the preceding subsection, the court shall decide at the end of each year, on application by the detained person himself, the director of the institution in which he is detained or the public prosecutor, whether he should be released.
..."
16. Articles 105 para. 1 and 106 of the Criminal Code provide:
"Anyone who has been sentenced to a term of imprisonment may, after serving two-thirds of his sentence and in any event at least one year or, in the case of a life sentence, twenty years, be released on licence in accordance with the following provisions."
"(1) A prisoner shall only be released on licence if he has been of good conduct while serving his sentence, has performed as far as possible his obligations towards the victim ... and if his antecedents, his personal and social circumstances in general and his character ... give cause for hope that he will lead an honest life in the future.
(2) The prisoner may be required to comply with certain obligations relating to his way of life and in particular his place of residence. These obligations may at any time be withdrawn or varied on application by the prisoner.
..."
17. Article 565 of the Code of Criminal Procedure provides:
"Doubts as to the nature or length of the sentence Any doubt or objection as to the execution of the judgment or as to the nature or length of the sentence shall be decided by the Criminal Court for the district where the sentence is to be served. The public prosecutor or the convicted person may appeal to the Court of Cassation on points of law against such a decision."
18. In a circular of 23 September 1992 the Minister of Justice informed the public prosecutors at the courts of appeal and the courts of first instance and prison governors that there were no prisons with medical facilities in Greece as mentioned in section 14 of Law no. 1729/1987. Consequently, it was not possible to implement court orders directing that drug addicts be placed in such prisons under that section.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-115183
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TUNARU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Constantin Lucian Tunaru, is a Romanian national who was born in 1956 and lives in Ţicleni.
2. The Romanian Government (“the Government”) were represented by their Agent, Mrs Irina Cambrea, from the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is an employee of an oil production company, P. (referred to below as “the company”), partly owned by the Romanian State, with places of business all over Romania.
5. In 2008 and 2009 a large number of employees of the company, including the applicant, brought civil actions before the domestic courts requesting that they be granted certain salary benefits provided for in the general collective labour agreement for the oil industry. The requested benefits were a salary supplement for autumn/winter supplies and/or a lump sum equal to the value of a specific quota of natural gas.
6. The applicant’s action was rejected by a final decision of Craiova Court of Appeal delivered on 27 March 2009, which found, on the basis of an expert report, that the requested salary benefits had already been included in the applicant’s basic salary.
7. In 2009 and 2010 final judgments by courts of appeal found against most of the employees on the same grounds.
However, some employees were granted the requested benefits, as courts found that they had not received them as part of their basic salary.
8. The collective labour agreement for the energy, oil and gas industry produced by the Ministry of Employment, Social Solidarity and Family entered into force on 26 March 2007. The relevant parts of the agreement read as follows:
“(1) On the occasion of certain annual events such as Easter, May Day, Christmas, as well as in October (for autumn/winter supplies), employees can benefit from a supplement to their salaries, in the form of an additional fixed amount ...
(3) The conditions and criteria for awarding such benefits shall be established in collective labour agreements concluded at company level.”
“(1) The employees of the companies listed in annex no.1, point B, shall receive each year a lump sum equal to the value of a specific quota of natural gas.
(2) The employees listed in paragraph (1), as well as the employees of the companies acting in the oil industry listed in annex no.1, shall have the same right, unless they have received the benefit in the form of an increase in their basic salary.”


ITEMID: 001-110381
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF KEDRA v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
JUDGES: George Nicolaou;Ledi Bianku;Vincent A. De Gaetano
TEXT: 4. The applicant was born in 1955 and lives in Gorzów Wielkopolski.
5. The applicant was involved in administrative proceedings. He claimed reinstatement to work in the police after his dismissal from the Security Service (Służba Bezpieczeństwa) and a refusal to hire him by the police, both given in 1990. The first-instance decision was issued by the Chief Officer of the Internal Security Agency (Szef Agencji Bezpieczeństwa Wewnętrznego) on 1 June 2006. That authority refused to hire the applicant and to count the period since 1990 towards his service.
6. The applicant requested that his case be re-examined. On 7 July 2006 the Chief Officer upheld the contested decision. On 15 January 2007 the Warsaw Regional Administrative Court quashed both the first- and secondinstance decision, finding that the authority had failed to establish the content of the applicant’s claim.
7. On 13 July 2007 the Chief Officer discontinued the proceedings, finding that in so far as the applicant had requested to be hired by the police, that request could not be determined by way of an administrative decision. In so far as he claimed that the period from 1990 should be counted towards the period of his service in the police, this claim had no basis in substantive law.
8. The applicant again requested that his case be reexamined. On 25 September 2007 the Chief Officer upheld the contested decision.
9. The applicant appealed against this decision to the Warsaw Regional Administrative Court. That court gave a judgment in the case and dismissed the applicant’s appeal on 28 March 2008, finding that the contested decisions were lawful.
10. The applicant requested that legal-aid assistance be granted to him for the purposes of lodging a cassation appeal against this judgment with the Supreme Administrative Court. His request was granted and the local Bar Association assigned a lawyer to his case on 3 June 2008. The applicant gave a power of attorney for that lawyer on 10 June 2008.
11. On 2 July 2008 the lawyer lodged a cassation appeal with the Supreme Administrative Court together with a request for retrospective leave to appeal out of time (see paragraph 16 below).
12. On 10 July that court refused to grant leave to appeal out of time. The court found that the legal-aid lawyer had been informed that he had been assigned to represent the applicant on 3 June 2008. On 10 June 2008 that he had been served with the power of attorney, authorising him to act on the applicant’s behalf. It was only on the day following the latter date that the lawyer had had a realistic opportunity of starting to act on the applicant’s behalf in the preparation of the cassation appeal. Hence, the seven-day time limit for lodging a request for a retrospective leave to appeal out of time and lodging a cassation appeal together with it had started to run on 11 June 2008. Consequently, such a request should have been submitted to the court within seven days, on 18 June 2008 at the latest. The applicant’s lawyer had failed to comply with that time-limit as he had submitted his request for leave together with the cassation appeal only on 2 July 2008.
13. The applicant’s lawyer appealed against this decision, arguing that the seven-day time-limit to prepare a cassation appeal together with the request for retrospective leave to appeal, counted from the date when the legal-aid lawyer had received the power to act on the party’s behalf, was unrealistic and that it should be contrasted with the normal thirtyday timelimit for preparation and lodging of a cassation appeal in normal circumstances. A legallyaided party was unduly penalised by that difference in the relevant time-limits.
14. On 4 September 2008 the court dismissed his appeal, sharing the conclusions of the firstinstance court.
15. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010.
16. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination.
17. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).
18. In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legallyaided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant case-law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87132
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RYABIKIN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (in case of extradition to Turkmenistan);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1953 and currently lives in St Petersburg.
8. The applicant was born and lived in Ashkhabad, Turkmenistan. He is of Russian ethnic origin and has family members in Russia. In Turkmenistan he headed a limited liability company called Argamak, which was engaged in the construction business and trade.
9. According to the applicant, between 1997 and 1999 Argamak performed works under a government contract. The applicant submitted that certain officials from the Ministry of Finance of Turkmenistan had refused to honour their obligations under the contract and to pay for the work performed unless the applicant paid a bribe in the amount of 10,000 United States dollars (USD). The applicant further submitted that in May 2000 he had applied to the Ministry of the Interior’s Department for Economic Crime and complained about two inspectors from the Ministry of Finance, S. and D. Both inspectors, according to the applicant, were of Turkmen ethnic origin. The Department for Economic Crime allegedly supplied the applicant with specially marked banknotes and S. was detained during the transfer of the money. Following a criminal investigation, the case against S. and D. was referred to a court, which after two days of hearings ordered an additional investigation. It appears that the applicant participated as a witness. The applicant, who submitted that he did not speak Turkmen, was not provided with an interpreter, although the proceedings were conducted in Turkmen. The applicant was not aware of the outcome of the criminal case.
10. After May 2000 the applicant allegedly came under pressure from the law-enforcement bodies. According to him, officers of those bodies threatened him with revenge and demanded that he change his position in the criminal case. The applicant submitted that in October and November 2000 he had been called in for questioning at the transport police department for organised crime about 25 times, that is, almost every day. He also received threats from D. and the relatives of S. Also in October and November 2000 the applicant was allegedly questioned on several occasions by the Turkmenistan State Security Committee about his economic activities and was asked to become an informant. When the applicant refused he received further threats.
11. As a result, the applicant submitted that he feared for his life and for the lives of his relatives. The applicant felt that he had become a target, in particular because he belonged to the Russian minority, and decided to leave Turkmenistan.
12. On 1 December 2000 the applicant applied for Russian citizenship at the Russian embassy in Ashkhabad. The applicant submitted that all the required documents had been collected and registered at the embassy and that he had received notification that his case file had been registered as no. 22850.
13. On 15 December 2000 the office of the Russian Federal Migration Service at the embassy in Turkmenistan supplied the applicant with a document entitled “Permission to Repatriate from Turkmenistan to Russia and the Granting of Migrant Status”. The document was based on the bilateral treaty on resettlement.
14. On 28 December 2000 the applicant received an exit visa from Turkmenistan valid for three months. On 21 January 2001 the applicant travelled to the United Arab Emirates on a private invitation.
15. On 13 May 2001 the applicant was issued with an entry visa by the Russian embassy in the United Arab Emirates, with the purpose of entry indicated as “permanent residence”.
16. On 9 June 2001 the applicant went to Moscow by plane. On 17 June 2001 he travelled to St Petersburg, where his brother lives, and from then on resided at his brother’s address.
17. The applicant submitted that in June 2001 he had visited the office of the Federal Migration Service in St Petersburg, where he was advised that he should not apply for refugee status because he already had migrant status, and that he should proceed with his application for Russian citizenship.
18. On several occasions between 2001 and 2003 the applicant contacted the Russian embassy in Turkmenistan, the Presidential Commission on Citizenship Issues and the Ministry of the Interior, enquiring about the progress of his application for citizenship. He submitted that he had not received any relevant response.
19. On 9 July 2003 the applicant again applied to the St Petersburg office of the Federal Migration Service and asked in writing to be granted refugee status. On 23 September 2003 the applicant was interviewed and submitted that he feared persecution in Turkmenistan and that he was the subject of a criminal investigation. The applicant submitted all the necessary documents to the migration service, including his national passport.
20. On 24 October 2003 the St Petersburg office of the Federal Migration Service rejected the applicant’s application for refugee status, and on 27 October 2003 the applicant was notified of this in writing. The letter of rejection stated that the applicant had not met the criteria for refugee status, and that the real reason for his arrival in Russia was most probably an attempt to escape the criminal proceedings against him. The decision stated that in 2001 the applicant had obtained migrant status in the Russian embassy for himself and for his family; however, his family had continued to reside in Turkmenistan. The applicant had travelled first to the United Arab Emirates on business, and had arrived in Russia only in June 2001. Since his arrival the applicant had failed to obtain legal status in Russia and had not applied for a residence permit or registration at his place of residence. The decision further stated that the St Petersburg Regional Department of the Interior had confirmed that the applicant had been wanted by the Turkmen authorities since April 2001 and in Russia, further to a request by the Turkmen authorities, since December 2002. The letter also informed the applicant that he could appeal to a district court against the decision and that he should leave Russia if he had no other legal grounds for remaining.
21. On 24 November 2003 the applicant appealed to the Kuybyshevskiy district court of St Petersburg against the refusal of his application. On the same day the case was registered by the court and the first meeting between the parties was scheduled for 15 December 2003. At the same time, the judge requested the applicant’s file from the St Petersburg office of the Federal Migration Service.
22. On 15 December 2003 the hearing was scheduled for 2 February 2004. On 2 February 2004 the judge decided that a request should be sent to Turkmenistan asking about the applicant’s participation as a witness in the criminal case against S. and D. The next hearing was first scheduled for 30 March 2004 and then postponed until 10 June 2004.
23. At the same time, the applicant again contacted various bodies in relation to his application for citizenship. On 28 January 2004 the Presidential Commission on Citizenship Issues informed the applicant that his application for citizenship had been returned to the Russian embassy in Turkmenistan for further processing.
24. In January 2004 the applicant wrote to the Ministry of the Interior. He stated that he had applied for Russian citizenship in December 2000, and that consideration of such applications should take between six and twelve months. He had received no reply to his application. On 21 January 2004 the Passport and Visa Service of the Ministry of the Interior informed the applicant that his application had been forwarded to the St Petersburg Department of the Interior and that it would inform him of the results.
25. The applicant’s family – his wife, daughter, son and two grandchildren – remained in Turkmenistan. After the applicant had arrived in Russia, his wife informed him that she had been summoned to the State Security Committee on several occasions and questioned about her husband’s whereabouts. She also told him that a criminal case against him had been opened and that part of his property had been confiscated.
26. On 12 February 2004 the applicant was summoned to the Passport and Visa Service of the St Petersburg Department of the Interior to discuss “issues relating to the granting of Russian citizenship”.
27. On 25 February 2004 the applicant went to the Department’s premises, where he was arrested. He was told that his detention related to a criminal case in Turkmenistan.
28. On 26 February 2004 the prosecutor of the Central District of St Petersburg issued an order for the applicant’s arrest on the basis of international search warrant no. 1207, issued by Turkmenistan in 2001. The order listed details of the charges brought against the applicant, which included the embezzlement of about USD 139,000 in 2000 and 2001, when the applicant had been the director of a Turkmen-US joint venture. He was charged with offences under Article 228, part 4, of the Turkmen Criminal Code. On 4 April 2001 he had been declared a wanted person in Turkmenistan, and on 26 April 2001 a prosecutor in Turkmenistan had issued an arrest warrant. The Prosecutor General of Russia had been informed of the applicant’s detention. The prosecutor requested the Kuybyshevskiy district court of St Petersburg to authorise the applicant’s detention.
29. On 27 February 2004 the applicant was brought before the Kuybyshevskiy district court. He was represented by a lawyer. The prosecutor requested the court to detain the applicant and stated that he had been wanted in Turkmenistan since April 2001 for an offence under Article 228, part 4, of the Turkmen Criminal Code. The Prosecutor General’s Office had been informed of the applicant’s arrest. The court ordered the applicant’s detention pending his extradition to Turkmenistan. The court did not specify the term of his detention.
30. The applicant’s lawyer appealed to the St Petersburg City Court. The motion stated that the applicant’s appeal concerning his refugee status was pending before the same court. It referred to his pending application for Russian citizenship. It further stated that the applicant had been detained unlawfully, as there had been no decision by the competent prosecutor to detain him with a view to his deportation.
31. On 3 March 2004 the head of the Ashkhabad criminal police requested the Kuybyshevskiy district court to authorise the applicant’s detention on charges of embezzlement on a large scale, an offence punishable under the Turkmen Criminal Code by eight to fifteen years’ imprisonment. The letter stated that the question of extradition would be immediately resolved through the prosecutor generals’ offices of the two countries.
32. On 3 March 2004 the applicant asked Ms Tseytlina to represent him. The applicant submitted that Ms Tseytlina had been denied access to the documents that had served as a ground for his detention, including information about the criminal proceedings in Turkmenistan and the decision of the Prosecutor General to detain him with a view to his extradition. On 9 March 2004 the lawyer submitted a written complaint to the President of the Kuybyshevskiy district court. On 11 March 2004 the lawyer was informed that she could have access to the documents in question if she submitted a written request to the judge. In reply to her written request the President of the Kuybyshevskiy district court postponed the hearing from 11 until 12 March 2004.
33. On 9 March 2004 the Office of the United Nations High Commissioner for Refugees (UNHCR) in Moscow issued a letter stating that the applicant’s appeal concerning his refugee status was pending before the Kuybyshevskiy district court and that his extradition to Turkmenistan prior to determination of his appeal might be in violation of section 10 of the Refugees Act and Article 33 of the 1951 UN Convention relating to the Status of Refugees, to which Russia was a party.
34. On 9 March 2004 the European Court, under Rule 39 of the Rules of Court, requested the Russian authorities not to extradite the applicant to Turkmenistan until further notice.
35. On 12 March 2004 the St Petersburg City Court, in the presence of the applicant’s lawyer, upheld the decision of 27 February 2004. The City Court noted that the applicant was on the international wanted list and that on 26 February 2004 [this should read 2001] the deputy prosecutor of Ashkhabad had ordered his arrest. In the absence of a decision by a foreign court to detain the applicant the Russian court was competent to do so at the prosecutor’s request. The decision of the City Court did not specify a term for the applicant’s detention.
36. On 17 March 2004 the Prosecutor General’s Office received a request from Turkmenistan for the applicant’s extradition. The Russian Government referred to this document but no copy was submitted to the Court. The applicant and his lawyer submitted that they had not seen the document.
37. On 24 March 2004 the Russian Government informed the Court that the applicant had been detained in accordance with Article 466 of the Code of Criminal Procedure (CCP) and that no decision to extradite him had been taken. The Government further submitted that all proceedings in Russia would be suspended until further notice from the Court.
38. On 25 May 2004 the Prosecutor General of Turkmenistan addressed the following letter to the Deputy Prosecutor General of Russia:
“The General Prosecutor’s Office of Turkmenistan presents its compliments to the Prosecutor General’s Office of the Russian Federation and issues a guarantee that Aleksandr Ivanovich Ryabikin will face criminal prosecution only in respect of the crimes committed by him (embezzlement on a large scale) and [that he] will not be subjected to, and has never been subjected to, persecution on political, religious or ethnic grounds.”
39. On 27 August 2004 the Kuybyshevskiy district court dismissed the applicant’s complaint concerning his refugee status on the ground that the applicant had failed to substantiate the allegations regarding his fear of ethnic or religious-based persecution in Turkmenistan.
40. On 4 November 2004 the St Petersburg City Court upheld the decision of 27 August 2004. Both courts noted that the applicant had not submitted any specific information about his alleged persecution on ethnic or religious grounds. They concluded that his fear of being returned to Turkmenistan was based mainly on the criminal proceedings initiated against him and that he had used the refugee status procedure as a means of evading those proceedings.
41. In the meantime, on 8 September 2004, the Deputy Prosecutor General had submitted a request for supervisory review (надзорное представление) to the Presidium of the St Petersburg City Court. In it he challenged the procedural fairness of the decision of 12 March 2004 on the ground that the applicant’s presence had not been secured.
42. On 29 September 2004 the Presidium of the City Court quashed the decision of 12 March 2004 in the supervisory review proceedings and referred it back for re-examination. On 12 October 2004 the City Court again upheld the decision of 27 February 2004 to detain the applicant. The applicant participated by video link.
43. After March 2004 the applicant appealed against his detention on several occasions. Since he had been arrested in the Central Administrative District of St Petersburg, he complained to the three courts operating in the district, namely the Kuybyshevskiy, Smolninskiy and Dzerzhinskiy district courts. He also submitted appeals to the Kalininskiy district court, which has jurisdiction in respect of pre-trial detention centre IZ-47/4, where he had been detained.
44. Before the domestic courts the applicant submitted that in accordance with the Code of Criminal Procedure his detention could be authorised only for two months, and that after 27 April 2004 it had became unlawful.
45. In addition, the applicant applied on numerous occasions to various prosecutors’ offices in relation to the issue of the lawfulness of his detention.
46. A summary of these proceedings is set out below.
47. On 3 May 2004 the applicant, and on 19 May 2004 his lawyer, submitted complaints to the Kuybyshevskiy district court, alleging that the authorisation for his detention which that court had given on 27 February 2004 had expired on 27 April 2004 and had not been extended.
48. On 26 May 2004 the Kuybyshevskiy district court informed the applicant’s lawyer that the complaints had been transferred to the St Petersburg prosecutor’s office.
49. The applicant’s lawyer appealed against the court’s actions to the St Petersburg City Court on 3 June 2004, both directly and via the district court. On the same day the Kuybyshevskiy district court informed the applicant that his complaint had been forwarded to the city prosecutor’s office.
50. On 14 June 2004 the applicant’s lawyer again complained to the St Petersburg City Court, challenging the Kuybyshevskiy district court’s refusal to consider the complaints.
51. In reply, on 23 June 2004 the St Petersburg City Court forwarded the applicant’s complaint to the city prosecutor’s office.
52. On 29 June 2004 the Kuybyshevskiy district court replied to the applicant that his complaints to the City Court had been forwarded to the St Petersburg prosecutor’s office, which he should contact in the future if he wished to apply to have the measure of restraint imposed on him changed.
53. On 13 July 2004 the President of the Kuybyshevskiy district court informed the applicant’s lawyer that no decision had been taken by that court, and that therefore no appeals were possible.
54. On 4 June 2004 the applicant complained to the Smolninskiy district court of the unlawfulness of his detention. On 15 June 2004 the authorities in the detention facility returned the complaint to the applicant, with a letter from a judge of that court stating that it had no jurisdiction to consider it.
55. On 24 June 2004 the applicant, and on 25 June his lawyer, wrote to the Smolninskiy district court, complaining of the applicant’s unlawful detention and requesting it to adopt a formal decision on his complaint. On 25 June the applicant’s lawyer also complained to the St Petersburg City Court.
56. On 9 July 2004 the St Petersburg City Court returned to the applicant’s lawyer her complaints concerning the actions of the Kuybyshevskiy and Smolninskiy district courts without examining them, and stated that she could appeal against the Kuybyshevskiy district court’s decision of 27 February 2004 by means of supervisory review.
57. On 12 July 2004 the Smolninskiy district court returned the complaints to the applicant and stated that he could not appeal against a forwarding letter and that no decision had been taken on his complaint for lack of jurisdiction. All questions relating to extradition fell within the competence of the Prosecutor General’s Office, to which he should apply.
58. On 2 June 2004 the applicant complained of his unlawful detention to the Dzerzhinskiy district court. On an unspecified date that court returned his complaint without examining it and stated that since no investigation was pending in respect of the applicant in the Central Administrative District of St Petersburg, it had no jurisdiction with regard to his detention. The court informed him that he should challenge the lawfulness of his detention before the Kalininskiy district court, which was responsible for the detention centre where he had been detained.
59. On 15 July 2005 the applicant appealed against that decision to the City Court through the district court. On an unspecified date the court returned the applicant’s complaint and stated that since no investigation was pending in respect of him in the Central Administrative District, he should appeal against his detention to the authority responsible for his extradition.
60. On 19 July 2004 the applicant’s lawyer again contacted the Dzerzhinskiy district court, requesting it to review the substance of the complaint. On 13 August 2004 the court ordered an oral hearing in the applicant’s case and requested the city prosecutor’s office to send it all the documents relating to his extradition and detention.
61. On 18 August 2004 the Dzerzhinskiy district court held an oral hearing in the presence of the applicant and his lawyer and refused to consider the complaint on the merits for lack of territorial jurisdiction. The court stated the following:
“The applicant’s reference to Article 109 of the CCP is unfounded because Chapter 54 of the CCP, which regulates extradition on criminal charges, does not provide for a procedure for extending a person’s detention. Persons arrested under Article 466 of the CCP may remain in detention until extradited to the foreign State. The law on criminal procedure links the term of detention only to the pre-established date set by the parties for transfer of the detainee (Article 467 § 1 CCP). The law contains no reference to application of Article 109 by analogy; therefore, the obligation on the investigators to seek an extension of the detention does not apply to this category of persons. Neither the European Convention on Extradition (13 July 1957) nor the Minsk Convention of 22 January 1993 on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, as amended on 28 March 1997 (Article 62), contains any provision corresponding in meaning to Article 109 of the CCP.
The court does not question the fact that Mr Ryabikin, who is being kept in detention, has the right to judicial protection as guaranteed by the Constitution of Russia. However, the court considers that he and his lawyer can exercise this right by challenging the actions of the officials concerned through civil proceedings, by submitting a complaint to a competent court at the location of the St Petersburg prosecutor’s office or the Prosecutor General’s Office, which is the body on which Russian criminal procedural law confers responsibility for issues relating to extradition.”
62. The applicant’s lawyer appealed against this decision on 25 August 2004. She argued that the provisions of Article 109 of the CCP should apply in the applicant’s case and that the courts should be competent to review the lawfulness of his detention. She stated that Russian law provided that all issues relating to application of the provisions of criminal and criminal procedural law should be resolved in the manner provided for by the CCP and not through civil proceedings.
63. On 25 November 2004 the St Petersburg City Court dismissed the appeal and upheld the decision of 18 August 2004. In addition to the conclusions of the district court, it stated that the applicant could appeal to a court against the prosecutor’s actions under Article 125 of the CCP.
64. On 30 April 2004 the applicant complained to the Kalininskiy district court, through the authorities in the detention facility, of the unlawfulness of his detention. On 5 May 2004 the head of the detention facility returned the complaint to the applicant, noting that the Kalininskiy district court had no jurisdiction to deal with it and that the applicant should apply to the St Petersburg City Court instead.
65. On 18 May 2004 the applicant’s lawyer wrote to the head of the detention facility and stated that the latter had exceeded his powers in refusing to forward the applicant’s complaint to the court. She also noted that the applicant’s continued detention was unlawful and requested his release.
66. On 19 May 2004 the applicant’s lawyer submitted a complaint concerning the applicant’s detention to the Kalininskiy district court. On 25 May the court refused to consider the complaint in substance because no investigation was pending in respect of the applicant in Russia, and the provisions of the CCP did not therefore apply to him.
67. On 3 June 2004 the applicant’s lawyer appealed against that decision to the City Court, which on 2 September quashed the order of 25 May 2004 and remitted the case to the district court.
68. On 27 October 2004 the Kalininskiy district court held a hearing in the case and requested the St Petersburg prosecutor’s office to submit documents justifying the applicant’s detention. Pending receipt of the documents, it adjourned consideration of the case until 23 December, and subsequently until 29 December 2004. On 29 December the hearing was adjourned until 13 January 2005, and subsequently until 16 February 2005.
69. On 16 February 2005 the Kalininskiy district court, at a public hearing in the presence of the applicant and his lawyer, reviewed the complaint concerning the unlawfulness of his detention. The court dismissed the complaint and ruled that the case should be transferred to the Kuybyshevskiy district court.
70. The applicant and his lawyer applied on numerous occasions to prosecutors at various levels, seeking to obtain his release.
71. On 14 April 2004 the St Petersburg prosecutor’s office informed the applicant, in reply to his request to be released, that the Prosecutor General’s Office was considering the request for his extradition, that he would be informed of the outcome and that there were no reasons to release him from detention.
72. On 25 May 2004 the Prosecutor General’s Office of Russia wrote as follows to the applicant’s lawyer:
“[The applicant] was detained in St Petersburg in accordance with Article 61 of the [Minsk] Convention on Legal Assistance, as a person in respect of whom an international search warrant had been issued by the Turkmen law-enforcement bodies.
Within 40 days the Prosecutor General of Turkmenistan submitted a request for the extradition of Mr Ryabikin. On that basis, on an application by the St Petersburg prosecutor’s office, the Kuybyshevskiy district court applied the preventive measure of detention under Article 446 § 1 of the CCP.
The question of extending the detention of a person detained under Article 446 § 1 of the CCP is not dealt with by Russian legislation.
According to the information provided by the Representative of the Russian Federation at the European Court of Human Rights, the decision of the President of the Chamber of the European Court to apply Rule 39 of the Rules of Court concerned only the expulsion/extradition/deportation, or any other forcible transfer, of Mr Ryabikin to Turkmenistan, and no decision to release him has been taken.”
73. On 8 and 21 June 2004 the St Petersburg city prosecutor’s office informed the applicant’s lawyer that her complaints of 12, 25 and 28 May and 7 July 2004 concerning the applicant’s release were unsubstantiated, because Article 466 of the CCP did not provide for the possibility of extending the detention of persons being held with a view to extradition.
74. On 8 July 2004 the Prosecutor General’s Office informed the applicant that his extradition to Turkmenistan had been stayed in view of the Court’s application of Rule 39 of the Rules of Court. His allegations concerning persecution in Turkmenistan on political and ethnic grounds were under consideration. The letter concluded that there were no reasons to change the preventive measure applied to him.
75. On 26 August 2004 the Prosecutor General’s Office replied to the applicant’s request to release him by a letter similar to that of 25 May 2004.
76. On 31 December 2004 the Prosecutor General’s Office replied to the applicant’s lawyer, stating that the applicant’s detention was lawful and that on 12 October 2004 the St Petersburg City Court had upheld the lawfulness of the decision of 27 February 2004. It further stated that the applicant’s complaint concerning the lawfulness of his detention had been accepted for review by the Kalininskiy district court.
77. The applicant and his lawyer also appealed directly to the head of detention facility IZ-47/4, requesting the applicant’s release and stating that his detention since 27 April 2004 had been unlawful.
78. On 1 June 2004 the applicant’s lawyer was informed that his continued detention was based on the court’s decision of 27 February 2004, taken in accordance with Article 446 of the CCP.
79. The applicant again complained to the head of detention facility IZ 47/4 on 2 and 28 September 2004.
80. The applicant submitted that his medical condition had deteriorated while he was in detention.
81. On 17 February 2005 the head of the facility replied to the applicant’s lawyer that the applicant had been diagnosed with coronary heart disease and arrhythmia, but that he had received medical treatment and did not require hospitalisation.
82. On 9 March 2005 the Kuybyshevskiy district court accepted for review the applicant’s complaint concerning the unlawfulness of his continued detention, in which he had also referred to the deterioration of his health.
83. On 14 March 2005 the Prosecutor General’s Office, in response to the request by the Kuybyshevskiy district court, stated that no decision concerning the applicant’s extradition to Turkmenistan had been taken and that his continued detention was lawful.
84. On 14 March 2005 the Kuybyshevskiy district court held a public hearing in the presence of the applicant and his lawyer and decided to release him. The court noted that no decision on extradition had been taken by the Prosecutor General’s Office, in view of the application of Rule 39 of the Rules of Court. It further noted that the CCP did not provide for the extension or alteration of a preventive measure in respect of a person arrested further to an extradition request. The district court directly applied Article 17 of the Constitution of Russia, which guarantees rights and freedoms in accordance with internationally recognised principles and norms of international law, and Article 5 of the European Convention on Human Rights, and concluded that the applicant should be released.
85. The Prosecutor General’s Office appealed against that decision, but on 14 April 2005 the St Petersburg City Court upheld it.
86. In their latest observations submitted in July 2007, the Government stated that on 22 April 2005 the Prosecutor General’s Office of Turkmenistan had provided guarantees to its Russian counterpart to the effect that the applicant would not be subjected to torture, inhuman or degrading treatment or punishment in that country. The same letter also stated that the applicant would not be send to a third state without the consent of the Russian authorities; once the judicial proceedings were over and the applicant had served his sentence, he would be allowed to leave Turkmenistan without any hindrance. The Russian Government did not submit a copy of this letter to the Court.
87. In September 2005 the Court lifted the interim measure applied previously in respect of the applicant’s extradition. At the same time it requested the Government to inform it of any new developments regarding the extradition proceedings pending against the applicant.
88. The applicant submitted that he continued to be under threat of arrest and extradition to Turkmenistan. According to him, on 5 December 2005 two plainclothes policemen had visited his brother’s house in St Petersburg, looking for him. They did not produce any documents and said that the applicant should go to the City Department of the Interior.
89. On 7 December 2005 the applicant’s lawyer and his brother went to the Department’s offices and were informed that the interim measure had been lifted and that the applicant should report to the Department of the Interior. No documents were produced in respect of any proceedings. The officers also refused to clarify whether there had been a decision to extradite the applicant to Turkmenistan. On 8 December 2005 the applicant called the Department but again received no explanations as to the status of his extradition. He did not go there in person, fearing that he would again be arrested.
90. In January 2006 the Government informed the Court that “the Prosecutor General’s Office reverted to the examination of the question of the applicant’s possible extradition. Since the applicant’s whereabouts are not established, the ... Ministry of the Interior, acting on instructions of the Prosecutor General’s Office, is taking actions in order to apprehend the applicant.” In reply, the Court reminded the Government that they had been requested to submit updated information concerning the applicant’s extradition. No such information has been forthcoming.
91. The applicant submitted a number of reports on the situation in Turkmenistan, including documents issued by the OSCE, the European Parliament, the UN Commission on Human Rights, the US State Department, Amnesty International, Memorial, Human Rights Watch and the International Helsinki Federation for Human Rights. These documents speak of serious and continuing human rights violations occurring in Turkmenistan. In particular, they refer to persecution of ethnic minorities including Russians, violations of the principle of a fair trial, widespread use of torture, intolerable conditions of detention and lack of access to detainees by independent bodies, lawyers and relatives.
92. In particular, the OSCE Moscow Mechanism Rapporteur’s Report on Turkmenistan, issued by Prof. Emmanuel Decaux on 12 March 2003, stated:
“Large-scale violations of all the principles of due process of law, like arbitrary detentions or show trials took place. Not only torture has been used to extract confessions, but the forced use of drugs was a means of criminalising the detainees, entailing lethal risks for them. A multiform collective repression fell on the ‘enemies of the people’, whereas forced displacement is announced in arid regions of the country, especially against people targeted on the ground of their ethnic origin. Even if the death penalty has been legally abolished, in practice, the survival expectancy of political detainees and displaced persons seems very low.”
The Report recommended, inter alia:
“Third States, and particularly the States parties to the European Convention on Human Rights, should refuse to extradite or to hand over Turkmen nationals who, in the current circumstances, are in danger of being subjected to torture or inhuman and degrading treatments. They should envisage the possibility of granting refugee status to all persons having a well-founded fear of persecution and co-operate with the UNHCR to this end.”
93. On 23 October 2003 the European Parliament adopted a resolution on Turkmenistan, which stated that “the already appalling human rights situation in Turkmenistan has deteriorated dramatically recently, and there is evidence that this Central Asian state has acquired one of the worst totalitarian systems in the world”. It called on the Turkmen government, among other things, to conduct impartial and thorough investigations into all allegations of torture and ill-treatment of persons held in custody, to allow the International Committee of the Red Cross access to prisoners and to ensure that independent observers were granted access to criminal trials.
94. Resolution 2003/11 of the Commission on Human Rights on the situation of human rights in Turkmenistan deplored “[t]he conduct of the Turkmen authorities with regard to the lack of fair trials of the accused, the reliance on confessional evidence which may have been extracted by torture or the threat of torture, the closed court proceedings, contrary to Article 105 of the Constitution of Turkmenistan... and the refusal to allow diplomatic missions or international observers in Ashkhabad access to the trials as observers”.
95. Resolution 2004/12 of the Commission on Human Rights on the situation of human rights in Turkmenistan expressed its grave concern “at the continuing failure of the Government of Turkmenistan to respond to the criticisms identified in the report of the Rapporteur of the Moscow Mechanism of the OSCE as regards the investigation, trial and detention procedures following the reported assassination attempt against President Niyazov in November 2002, as well as the failure of the Turkmen authorities to allow appropriate independent bodies, family members and lawyers access to those convicted, or to provide any kind of evidence to dispel rumours that some of the latter have now died in detention”. The Commission also called on Turkmenistan “[t]o grant immediate access by appropriate independent bodies, including the International Committee of the Red Cross, as well as lawyers and relatives, to detained persons, especially to persons detained following the events of 25 November 2002”.
96. The report of the UN Secretary-General on the situation of human rights in Turkmenistan of 3 October 2006 (A/61/489) concluded that “gross and systematic violations of human rights continued in the country”. Among the main areas of concerns identified were the repression of political dissent, the situation of minorities (including ethnic non-Turkmen), the use of torture and the absence of an independent judiciary.
97. Citing human rights concerns, the European Parliament in October 2006 adopted a resolution to stop further consideration of an interim trade agreement with Turkmenistan. The International Trade Committee resolution stated that the European Union would approve an interim trade agreement with Turkmenistan only if “clear, tangible, and sustained progress on the human rights situation is achieved.” It called on the Turkmen Government to release all political prisoners, allow the registration and free functioning of non-governmental organisations, permit the International Committee of the Red Cross to work freely in the country and grant United Nations human rights monitors “timely” access to Turkmenistan to monitor the situation.
98. The organisation Human Rights Watch in its 2007 World Report described Turkmenistan as “one of the world’s most repressive and closed countries,” where the authorities severely suppressed all forms of dissent and isolated the population from the outside world. Its human rights record in 2006 was described as “disastrous”. In particular, the report mentioned discrimination against ethnic and religious minorities in many important areas of social life, resort to torture and poor prison conditions. It also noted that “the government persisted in its refusal to grant international organizations access to prisons”.
99. Articles 108 and 109 of the CCP contain provisions relating to pre-trial detention. They provide that detention can be imposed by a judge on a reasoned request by the prosecutor, or an investigator duly authorised by the prosecutor, if no other measure of restraint can be applied. The decision of the court to impose detention can be appealed against within three days to a higher court, which must consider it within three days from the day of receipt of the appeal. Article 109 lays down the following terms of pre-trial detention. The initial term of detention cannot exceed two months. If the investigation continues, it can be extended to a maximum of six months by the court on an application by the prosecutor. After that, on an application by the regional prosecutor, it can be extended up to a maximum of 12 months. In exceptional circumstances, on an application by the Prosecutor General or his deputy, pre-trial detention can be extended up to a maximum of 18 months.
100. Article 125 of the CCP provides for judicial review of decisions by investigators that are liable to infringe the constitutional rights of the participants in the proceedings or prevent a person’s access to court.
101. Chapter 54 of the CCP regulates extradition on criminal charges. Articles 462 and 463 state that the decision to extradite a person further to a request from another country is taken by the Prosecutor General or his deputy. Such decision is subject to appeal to a regional court within 10 days from the date of notification of the decision to the person concerned. The complaint is reviewed at a public hearing, in the presence of the person in question, his representative and the prosecutor. The decision of the regional court can be appealed against to the Supreme Court.
102. Article 464 provides that extradition cannot take place if the person whose extradition is sought is a Russian national or if he has refugee status.
103. Article 466 contains provisions relating to the detention of a person whose extradition is sought. Detention can be authorised by the Prosecutor General or his deputy upon receipt of an extradition request. If a foreign court has authorised the person’s arrest, the decision of the prosecutor does not need to be confirmed by a Russian court. The period of detention cannot exceed the normal terms of detention pending investigation laid down by the Code of Criminal Procedure for similar crimes.
104. Article 5 of the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (the 1993 Minsk Convention), to which both Russia and Turkmenistan are parties, provides that the Parties communicate through their central, regional and other bodies. Its other relevant provisions are as follows:
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
“1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party ...
2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certified copy of ... the detention order ...
4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.”
“1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”
105. On 4 April 2006 the Constitutional Court examined an application by Mr Nasrulloyev, who claimed that since the detention of a person pending extradition was not limited in time, the resulting legal situation was incompatible with the constitutional guarantee against arbitrary detention. The Constitutional Court declared the application inadmissible. It found that there was no ambiguity in the contested provisions because the general provisions governing measures of restraint were applicable to all forms and stages of criminal proceedings, including proceedings concerning extradition. The Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without judicial review, was not compatible with the Constitution. On 11 July 2006 the Constitutional Court refused to issue a clarification of that decision, noting that it was not competent to indicate specific legal provisions regulating the procedure and time-limits for application of a custodial measure in extradition proceedings, that being within the competence of the courts of general jurisdiction.
106. The Government referred in their submissions to two decisions by the Supreme Court. According to the Government, on 12 October 2005 the Presidium of the Supreme Court had stated in a case concerning extradition of an Azeri citizen that the provisions of Article 109 of the CCP were not applicable to the situation of detention pending extradition. Similarly, in the case of Mr A. concerning the latter’s detention with a view to extradition to Armenia, the Criminal Division of the Supreme Court held as follows (case no. 72-005-19, 8 June 2005):
“The term of detention of a person who is to be extradited to the place of commission of an offence... is not governed by Article 109 of the Code of Criminal Procedure. In accordance with the requirements of [the 1993 Minsk Convention], a person arrested at the request of a foreign state may be held in custody for forty days until a request for extradition has been received. Subsequent detention of the person is governed by the criminal law of the requesting party (Armenia in the instant case).”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-76598
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GURTEKIN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They were living in Güldiken village of Lice district of Diyarbakır at the time giving rise to the applications. They are represented before the Court by Mr Mesut Beştaş and Ms Meral Beştaş, lawyers practising in Diyarbakır.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until December 1992 the applicants lived in Güldiken village of Lice, Diyarbakır. On 10 December 1992 the applicants’ village was forcibly evacuated by the security forces on account of intense terrorist activities in the region. After the evacuation, the security forces burned down the houses in the village. Ever since the incident, the applicants have been living in Diyarbakır.
On 30 March 1993 the village headman filed a petition with the Governor’s Office in Diyarbakır on behalf of the villagers, requesting a damage assessment and compensation. On the same day the Governor transferred the letter to the Diyarbakır Head Office for Public Works (Bayındırlık ve İskan Müdürlüğü). The experts from this office assessed the damage and drafted a report. The report was submitted to the Governor who, however, did not inform the applicants about it.
On 4 November 1998 the applicants applied to the Governor’s Office to obtain a response to their petition. On the same day the Governor informed the applicants that their petition and the relevant report had been sent to the Diyarbakır Head Office of Public Works.
On 12 November 1998 the applicants filed a petition with the Ministry of Interior requesting compensation for their losses and permission to return to their village. The Ministry of Interior referred the applicants’ request to the Governor’s Office.
On 30 December 1998 the Governor sent a letter to the applicants informing them that the District Social Aid and Solidarity Association (İlçe Sosyal Yardımlaşma ve Dayanışma Vakfı Başkanlığı) could not afford to pay the compensation requested by the applicants.
On 26 April 1999 the applicants filed an action with the Diyarbakır Administrative Court against the Ministry of Interior requesting compensation for their losses. They also applied for legal aid and submitted to the court documents obtained from certain state authorities indicating their poverty.
On 23 June 1999 the Diyarbakır Administrative Court rejected the applicants’ request. The court held that, since the applicants had sufficient means to be represented by a lawyer, they could not be considered to be in need of legal aid according to the case law of the Court of Cassation and the rules of civil procedure.
On 28 October 1999 the court decided to discontinue the proceedings on the ground that the required legal fees had not been paid. The decision was served on the applicants on 28 November 1999.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not destroyed the applicants’ village or forced them to leave their homes.
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)