ITEMID: 001-114826
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: RAMAER AND VAN WILLIGEN v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants, Mr Johan Coenraad Ramaer and Mr Johannes Meindert van Willigen, are Netherlands nationals. Mr Ramaer, who was born in 1926, lives in Alicante, Spain. Mr van Willigen, who was born in 1942, lives in Hoeilaart, Belgium. The applicants were represented before the Court by Mr T. Barkhuysen and Mr A.W. Bos, lawyers practising in Amsterdam.
3. Before 1 January 2006 basic health insurance in the Netherlands was organised in two separate statutes.
4. The first, the Health Insurance Act (Ziekenfondswet), set up a public health insurance system which covered categories of persons that may be broadly described as employees and old age pensioners up to a certain income limit, as well as those in receipt of social-security or unemployment benefits, with their families. They were compulsorily insured by public health care funds (ziekenfondsen), to which they paid contributions withheld from their wages, pensions or benefits respectively.
5. The second, the 1998 Health Insurance (Access) Act (Wet op de toegang tot ziektekostenverzekeringen 1998), ensured the availability of private health insurance at a level equivalent to that provided under the Health Insurance Act for persons not covered by the Health Insurance Act. To that end it imposed an obligation on insurers providing this kind of insurance to insure persons who were resident in the Netherlands or elsewhere in the European Union (EU), the European Economic Area (EEA), Switzerland or another State with which the Netherlands had entered into a treaty concerning social security, provided that Netherlands social security legislation applied to them by virtue of European Union Council Regulation 1408/71 (EC) or that treaty.
6. The Private Health Insurance (Reimbursements) Decree (Vergoedingenbesluit particulier verzekerden) provided for reimbursement to insured persons resident in other EU or EEA member States of insured medical costs incurred in those States, up to the same amounts that would have been refundable had the care been provided in the Netherlands (section 19), and for reimbursement of the cost of urgent hospitalisation in hospitals abroad for up to 365 days to an amount up to double that which would be refundable had the care been provided in the Netherlands.
7. The General Exceptional Medical Expenses Act (Algemene Wet Bijzondere Ziektekosten, “AWBZ”) provided, and provides, a complementary compulsory insurance scheme covering all those lawfully resident or employed in the Netherlands.
8. Before 2006, persons who had been affiliated to this scheme for at least a year could continue their affiliation on a voluntary basis if they emigrated, provided inter alia that they were not employed abroad (section 32a of the Act).
9. According to detailed rules given in the General Exceptional Medical Expenses Act (Benefits in kind) Ordinance (Besluit zorgaanspraken AWBZ), the AWBZ covered certain medical and other health care expenses not covered by the above-mentioned insurance schemes, including hospitalisation beyond 365 days, medical or non-medical home care and psychotherapy.
10. The AWBZ system was, and is, contributory. Contributions are calculated based on income and levied by the tax authorities together with wage tax (loonbelasting) or income tax (inkomstenbelasting) as the case may be.
11. On 1 January 2006 the Health Care Insurance Act (Zorgverzekeringswet) entered into force. It replaced the dual regime for basic health care under the Health Insurance Act and the Health Insurance (Access) Act by a single regime applicable to all. Complementary health care continues to be provided under the AWBZ.
12. Save for military personnel, who are subject to a separate regime, and those who object to insurance on religious grounds, who pay a tax in lieu of premium, all those who are compulsorily insured under the AWBZ are now obliged to take out health care insurance in accordance with the Act (section 2(1)). Health care insurers, now all private entities, have a duty to offer insurance on standard terms to all who so request (section 3).
13. Those compulsorily insured are all Netherlands residents, persons paying wage tax through being employed in the Netherlands or on the Netherlands continental shelf (section 5), and those whose insurance under the AWBZ is a consequence of the application of provisions of a treaty or a decision of an international organisation (van wie de verzekering op grond van deze wet voortvloeit uit de toepassing van bepalingen van een verdrag of van een besluit van een volkenrechtelijke organisatie) (section 5b(1)). This excludes pensioners resident in EU countries other than the Netherlands, to whom the AWBZ is no longer directly applicable.
14. Netherlands residents pay a standard basic premium plus an income-dependent additional sum to the health care insurer of their choice, who is obliged to accept them. Any additional private health care insurance is optional.
15. The case concerns the effects of the changes introduced on 1 January 2006 on retired Netherlands nationals formerly insured under the private insurance system and who are residents of European Union Member States other than the Netherlands; such persons are stated by the applicants to number some 40,000. By virtue of European Union Council Regulation 1408/71 (EC), Annex VI, heading R, paragraph 1, point (a)(ii), they are entitled to health care in their state of residence, the costs being borne by the Netherlands. Similar arrangements apply to Netherlands nationals resident in European Economic Area (EEA) countries and – under a separate treaty – Switzerland. Persons in this position are referred to as “treaty beneficiaries” (verdragsgerechtigden).
16. Treaty beneficiaries are required to register with the Health Care Insurance Board (College voor zorgverzekeringen), to which they pay a contribution which is deducted at source from their Netherlands income. They must also register with the health care authority of their country of residence to establish their actual entitlement to health care.
17. From figures published by the Ministry for Health, Welfare and Sport (Ministerie van Volksgezondheid, Welzijn en Sport), quoted in the judgment given by the Provisional Measures Judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague on 31 March 2006 (see paragraph 36 below), it appears that at the relevant time the annual sum paid by the Netherlands for pensioners subject to the measures in issue and members of their families was 3,450 euros (EUR) per person for those resident in Belgium and EUR 2,586 per person for those resident in Spain.
18. Mr Ramaer and his wife have been resident in Belgium since 1983, Mr Ramaer having been stationed there by his Netherlands employer at the time. He now pays his taxes in Belgium.
19. Before 1 January 2006, he had private health care insurance from an insurer based in the Netherlands, IAK, under a collective contract negotiated through his former employer. This contract entitled him to care of a standard comparable to that available in the Netherlands under private insurance plus the AWBZ. On 1 January 2006 the collective contract with IAK was terminated and Mr Ramaer’s entitlements under the AWBZ came to an end.
20. On an unknown date in December 2005 Mr Ramaer received a letter from the Health Care Insurance Board informing him that he and his wife were henceforth entitled to health care in their country of residence and bound to register with the Health Care Insurance Board itself. Mr Ramaer lodged an objection, which the Health Care Insurance Board dismissed on 8 August 2006. Mr Ramaer then lodged an appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State – see below).
21. Mr Ramaer registered with the Health Care Insurance Board under protest. He declined IAK’s offer of complementary insurance, which would have cost him EUR 2,042 per insured person per year. Instead, making use of a special offer available for a limited period, he took out complementary insurance with a Belgian health care insurer, Partena; this cost him an additional EUR 543 per year.
22. Mr Ramaer states that in order to obtain health care of the same standard as before 1 January 2006, he now has to pay the contribution to the Health Care Insurance Board, the premium to the Belgian insurance company and non-refundable portions (Flemish: remgeld, French: ticket modérateur) of certain expenses including the cost of assistance of a general practitioner, internal medicine, the assistance of an optician and physiotherapy.
23. Mr Ramaer calculates his annual medical expenses (based on 2006 figures) as follows (in EUR):
which total sum does not include non-refundable portions payable for Belgian health care.
24. Mr Ramaer calculates that, had he had no option but to take out complementary insurance with IAK instead of Partena, it would have cost him EUR 2,042 instead of EUR 543, raising the total sum to EUR 5,276.
25. He also calculates that a Netherlands resident in his position paid EUR 950 per year for basic health care insurance plus an additional income-dependent contribution in an amount of EUR 1,451, or EUR 2,401 in total.
26. In May or April 2007 the Health Care Insurance Board sent Mr Ramaer a provisional settlement note (jaarafrekening) covering the contributions due for 2006. Mr Ramaer lodged an objection, which the Health Care Insurance Board dismissed on 17 July 2007. Mr Ramaer appealed to the Regional Court of Amsterdam, Administrative Law Division (Sector bestuursrecht – see below).
27. Mr van Willigen has been resident in Spain since 1999. Formerly in receipt of disability benefits under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering – “WAO”), since 1 March 2007 he enjoys an old age pension under the General Old Age Pension Act (Algemene Ouderdomswet; “AOW”) and a complementary pension.
28. Until 1 January 2006 Mr van Willigen was insured privately by the insurance company Delta Lloyd, to whom he paid EUR 2,271 per annum. On 1 January 2006 this insurance contract was terminated ex lege. Delta Lloyd replaced it automatically by a new contract at an annual cost of EUR 4,436, this sum being payable in addition to the compulsory contributions due to the Health Care Insurance Board.
29. Mr van Willigen protested to Delta Lloyd against this increase. In September 2006 Delta Lloyd made him a new offer of complementary insurance for an annual sum of EUR 2,042.
30. In the meantime, however, Mr van Willigen had accepted a special offer made by the Spanish insurance company Sanitas, who offered him complementary insurance for EUR 828 annually. Mr van Willigen states that this premium has now gone up to EUR 2,160 per year for 2012.
31. Although this entitles Mr van Willigen to private health care as distinct from Spanish public health care, which he describes as “mediocre”, certain expenses remain non-refundable. These include, among others, the cost of medicines prescribed outside hospitals and part of the cost of consulting a doctor.
32. Mr van Willigen calculates his annual medical expenses (based on 2006 figures) as follows (in EUR):

not including non-refundable expenses.
33. Mr van Willigen calculates that, had he had no option but to accept the terms offered by Delta Lloyd in early 2006, it would have cost him EUR 6,301 annually.
34. On 26 June 2007 the Social Insurance Bank (Sociale Verzekeringsbank), the body administering, among others, the AOW, informed Mr van Willigen of the decision to withhold the contributions due under the Health Care Insurance Act from his AOW pension. Mr van Willigen lodged an objection with the Social Insurance Bank, which dismissed it on 24 August 2007.
35. A non-governmental organisation, the Foundation for the Protection of the Interests of Netherlands Pensioners Abroad (Stichting Belangenbehartiging Nederlandse Gepensioneerden in het Buitenland, “SBNGB”) and a group of individuals affected by the matters in issue, including Mr Ramaer, summoned the Netherlands State before the Provisional Measures Judge of the Regional Court of The Hague seeking, as relevant to the case before the Court, an order to ensure that the contributions provided for by section 6.3.1 of the Health Care Insurance Rules (see below) be not levied from them and their health care insurance contracts existing before 1 January 2006 be continued beyond that date.
36. The Provisional Measures Judge gave judgment on 31 March 2006 ordering the State not to implement section 6.3.1 of the Health Care Insurance Rules to the extent that the sums payable by the insured persons exceeded the sums paid by the Netherlands to the country of residence and instruct the Health Care Insurance Board accordingly. This order, which was of a provisional nature, would lapse if proceedings on the merits were not brought within one month.
37. However, this judgment led the Minister for Health, Welfare and Sport to amend section 6.3.1 of the Health Care Insurance Rules and introduce the “country of residence correction factor” with retroactive effect until 1 January 2006.
38. Mr Ramaer lodged an appeal with the Administrative Jurisdiction Division of the Council of State against the dismissal of his objection by the Health Care Insurance Board (see paragraph 20 above).
39. On 25 April 2007 the Administrative Jurisdiction Division declared the appeal inadmissible on the ground that the Health Care Insurance Board’s original letter of December 2005 was merely informative in nature and was therefore not a decision against which an objection or an appeal would have been possible.
40. Mr Ramaer appealed to the Regional Court of Amsterdam, Administrative Law Division, against the decision which the Health Care Insurance Board had given on 17 July 2007 (see paragraph 26 above), as did two other recipients of similar decisions.
41. Mr van Willigen appealed to the Regional Court of Amsterdam, Administrative Law Division, against the decision which the Social Insurance Bank had given on 24 August 2007 (see paragraph 34 above), as did two other recipients of similar decisions.
42. The complaints and arguments were essentially the same in both cases. The appellants argued that Articles 28 and 28a of Council Regulation 1408/71 and Article 29 of Council Regulation 574/72 offered them the choice to opt out of the social-security regime of their home country. In the alternative, they argued that the absence of such a choice violated Article 18 or Article 39, or both, of the Treaty establishing the European Community; in the further alternative, they argued that the method used to calculate the country of residence correction factor was flawed.
43. The Regional Court gave its decisions on 1 February 2008.
44. In Mr Ramaer’s case, it held that Article 28 of Regulation 1408/21 provided a conflict rule, not an option. Article 29 of Council Regulation 574/72 did not suggest otherwise; moreover, the latter regulation related to the application of Regulation 1408/21. There was no violation of Article 18 or Article 39 of the Treaty establishing the European Community: since the appellants were not put at a disadvantage as compared to those already employed or self-employed in the member States concerned, and since the appellants were not made to pay contributions without any corresponding entitlements, and since, moreover, their contributions were subject to a country of residence correction factor, there was no interference with the right to freedom of movement. Finally, the situation was not the same as that which the provisional measures judge of the Regional Court of The Hague had considered in the judgment of 31 March 2006: not only were the applicants foreign residents, from which it followed that they were not in a relevantly similar situation to Netherlands residents and therefore subject to different health care regimes, but country-specific country of residence correction factors had been introduced which removed any equal treatment of fundamentally unequal cases. The calculation of the country of residence correction factors was not arbitrary; the Netherlands legislature had remained within its margin of appreciation in its choice of method.
45. In Mr van Willigen’s case, it held that primary responsibility for implementing the legislation in question was vested in the Health Care Insurance Board rather than the Social Insurance Bank which had little power of decision in the matter. As for the merits, it confined itself to referring to the decision in the case of Mr Ramaer, which it appended to the decision in Mr van Willigen’s case.
46. Both applicants appealed, together with their fellow appellants, to the Central Appeals Tribunal (Centrale Raad van Beroep) against the decisions of the Amsterdam Regional Court.
47. On 1 August 2008 the Act on proceedings concerning the withholding of contributions from treaty beneficiaries (Wet rechtsgang bronheffing verdragsgerechtigden) entered into force. Its effect, as relevant to the present case, was to substitute the Health Care Insurance Board for the Social Insurance Bank as the defendant in the proceedings brought by Mr van Willigen.
48. On 26 August 2009 the Central Appeals Tribunal gave a decision noting that an entitlement to health care in the country of residence under Articles 28 and 28a of Regulation 1408/71 arose only if the person concerned had registered with the competent authority in accordance with Article 29 of Regulation 574/72. This the person could refuse to do, which raised the question whether in case of such refusal Article 33 of Regulation 1408/71 could be construed as nonetheless justifying the deduction of contributions from their pension. At the same time, although since the introduction of the country of residence correction factor there appeared no longer to be any disadvantage preventing pensioners from settling in other European Union member States, the applicants and their fellow appellants were in a dissimilar position in that they had already been resident in other European Union member States while the former system was still in existence and they alleged that they were faced with higher costs for health care allegedly of a lower standard. This might affect freedom of movement and residence, protected by Articles 39 and 18 of the Treaty establishing the European Community (as in force at the time).
49. The Central Appeals Tribunal therefore addressed a request for a preliminary ruling under Article 234 of the Treaty establishing the European Community to the Court of Justice of the European Communities in the following terms:
“1. Should Articles 28, 28a and 33 of Regulation No 1408/71, the provisions of point 1(a) and (b) of section R of Annex VI to Regulation No 1408/71, and Article 29 of Regulation No 574/72 be interpreted as meaning that a national provision such as Article 69 of the [Health Care Insurance Act] is incompatible therewith, in so far as a pensioner who in principle has entitlements under Articles 28 and 28a of Regulation No 1408/71 is obliged to report to the [Health Care Insurance Board] and a contribution must be deducted from that person’s pension even if no registration has taken place under Article 29 of Regulation No 574/72?
2. Should Article 39 of the Treaty establishing the European Community or Article 18 of the Treaty establishing the European Community be interpreted as meaning that a national provision such as Article 69 of the [Health Care Insurance Act] is incompatible therewith in so far as a citizen of the European Union who in principle has entitlements under Articles 28 and 28a of Regulation No 1408/71 is obliged to report to the [Health Care Insurance Board], and a contribution must be deducted from that citizen’s pension, even if no registration has taken place under Article 29 of Regulation No 574/72?”
50. The Court of Justice of the European Union gave its preliminary ruling (case C–345/09, J.A. van Delft, J.C. Ramaer, J.M. van Willigen, J.F. van der Nat, C.M. Janssen and O. Fokkens v. College voor Zorgverzekeringen) on 14 October 2010. It was in the following terms:
“1. Articles 28, 28a and 33 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, in conjunction with Article 29 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended by Commission Regulation (EC) No 311/2007 of 19 March 2007, must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which recipients of pensions payable under the legislation of that State who reside in another Member State in which they are entitled under Articles 28 and 28a of Regulation No 1408/71 to the sickness benefits in kind provided by the competent institution of the latter Member State must pay, in the form of a deduction from their pension, a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence.
2. Article 21 TFEU [i.e. Treaty on the Functioning of the European Union] must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which recipients of pensions payable under the legislation of that State who reside in another Member State in which they are entitled under Articles 28 and 28a of Regulation No 1408/71, as amended by Regulation No 1992/2006, to the sickness benefits in kind provided by the competent institution of the latter Member State must pay, in the form of a deduction from their pension, a contribution in respect of those benefits even if they are not registered with the competent institution of their Member State of residence.
On the other hand, Article 21 TFEU must be interpreted as precluding such national legislation in so far as it induces or provides for – this being for the national court to ascertain – an unjustified difference of treatment between residents and non-residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation.”
51. The Central Appeals Tribunal gave separate final decisions (in Mr Ramaer’s case: LJN (Landelijk Jurisprudentie Nummer, National Jurisprudence Number) BU7125; in Mr van Willigen’s case: LJN BU7135) on 13 December 2011. The reasoning in the applicants’ cases was identical and extensive. It may be summarised as follows.
52. In view of the Court of Justice of the European Union’s answer to the first question, the Central Appeals Tribunal found that a right to opt out of the withholding of contributions under section 69 of the Health Care Insurance Act did not exist.
53. In view of the answer to the second question, it found that withholding contributions under section 69 of the Health Care Insurance Act did not in itself impede European Union citizens’ freedom of movement.
54. This left the Central Appeals Tribunal having to ascertain “whether an unjustified difference of treatment between residents and non-residents as regards ensuring the continuity of the overall protection against the risk of sickness enjoyed by them under insurance contracts concluded before the entry into force of that legislation” existed, given that the applicants had been insured privately on 31 December 2005.
55. The Central Appeals Tribunal found that provision had been made for a statutory transitional arrangement on the basis of which private insurance contracts of residents and non-residents partially lapsed ex lege, in comparable fashion, it being intended that for both groups basic cover as it existed before 1 January 2006 should continue to exist. There was in fact no disagreement on this point. However, for reasons of practicability, further arrangements had been necessary between the insurance companies and the persons concerned as to the remaining part of the insurance contract or any new complementary insurance contract. This had effectively compelled any persons concerned who wished to retain complementary cover of their medical expenses in addition to the statutory basic system after 1 January 2006 to take out new complementary insurance. This, however, applied equally to residents and non-residents. In this respect, therefore, there was no difference in treatment between residents and non-residents.
56. It then found that private insurers were under no unconditional duty to offer insurance (acceptatieplicht) complementary to basic cover. Pursuant to the statutory unconditional duty to offer insurance, basic cover for health care was secured to residents based on the Health Care Insurance Act. Non-resident treaty beneficiaries were entitled ex lege to health care in their country of residence in accordance with the basic health care regime of that country (woonlandpakket). To that extent it could not be said that residents were treated more favourably than non-residents. Given that there was no statutory duty to offer complementary insurance either as regards residents or as regards non-residents, there was no difference in treatment in that respect either. It was also relevant within the framework of transitional law that a statutory duty to offer insurance was in fact contained in section 2.5.2 of the Health Care Insurance Act (Introduction and Adaptation) Act (Invoerings- en aanpassingswet Zorgverzekeringswet), which applied to both residents and non-residents. Existing insurance contracts were only terminated ex lege in so far as they coincided with the Netherlands basic insurance regime and the basic health care regime of the country of residence, respectively. They continued to exist for the remainder. It followed that even if a further contract or new complementary contract was entered into, the insurer could not reject any person concerned who was insured on 31 December 2005 for that part of the contract which was not terminated ex lege. In this, transitional law was actually more favourable than the new system per se.
57. Nor could it be found that an (unjustified) difference in treatment between residents and non-residents had been caused by the Netherlands Government through means other than legislation. In addition to studying the drafting history of the new legislation and parliamentary discussions, the Central Appeals Tribunal had held a hearing at which it had heard officials of the Ministry for Health, Welfare and Sport (Ministerie van Volksgezondheid, Welzijn en Sport) who had actually been involved in determining the (legal) position of resident and non-resident treaty beneficiaries and in the contacts and negotiations with Netherlands insurance companies. From the information given it had emerged that the Minister for Health, Welfare and Sport had in fact been concerned to secure for non-resident treaty beneficiaries insurance cover comparable to that which they enjoyed before 1 January 2006 on reasonable conditions. To that end, the Minister for Health, Welfare and Sport had entered into administrative agreements, through the umbrella organisation (koepelorganisatie) Netherlands Health Care Insurers (Zorgverzekeraars Nederland), with the public health care funds and the private insurers to make all their insured clients an offer that was comprehensive and non-selective (i.e. without risk selection) for health care insurance plus complementary insurance. It was not possible for the Minister for Health, Welfare and Sport to compel the insurers to make an offer for complementary insurance on definite, fixed-tariff conditions. Such intrusive involvement with complementary insurance would have run counter to European Union directives on non-life insurance (schadeverzekeringen) (Directive 73/239/EEC, Official Journal 1973, L228.3; Directive 88/357/EEC, Official Journal 1988, L172/1; and Directive 92/49/EEC, Official Journal 1992, L228/1; as since amended), which did not admit of a legislative system in which provision was made for the approval of tariffs for health care insurance other than basic health care insurance.
58. The legislature had thus designed a transitional arrangement aiming to preserve as far as possible the global cover which residents and non-resident treaty beneficiaries alike enjoyed before the entry into force of the Health Care Insurance Act under their Netherlands private insurance. Despite the statutory arrangement, under which only part of the contract was terminated, it had in actual fact often been necessary, for practical reasons, to conclude new contracts. For residents these contracts related to the statutory basic insurance and one or more complementary insurance contracts in addition to that basic insurance, and for treaty beneficiaries, to one or more complementary insurance contracts in addition to the basic health care regime of the country of residence. It had been necessary in order to facilitate this process to reach administrative agreements with health care insurers. These had indicated that they could hardly be expected to design cost-effective insurance for each European Union or treaty country to meet the wishes of an often relatively small number of insured Netherlands nationals per country concerned. Although many insurers had in fact made reasonable offers, the fact remained that the numbers of persons requiring complementary insurance as treaty beneficiaries had decreased, and with them the financial base for the insurance. In addition, it could not be ruled out that insurance cover in the respective countries of residence was not up to Netherlands standards. That, however, was inherent in the new system, which the Court of Justice of the European Union had found was not in itself contrary to European Union law.
59. It could not be ruled out that the insurers might in some cases not have complied, as regards non-resident treaty beneficiaries, with the unconditional duty, set forth in section 2.5.2 of the Health Care Insurance Act (Introduction and Adaptation) Act, to accept them as clients. Nor could it be ruled out that insurers might in some cases have applied a risk selection on grounds of age and health to treaty beneficiaries, in the sense that terms and conditions for renewal of complementary insurance might have turned out (considerably) less favourable than those of the original contract. That said, the Central Appeals Tribunal had not been made aware of a demonstrable difference in treatment between residents and non-residents caused by the Netherlands Government and implemented with their connivance by insurance companies based in the Netherlands. Besides the fact that such a difference had not been laid down in the statutory arrangement, there was no appearance either of a ‘political’ agreement that had formed the basis for the practice of insurance companies in offering insurance or setting tariffs as regards complementary contracts with non-residents. Rather, the procedure followed suggested the opposite. It did not follow from the possibility that in retrospect there might have been a certain measure of administrative naiveté (bestuurlijke naïviteit) that any premeditated intention of the Netherlands Government unjustifiably to treat residents and non-resident treaty beneficiaries differently could be found established.
60. The Central Appeals Tribunal was not unaware that, in those cases where the basic insurance regime in the country of residence offered lesser cover than the Netherlands basic package, a reduction of the base of persons insured and thus the financial base of the insurance coupled with the disappearance of the solidarity levy (solidariteitstoeslag) provided for in the 1998 Health Insurance (Access) Act for basic insurance might to that extent have had the effect of raising premiums for complementary insurance. This was, however, inherent in the system introduced with effect from 1 January 2006, which the Court of Justice of the European Union had not considered in itself contrary to Community law, in which the position of residents and non-residents was not the same, and for that reason alone did not constitute an unjustified difference in treatment of residence in relation to non-residents by which freedom of movement of European Union citizens is restricted.
61. The Treaty establishing the European Community, as in force until 1 December 2009, included the following provisions:
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. ...
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this article shall not apply to employment in the public service.
The Court of Justice shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the ECB [European Central Bank];
(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.
Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
62. The Treaty establishing the European Community was amended and re-named Treaty on the Functioning of the European Union when the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community entered into force on 1 December 2009. Article 19 of the Treaty establishing the European Community became Article 21 of the Treaty on the Functioning of the European Union; former Article 39 became Article 45; and former Article 234 became Article 267.
63. At the relevant time, European Union Council Regulation 1408/71 (EC), in its relevant parts, read as follows:
“THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 51 and 235 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the Economic and Social Committee,
Whereas the provisions for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member Sates and should contribute towards the improvement of their standard of living and conditions of employment;
Whereas freedom of movement for persons, which is one of the cornerstones of the Community, is not confined to employed persons but also extends to self-employed persons in the framework of the freedom of establishment and the freedom to supply services;
Whereas the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulation applies to all persons insured under social security schemes for employed persons and for self-employed persons or by virtue of pursuing employment or self-employment;
Whereas it is necessary to respect the special characteristics of national social security legislations and to draw up only a system of coordination;
Whereas it is necessary, within the framework of that coordination, to guarantee within the Community equality of treatment under the various national legislations to workers living in the Member States and their dependants and their survivors;
...
Whereas employed persons and self-employed persons moving within the Community should be subject to the social security scheme of only one single Member State in order to avoid overlapping of national legislations applicable and the complications which could result therefrom;
Whereas the instances in which a person should be subject simultaneously to the legislation of two Member States as an exception to the general rule should be as limited in number and scope as possible;
Whereas with a view to guaranteeing the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible, it is appropriate to determine as the legislation applicable, as a general rule, that of the Member State in which the person concerned pursues employment of self-employment;
Whereas in certain situations which justify other criteria of applicability, it is possible to derogate from this general rule;
...
Whereas the specific position of pension claimants and pensioners and the members of their families calls for the provisions governing sickness insurance to adapted to their situation;
...
Whereas it is necessary to lay down special provisions which correspond to the special characteristics of the national legislations in order to facilitate the application of the rules of coordination,
HAS ADOPTED THIS REGULATION:
...
Pensions payable under the legislation of one or more States, in cases where there is no right to benefits in the country of residence
1. A pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislation of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides shall nevertheless receive such benefits for himself and for members of his family, in so far as he would, taking account where appropriate of the provisions of Article 18 and Annex VI, be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of such State. The benefits shall be provided under the following conditions:
(a) benefits in kind shall be provided on behalf of the institution referred to in paragraph 2 by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the State in whose territory he resides and were entitled to such benefits;
(b) cash benefits shall, where appropriate, be provided by the competent institution as determined by the rules of paragraph 2, in accordance with the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.
2. In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution as determined according to the following rules:
(a) where the pensioner is entitled to the said benefits under the legislation of a single Member State, the cost shall be borne by the competent institution of that State;
(b) where the pensioner is entitled to the said benefits under the legislation of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the pensioner has been subject for the longest period of time;
should the application of this rule result in several institutions being responsible for the cost of benefits the cost shall be borne by the institution administering the legislation to which the pensioner was last subject.
Pensions payable under the legislation of one or more of the Member States other than the country of residence where there is a right to benefits in the latter country
Where the pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor is any pension payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 28 (2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated.
Contributions payable by pensioners
1. The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity shall be authorized to make such deductions, calculated in accordance with the legislation concerned, from the pension payable by such institution, to the extent that the cost of the benefits under Article 27, 28, 28a, 29, 31 and 32 is to be borne by an institution of the said Member State.
2. Where, in the cases referred to in Article 28a, the acquisition of benefits in respect of sickness and maternity is subject to the payment of contributions or similar payments under the legislation of a Member State in whose territory the pensioner in question resides, by virtue of such residence, these contributions shall not be payable.
R. NETHERLANDS
1. Health care insurance
(a) As regards entitlement to benefits in kind under Netherlands legislation, persons entitled to benefits in kind for the purpose of the implementation of Chapters 1 and 4 of Title III of this Regulation shall mean: (i) persons who, under Article 2 of the Zorgverzekeringswet (Health Care Insurance Act), are obliged to take out insurance under a health care insurer,
and
(ii) insofar as they are not already included under point (i), persons who are resident in another Member State and who, under this Regulation, are entitled to health care in their state of residence, the costs being borne by the Netherlands.
(b) The persons referred to in point (a)(i) must, in accordance with the provisions of the Zorgverzekeringswet (Health Care Insurance Act), take out insurance with a health care insurer, and the persons referred to in point a(ii) must register with the College voor zorgverzekeringen (Health Care Insurance Board).
(c) The provisions of the Zorgverzekeringswet (Health Care Insurance Act) and the Algemene wet bijzondere ziektekosten ([General Exceptional Medical Expenses Act]) concerning liability for the payment of contributions shall apply to the persons referred to under point (a) and the members of their families. In respect of family members, the contributions shall be levied on the person from whom the right to health care is derived.
(d) The provisions of the Zorgverzekeringswet (Health Care Insurance Act) concerning late insurance shall apply mutatis mutandis in the event of late registration with the College voor zorgverzekeringen (Health Care Insurance Board) in respect of the persons referred to in point a(ii).
...”
Benefits in kind for pensioners and members of their families who are not resident in a Member State under whose legislation they are entitled to benefits
1. In order to receive benefits in kind in the territory of the Member State in which he resides, under Article 28 (1) of the Regulation [i.e. Council Regulation (EEC) 1408/71], a pensioner and the members of his family shall register with the institution of the place of residence by submitting a certified statement testifying that he is entitled to the said benefits for himself and for the members of his family, under the legislation or one of the legislations under which a pension is payable.
2. This certified statement shall be issued, at the request of the pensioner, by the institution or one of the institutions responsible for payment of the pension or, where appropriate, by the institution empowered to determine entitlement to benefits in kind, as soon as the pensioner satisfies the conditions for acquisition of the right to such benefits. If the pensioner does not submit the certified statement, the institution of the place of residence shall obtain it directly from the institution or institutions responsible for payment of the pension or, where appropriate, from the institution empowered to issue such certified statement. Whilst awaiting the receipt of this certified statement, the institution of the place of residence may, in the light of the documentary evidence accepted by it, register the pensioner and the members of his family provisionally. This registration shall not be applied by the institution responsible for the payment of benefits in kind until the institution of the place of residence has delivered the certified statement provided for in paragraph 1.
3. The institution of the place of residence shall inform the institution which has issued the certified statement provided for in paragraph 1 of every registration effected in accordance with the provisions of the said paragraph.
4. When making any application for benefits in kind the pensioner must prove to the institution of the place of residence, by means of the receipt or the counterfoil of the money order of the last payment made, that he is still entitled to a pension.
5. The pensioner or the members of his family shall inform the institution of the place of residence of any change in their situation which might alter their entitlement to benefits in kind, in particular any suspension or withdrawal of the pension and any transfer of their residence. The institutions responsible for the pension shall also inform the institution of the pensioner’s place of residence of any such change.
6. The Administrative Commission shall, to the extent necessary, fix the procedure for determining the institution which shall bear the cost of the payment of benefits in kind, in the case referred to in Article 28 (2) (b) of the Regulation.”
64. As relevant to the present case, the Health Care Insurance Act at the relevant time provided as follows:
1. Persons living abroad and their family members, who pursuant to a Regulation of the Council of the European Communities or the application of such Regulation pursuant to the Agreement on the European Economic Area or a treaty on social security are entitled in case of need to care or reimbursement of the costs thereof, as provided for in the legislation on health care insurance of their country of domicile, shall, unless they are subject to compulsory insurance under the present Act, register with the Health Care Insurance Board.
2. The persons referred to in the first paragraph shall owe a contribution to be determined by ministerial regulation, which for purposes of the application of section 22 above and also, in respect of a portion of that contribution to be determined by said regulation, for the application of the Health Care Allowance Act (Wet op de zorgtoeslag) shall be considered as a premium for health care insurance.”
65. The following is taken from the drafting history of the Health Care Insurance Act (Explanatory memorandum (Memorie van Toelichting), Lower House of Parliament, parliamentary year 2003-04, 29 763, no. 3):
"I Introduction and summary
The aims of the Bill: Greater efficiency, less central direction, good accessibility
By means of the bill for the Health Care Insurance Act the Government wish to put an end, starting from 2006, to the present incoherent situation (verbrokkelde situatie) by realising one statutory insurance regime for all Netherlands residents. This net insurance regime should contribute as much as possible to effective and high-quality health care. The change in the system of health care insurance to be enacted by the Health Care Insurance Act is not isolated, but is part of a wider oriented revision of the direction (sturing) and division of responsibilities in the health care field.
...
Greater freedom of choice and responsibility for insured persons
The new Health Care Insurance Act will offer every resident the possibility to enter into a contract of insurance with the health care insurer of his choice. Solidarity within the system is expressed in obligatory insurance (verzekeringsplicht) for the citizens and an unconditional duty to offer insurance for the health care insurers. Health care insurers have the duty to offer health care insurance to everyone, regardless of personal characteristics, on the same terms. The law shall indicate what forms of health care are covered by health care insurance.
...
In conclusion
Against the background of the reforms in the health care system in the last fifteen years (such as the introduction of commercial competition in health care insurance and the introduction of solidarity levies in private insurance) the Government consider the statutory regulation of the new health care insurance a logical and necessary follow-up rather than a breach with the past. In view of the private elements which continue to characterise both public and private health care insurance (zowel de ziekenfondsverzekering als de particuliere verzekeringen) the Government make a deliberate choice for a private-law structure of health care insurance. It is important in this respect that the European Commission takes it to be self-evident that the freedom of the member States of the European Union to organise their social-security systems as they see fit also implies the freedom to leave cover of the insurance risk to private insurance enterprises. Demands can be made on these enterprises in the public interest. In this bill, space for private initiative and entrepreneurship goes hand in hand with strong public preconditions. In this way the social tradition of the public health care funds and the market tradition of private insurance can be brought together. Both public health care funds and private health care insurers can transform into insurance companies which carry out the Health Care Insurance Act. In this way continuity in the functioning of the health care system is sufficiently ensured. All insured persons will be brought under the umbrella of the European social insurance regulation. Insured persons who are resident or staying abroad can enjoy medical health care there paid for by Netherlands insurance.
...
VI Cross-border health care
The entry into force of the Health Care Insurance Act will draw the entire population into a social health care insurance. This will put an end to the Netherlands position, which is unique in Europe, in which 30 per cent of the population is forced to take out private insurance on the free market. The Health Care Insurance Act will be reported to the European Commission as a social security scheme within the meaning of Council Regulation (EEC) No. 1408/71. From this it may follow that persons resident outside the Netherlands may become subject to Netherlands social security legislation and therefore find themselves obliged to take out health care insurance. These persons will owe premium pursuant to the Netherlands legislation.
There is also a category of persons who do not reside in the Netherlands, but who, being entitled to a Netherlands pension, are entitled to health care at the expense of the Netherlands as the consequence of the application of the European social security regulation [i.e. Council Regulation (EEC) No. 1408/71] or a social insurance treaty in the country of residence. As against this treaty-based right to care, the international arrangements concerned provide that the State which bears the expense of medical care may charge premium therefor. The statutory base for thus charging premium is set out in the bill. It is intended to set a nominal premium for this category, based on the average premium charged in the Netherlands. The income-dependent contribution will be levied the same way as is done in the case of persons resident in the Netherlands.
Council Regulation (EEC) No. 1408/71 and the social security treaties entered into by the Netherlands provide that the medical care to which a person is entitled pursuant to the Regulation or a treaty shall be provided in accordance with the rules in force under the social health care legislation of the country where the care is provided. Accordingly, a Netherlands insured person resident or staying in, for example, France will receive medical care from the French social health care insurance in accordance with French legislation. The cost of such care will be borne by the Netherlands health care insurance. For those formerly insured by public health care funds this is a familiar phenomenon, for those formerly insured privately this is a new situation.
It will be provided for persons resident abroad and entitled to health care at the expense of the Netherlands based on a social insurance treaty entered into by the Netherlands with another country or on Council Regulation (EEC) No. 1408/71 that they must register with the Health Care Insurance Board. That Board will then see to the reimbursement of the expenses which that other country incurs in providing medical care to the person concerned. This situation differs from the present situation in public health care insurance, in which the persons concerned are obliged to register with a specific public health care fund. Because such an indication in the new situation of the Health Care Insurance Act can be seen as a disturbance of market relations and a health care insurer cannot influence health care use and the expenses involved in the other country, a choice has been made for registration with the Health Care Insurance Board. In this way, a ‘market neutral’ solution has been found, in which, as regards the premium which the persons concerned must pay, the profit component need not be taken into account. The Health Care Insurance Board has so advised, at our request, in the report ‘International aspects of the Health Care Insurance Act’ (Internationale aspecten van de Zorgverzekeringswet) of 29 January 2004, consecutively numbered 23098110.
...”
66. In its relevant part, the Health Care Insurance Act (Introduction and Adaptation) Act provides:
...
2. An agreement concerning insurance for medical care or the costs thereof concluded for or with an insured person living abroad who, by the application of a regulation of the Council of the European Communities or the application of such a regulation pursuant to the Agreement on the European Economic Area or to a treaty on social security, is entitled to health care or to the reimbursement of the costs thereof, as provided in the legislation on health care insurance of his country of residence, shall be terminated as from 1 January 2006, to the extent that rights could be derived from that agreement equivalent to those to which the person concerned is entitled from that date by the application of such a regulation or treaty, provided that before 1 May 2006 the insured person complied with the obligation to register with the Health Care Insurance Board under section 69 of the Health Care Insurance Act. ...”
67. The Health Care Insurance Rules (Regeling zorgverzekering), in their relevant part, provide as follows:
1. The contribution payable by a person referred to in section 69(1) of the Health Care Insurance Act shall be calculated by multiplying the basic contribution by the number arrived at by calculating the ratio between the average healthcare expenditure for a person which is to be borne by the social health care insurance in that person’s country of residence and the average healthcare expenditure for a person which is to be borne by the social healthcare insurance in the Netherlands.
2. The basis for the contribution shall be the sum of:
a) an income dependent contribution calculated according to [relevant provisions of the Health Care Insurance Act];
(b) an income dependent contribution calculated in accordance with the premium due for the AWBZ pursuant to the Social Insurance Financing Act (Wet financiering sociale verzekeringen) [with reductions as may be required by the application of the 2001 Income Tax Act (Wet inkomstenbelasting 2001)];
(c) from the first day of the calendar month following the calendar month in which this person has reached the age of eighteen, a monthly contribution corresponding to one-twelfth of the provisionally determined premium for a person insured under health care insurance in the year of the calculation (berekeningsjaar) ...
The contribution referred to in section 6.3.1 for a person referred to in section 69(1) of the Health Care Insurance Act who is entitled to a pension, and for the members of his family, shall be deducted from that pension by the institution which pays that pension and paid to the healthcare insurance fund.”


ITEMID: 001-101327
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MOLODORYCH v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1982. He is currently serving a prison sentence at Cherkasy Correctional Colony (Prison) (Черкаська Виправна Колонія № 62) (“the Colony”).
5. On 12 September 2001 the applicant was arrested by the police on suspicion of causing grievous bodily harm to D. According to the police, on 11 September 2001 the applicant broke into D.'s house and attacked him with a knife as he was sleeping. D. received wounds to the left side of the chest, the left forearm and the left knee. As D. resisted the attack, the applicant pulled back. The applicant stayed at the scene of the crime and called the police and an ambulance.
6. On 12 September 2001 the applicant was questioned by the police concerning the incident. The applicant was not assisted by a lawyer during his questioning.
7. On 21 September 2001 the applicant was officially charged with aggravated hooliganism (Article 296 § 4 of the Criminal Code).
8. For an unspecified period before the end of 2001 the applicant was assisted by a lawyer of his own choosing, Mr N.
9. On 25 December 2001 the investigations were completed and the case was referred to Tarasha Court (Таращанський районний суд Київської області) for trial.
10. At a preliminary hearing on 18 January 2002 the court decided to remit the case for additional investigation.
11. On 23 April 2002 the additional investigation was completed and the case was sent to the same court.
12. On 12 August 2002 Tarasha Court granted the applicant leave to be defended in the proceedings by his mother, who was not a lawyer.
13. Between May 2002 and March 2003 the court held several hearings on the merits of the case and ordered a psychiatric examination of the applicant, which was completed by March 2003. In the course of the court proceedings during the aforementioned period and during the ensuing investigations the applicant was assisted by a lawyer of his own choosing, Mr M.
14. On an unspecified date the prosecutor taking part in the proceedings requested the court to remit the case for additional investigation, stating that there was evidence that the applicant had committed a more serious crime than the one with which he had been charged.
15. On 12 March 2003 the court found that the criminal qualification of the applicant's actions was incorrect and remitted the case to the prosecutors for additional investigation. On 28 May 2003 the Kyiv Regional Court of Appeal (Апеляційний суд Київської області) dismissed an appeal by the applicant's lawyer against that decision, holding that the reasons for the remittal were based on the case materials and the prosecutor's request. The decision of the Court of Appeal did not suggest that it was subject to a further appeal.
16. On 17 July 2003 the prosecutors brought new charges against the applicant, accusing him of attempted murder for hooligan motives and of unlawful entry into a private residence (Articles 15 § 2, 115 § 2 (7), and 162 § 1 of the Criminal Code). One of the possible sanctions under Article 115 § 2 of the Criminal Code was life imprisonment.
17. On 25 July 2003 the case was referred to the Court of Appeal for trial.
18. On an unspecified date a new lawyer, Mr T., appointed by the applicant, joined the proceedings before that court.
19. On 15 October 2003 the court found the applicant guilty of unlawful entry into a private residence and aggravated hooliganism and sentenced him to six years' imprisonment.
20. On 25 March 2004 the Supreme Court quashed the judgment of 15 October 2003, holding that the Court of Appeal had wrongly assessed evidence and misapplied substantive law in the case. It decided to remit the case to the same court for fresh consideration.
21. In May-June 2004 the applicant appointed a new lawyer to assist him, Mr V., the other lawyers, Mr M. and Mr T., having ceased to represent the applicant for unspecified reasons.
22. On 4 June 2004 the Court of Appeal remitted the case for additional investigation, finding that the prosecutors had failed to establish the motive for the applicant's actions on 11 September 2001.
23. On 29 July 2004 the Supreme Court upheld the ruling of 4 June 2004. In the proceedings before the Supreme Court the applicant was represented by his mother.
24. On 8 June and 1 September 2004, respectively, the applicant was allowed to familiarise himself with the decisions of 4 June and 29 July 2004. No copies of those decisions were given to him.
25. According to the Government, on 27 September 2004 the case was received by the prosecutors, who started additional investigations. The applicant submitted that the case had been received by the prosecutors on 1 September 2004.
26. In the course of the additional investigations the prosecutors questioned several witnesses and ordered an expert examination of the knife with which the applicant had attacked the victim. The examination was completed on 18 October 2004.
27. On 21 October 2004 a lawyer, Mr L., was appointed by the prosecutors to assist the applicant in the proceedings. According to the applicant, Mr L. did not assist him at all.
28. On the same day the applicant was questioned by the prosecutors concerning the issues raised before the expert examining the knife. It is unclear whether the lawyer L. was present during the applicant's questioning.
29. On 23 October 2004 the investigators brought new charges against the applicant, following a requalification of his actions on 11 September 2001. The applicant was accused of attempted murder for mercenary motives and robbery accompanied by infliction of grievous bodily harm (Articles 15 § 3, 115 § 2 (6), and 187 § 3 of the Criminal Code).
30. On 24 October 2004 the additional investigations were completed and on 12 November 2004 the case was sent to the Court of Appeal for trial.
31. On 2 December 2004 the court held a preliminary hearing in the case, which the applicant's lawyer failed to attend.
32. On 24 December 2004 the Court of Appeal found the applicant guilty of attempted murder for mercenary motives and of robbery accompanied by infliction of grievous bodily harm. The applicant was sentenced to ten years' imprisonment, which was to be calculated from 12 September 2001, with confiscation of all his property. He was also ordered to pay 10,711.90 Ukrainian hryvnias (UAH) to D. in compensation and UAH 984.90 to a hospital in which D. had been treated.
33. The court based its judgment partially on the statements of the applicant made before it and his statements obtained during the pre-trial investigations, the statements of the victim, an eyewitness and three other witnesses heard by the court, and reports from seven experts.
34. The court noted that the applicant did not deny that he was involved in the incident, though his submissions concerning it during various stages of the proceedings differed substantially.
35. By a separate ruling of 24 December 2004, the Court of Appeal found that the persons responsible for the pre-trial investigations had not complied with the requirements of promptness, objectivity and completeness, because of which the case had been remitted for additional investigation on three occasions. It ordered the prosecutors to adopt relevant measures in respect of those irregularities.
36. The applicant's mother, acting on his behalf, and the applicant himself, lodged separate appeals in cassation with the Supreme Court. They alleged that the Court of Appeal had erred in its assessment of the evidence and had wrongly applied the law in the case, that the pre-trial investigations had not been completed in due time, that the applicant had not been given accurate information concerning the charges against him, that his right to defence had been violated as no lawyer had been appointed to assist him from the beginning of the additional investigations in September 2004, and that because of this the applicant had not had sufficient time to prepare his defence.
37. According to the applicant, the lawyer appointed for him by the authorities did not assist him in the preparation of his appeal in cassation.
38. On 17 March 2005 the Supreme Court upheld the judgment of 24 December 2004, finding, inter alia, that the applicant's right to defence had not been violated.
39. Following his arrest on 12 September 2001, the applicant was placed in Tarasha Police Preliminary Detention Centre (Ізолятор тимчасового тримання Таращанського РВ ГУ МВС України в Київській області) (“the ITT”).
40. On 14 September 2001 Tarasha Court remanded the applicant in custody in view of the pending criminal investigations against him and ordered his placement in Kyiv Pre-Trial Detention Centre (Слідчий ізолятор № 13 Управління Державного Департаменту України з питань виконання покарань в м. Києві та Київській області) (“the SIZO”). The court found that the applicant was accused of a particularly serious crime (aggravated hooliganism) punishable by the deprivation of liberty for a term of over ten years and that if the applicant remained at liberty he might seek to evade investigation and trial and obstruct the establishment of the truth in the case.
41. By a decision of 12 November 2001, the maximum period of the applicant's detention was extended for four months. Tarasha Court put forward similar reasons for the applicant's continued detention as were contained in its decision of 14 September 2001.
42. Subsequently, the applicant's continued pre-trial detention was ordered by Tarasha Court decisions of 18 January, 22 May and 22 August 2002 and 12 March 2003, and of the Court of Appeal of 4 June and 2 December 2004, according to which that there were no grounds for changing the preventive measure applied in respect of the applicant.
43. For the same reasons, the applicant's requests of 12 August 2002, 11 March 2003 and 27 May 2004 for release from detention raised at court hearings in his case were rejected by Tarasha Court on 12 August 2002 and 11 March 2003 and by the Court of Appeal on 27 May 2004 respectively. On 21 March 2003 the Court of Appeal refused to consider the applicant's appeal against the decision of 11 March 2003, holding that procedural decisions adopted in the course of a trial, including decisions concerning preventive measures, were not subject to appeal.
44. The applicant's request for release, which he had lodged with the Tarasha Court on 22 January 2002, was not considered on the merits, the applicant having been informed by a letter from that court that the matter had already been determined in its decision of 18 January 2002.
45. The applicant's requests for release were mainly based on the following arguments: after the incident on 12 September 2001 the applicant had not tried to run away and had made no attempts to obstruct the collection of evidence or to destroy it; the charges against him were groundless; he was detained for a long period of time after his arrest in September 2001; and he had health problems for which he could not receive adequate treatment while in detention. In his submissions before the courts, the applicant suggested that he could be released on an undertaking not to abscond.
46. Relying on the same arguments, the applicant appealed against the decision of 12 March 2003 (see paragraph 42 above). In its decision of 28 May 2003 the Court of Appeal acknowledged the applicant's appeal, though it did not elaborate on the matter.
47. According to the applicant, on 24 November 2003 he lodged with the Court of Appeal an appeal in cassation against the decisions of 12 March and 28 May 2003, though this was not considered by the courts. The applicant did not provide a copy of his appeal in cassation. The Government submitted that the applicant had not appealed in cassation against the decisions of 12 March and 28 May 2003.
48. The applicant was detained in the ITT until 11 September 2002, when he was placed in the SIZO. On 7 June 2005 he was transferred to the Colony.
49. According to the applicant, on 20 January 2001 he became ill and was seen by an ambulance paramedic, who was not competent to establish a diagnosis or prescribe treatment. The applicant raised this matter before Tarasha Court in one of his requests for release, but to no avail. The applicant provided no further details of the incident on 20 January 2001.
50. During his detention in the SIZO and the Colony the applicant underwent medical checks, including X-ray examinations and blood tests, on 12 September 2001, 11 September 2002, 18 April and 24 October 2003, 17 May, 7 June and 20 August 2005, and 26 June 2006. There were no serious health issues noted by the doctors examining the applicant.
51. The applicant requested medical assistance on three occasions, namely on 14 September and 28 October 2005 and 27 April 2006. He was diagnosed with bronchitis and periodontitis, for which he was treated by doctors.
52. On 27 June 2006 the applicant was examined by a medical panel composed of a prison doctor, a general practitioner, a dentist and a psychiatrist. They concluded that the applicant was “practically healthy” and that his state of health had not deteriorated since his arrival at the Colony. An additional medical examination of the applicant on 12 December 2006 confirmed those conclusions.
53. According to the applicant, in the Colony he was at risk of contracting tuberculosis, as prisoners suffering from that condition were detained in the same building as the applicant, though on another floor. He also stated that between September and October 2005 the building had not been sufficiently heated and he had had no warm clothes. The applicant alleged that the light in the Colony was inadequate, but provided no further details.
54. The relevant provisions of the Constitution read as follows:
“Every person has the right to freedom and personal inviolability.
No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law ...”
55. The relevant extracts from Chapter 3 (Persons participating in the proceedings, their rights and obligations) read as follows:
“Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court is compulsory:
...
(4) from the moment of the person's arrest or when he or she is [officially] charged with a criminal offence carrying a penalty of life imprisonment...”
56. The relevant extracts from Chapter 10 (Inquiry), as worded at the material time, read as follows:
“A body of inquiry shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed, subject to the existence of one of the following grounds:
1) that the person was discovered whilst committing the crime or immediately after committing it;
2) that eyewitnesses, including victims, directly identify that person as the one who committed the crime;
3) that clear traces of the crime are found on the body of the suspect, or on his clothes, or in his home.
If there are other data constituting grounds for suspecting a person of having committed a crime, he may be detained only if he has attempted to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established.
...
Within seventy-two hours of the arrest the body of inquiry shall:
1) release the arrested person if the suspicion that he has committed the crime has not been confirmed, or the [maximum] term of detention following arrest has expired, or if the arrest was carried out in violation of the requirements provided for in parts 1 and 2 of this Article;
2) release the arrested person and select a non-custodial preventive measure;
3) bring the arrested person before a judge with a request for his placement in custody...
The suspect's detention following arrest shall not last more than seventy-two hours...”
“The procedure for short-term detention of persons suspected of committing a crime shall be determined by the [relevant] regulations...”
“... If the suspect has been arrested or placed in custody ... he shall be questioned immediately, or, if an immediate questioning is not possible, within twenty-four hours of his arrest ...”
“An investigator may arrest and question a person suspected of having committed a crime according to the procedure provided for in Articles 106, 106-1, and 107 of the Code...”
57. The relevant extracts from Chapter 13 (Preventive measures) read, as worded at the material time, as follows:
“Preventive measures shall be applied in respect of a suspect, accused, defendant or convict with the aim of preventing attempts to abscond from the investigation or trial, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions.
Preventive measures shall be applied if there are sufficient grounds to consider that the suspect, accused, defendant or convict will try to abscond from the investigation or trial, or evade complying with procedural decisions, or obstruct the establishment of the truth in a criminal case, or pursue criminal activities.
If there are not sufficient grounds to apply a preventive measure, the suspect, accused, defendant or convict shall be required to give a written undertaking to appear when summoned by the person conducting the inquiry, the investigator, prosecutor, or the court, and to inform them of any change of his place of residence.
In the case of the application of a preventive measure in respect of a suspect, he shall be [officially] charged within ten days of the date the preventive measure was applied. If no charges are brought [against him] within that period, the preventive measure shall be lifted.”
“The preventive measures shall be as follows:
1) a written undertaking not to abscond;
2) a personal surety;
3) the surety of a non-governmental organisation or labour collective;
3-1) bail;
4) placement in custody;
5) supervision by the command of a military unit.
The arrest of a suspect is a temporary preventive measure applied on the grounds and according to the procedure provided for in Articles 106, 115, and 165-2 of the Code.”
“In deciding on the application of a preventive measure, in addition to the circumstances specified in Article 148 of the Code, such circumstances as the gravity of the crime of which the person is suspected or with which he is charged, his age, state of health, family and financial status, type of activity, place of residence and other circumstances relating to the person shall be taken into consideration.”
“Placement in custody, as a preventive measure, shall be applied in cases concerning criminal offences carrying a penalty of more than three years' imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law provides for a punishment of up to three years' imprisonment...”
“Detention during a pre-trial investigation shall not last more than two months.
When it is impossible to complete the investigation within the period provided for in part 1 of this Article and there are no grounds for discontinuing the preventive measure or replacing it with a less restrictive measure, [the term of pre-trial detention] may be extended:
(1) for up to four months – upon a request approved by the prosecutor supervising the compliance with the laws of the bodies of inquiry and investigation, or at the same prosecutor's [request], by a judge of the court which ordered the application of the preventive measure;
(2) for up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, regional prosecutors, Kyiv and Sevastopol prosecutors, and prosecutors of equal rank, or on the same prosecutor's [request] in cases concerning serious and particularly serious crimes, by a judge of the court of appeal;
(3) for up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor's [request] in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine;
In each case, when it is impossible to complete the investigation within the periods specified in parts 1 or 2 of this Article and there are no grounds for changing the preventive measure, the prosecutor supervising compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges. In such an event, the part of the case relating to criminal offences or episodes of criminal activity the investigation of which has not been completed shall be disjoined from the proceedings pursuant to the requirements of Article 26 of the Code and completed in accordance with the general rules.
The term of pre-trial detention shall be calculated from the moment when the person was placed in custody, or, if his placement in custody was preceded by his arrest [within the meaning of Article 115 of the Code], from the time of the arrest. The term of pre-trial detention shall include time during which the person has undergone inpatient expert examination in a psychiatric medical institution of any type. If the person is repeatedly placed in custody within the framework of the same proceedings ... or if new charges are brought against him, the time the person has spent in detention before this shall be taken into account when calculating the term of pre-trial detention.
The term of pre-trial detention shall end on the day the court receives the case file. If the case is withdrawn from the court by the prosecutor pursuant to Article 232 of the Code, the running of the time shall resume on the day on which the prosecutor receives the case.
The materials of the criminal case in which the investigation has been completed shall be given to the detainee and his defence no later than a month before the expiry of the maximum term of detention set by part 2 of this Article.
If the time-limit for providing the accused and his defence with the case materials is not complied with ... the accused shall be released immediately after the expiry of the maximum term of detention set by part 2 of this Article. In such a case, the accused and his defence shall continue to be entitled to familiarise themselves with the case materials.
If the time-limit for providing the accused and his defence with the case materials is complied with ... but the time allowed for the accused and his defence to familiarise themselves with the case materials appears to be insufficient, the maximum term of detention set by part 2 of the Article may be extended by a judge of the court of appeal at the investigator's request approved by the Prosecutor General of Ukraine or his Deputy, or upon the same prosecutor's or his deputy's request. If there are several accused held in detention and the period provided for in part 6 of this Article appears to be insufficient for at least one of them to familiarise himself with the case materials, such a request may be submitted in respect of an accused who has already familiarised himself with the case materials, provided it remains necessary to keep that person or persons in detention and there are no grounds for the application of another preventive measure.
If the case is returned by the court to the prosecutor for additional investigation, the term of pre-trial detention shall be calculated from the time the case is received by the prosecutor and shall not exceed two months. Further extension of that term shall be ordered in accordance with the procedure and within the limits provided for in part 2 of this Article, and the time the accused was held in detention before the referral of the case to the court shall be taken into account.
If the term of pre-trial detention ... provided for in parts 1 and 2 of this Article has ended and if this term was not extended in accordance with the procedure laid down in the Code, the body of inquiry, investigator or prosecutor shall immediately release the person from detention.
Governors of pre-trial detention centres shall immediately release from detention accused persons in respect of whom no court resolution extending the term of pre-trial detention has been received on the day of expiry of the term of pre-trial detention provided for in parts 1, 2, and 6 of this Article. They shall accordingly notify the person or authority before whom the case is pending and the prosecutor supervising the investigation.”
“Placement in custody, as a preventive measure, shall be applied only pursuant to a reasoned resolution of a judge or ruling of a court...
A preventive measure may be replaced by another preventive measure or lifted by the body of inquiry, investigator, prosecutor, judge or a court in accordance with part 1 of the Article.
A preventive measure may be changed or lifted if there is no need for it to be applied ...”
“A judge shall issue a resolution and a court shall issue a ruling on the application, discontinuation or change of a preventive measure...
In the resolution (ruling) on the application or change of a preventive measure ... reasons for its application or change shall be mentioned... In the resolution (ruling) discontinuing the application of a preventive measure reasons shall be mentioned...
The person concerned shall be immediately notified of the resolution (ruling)... At the same time the person shall be informed about the procedure and time-limits for challenging the resolution or ruling.”
“At the stage of pre-trial investigation a non-custodial preventive measure shall be selected by a body of inquiry, investigator [or] prosecutor.
If a body of inquiry [or] investigator considers that there are grounds for ... placement in custody [it or] he shall, with the prosecutor's consent, submit a request to the court. The prosecutor is entitled to submit a similar request. When considering the matter the prosecutor shall familiarise himself with all the material containing grounds for placement in custody, check whether the evidence was lawfully obtained and whether it is sufficient to bring charges [against the suspect].
The request shall be considered within seventy-two hours of the arrest of the suspect or accused.
If the request concerns placement in custody of [a suspect or accused] who is at liberty, the judge shall have the power ... to issue a warrant for [his] arrest and escort to the court. In such case, the detention shall not exceed seventy-two hours, or, if the person concerned is outside the locality in which the court operates, [the detention] shall not exceed forty-eight hours from the time the arrested person was brought to the locality.
Upon receipt of the request, the judge shall study the material in the criminal case file submitted by the body of inquiry, investigator [or] prosecutor, question the suspect or accused, and, if necessary, obtain explanations from the person dealing with the case, hear the prosecutor, [and] the defence lawyer if [the latter] has appeared before the court, and deliver a resolution:
1) refusing the preventive measure, if there are no grounds for its application;
2) ordering placement in custody...
Having refused ... to place the suspect [or] accused in custody, the court shall have the power to apply a non-custodial preventive measure to him or her.
The judge's resolution may be appealed against to the court of appeal by the prosecutor, suspect, accused, his defence or representative within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge's resolution.
If it is necessary to study further the personal circumstances of the arrested person or to establish other circumstances relevant for the question of the application of a preventive measure ... the judge shall have the power to extend the applicant's detention for up to ten or, at the request of the suspect or accused, fifteen days...”
“When there are no grounds for changing the preventive measure or if it is impossible to complete the investigation of the case in the part relating to proven charges, an investigator, upon the relevant prosecutor's approval, or the same prosecutor, shall apply to the court with a request for an extension of the term of pretrial detention. The request shall contain reasons, in connection with which it is necessary to extend the term, circumstances which must be examined, evidence that the detainee committed the crime [of which he or she is accused], and grounds for the necessity to maintain the preventive measure.
The request for extension of the term of the person's pre-trial detention shall be submitted to the court:
(1) in the event of an extension of the term of pre-trial detention for up to four months not later than five days before the expiry of the term of the person's detention;
(2) in the event of an extension of the term of pre-trial detention for up to nine months not later than fifteen days before the expiry of the term of the person's detention;
(3) in the event of an extension of the term of pre-trial detention for up to eighteen months not later than twenty days before the expiry of the term of the person's detention;
(4) in the event of an extension of the term of pre-trial detention for the accused and his defence to familiarise themselves with the case materials not later than five days before the expiry of the maximum term of pre-trial detention;
Having received the request, the judge shall examine the materials of the criminal case; if necessary, [the judge shall] question the accused, the investigator, hear the prosecutor, the defence if [the latter] has appeared [before the judge], following which [the judge] shall issue a resolution extending the term of pre-trial detention, if there are grounds for this, safe in the case envisaged in paragraph 7 of Article 156 of the Code, or [the judge] shall refuse its extension.
The prosecutor, suspected, accused or his defence or legal representative may lodge an appeal against the resolution of the judge within three days of its delivery. Such an appeal shall not suspend the execution of the judge's resolution. The resolutions issued by judges of a court of appeal and of the Supreme Court shall not be subject to an appeal...”
58. The relevant extracts from Chapter 23 (Preliminary consideration of the case by the judge) read as follows:
“The judge shall examine ... the following matters:
...
(4) whether there are grounds for changing, discontinuing or applying a preventive measure;
...”
“Preliminary consideration of a case shall be performed by a single judge with the compulsory participation of a prosecutor. Other persons taking part in the proceedings shall also be informed about the day of the preliminary hearing, though their failure to appear shall not prevent [the judge] from considering the case...”
“In the course of preliminary consideration of a case the judge ... shall issue a resolution remitting the case for additional investigation if there were [procedural shortcomings] ... in the course of institution of the proceedings, inquiry or pre-trial investigation, without rectification of which the case may not be admitted for trial.
...The judge may also remit a case for additional investigation if there are grounds for charging the accused with a more serious crime ... or with a crime with which he or she was not charged earlier...
In the resolution the judge shall state reasons for remitting the case for additional investigation... In the same resolution [the judge] shall decide on the preventive measure in respect of the accused.
...
The parties may lodge an appeal with a court of appeal, or if the case has already been considered by a court of appeal acting as a first-instance court, [the parties may lodge] an appeal in cassation with the court of cassation against the resolution within seven days of its delivery.”
“Having decided to commit [an accused] for trial, the judge shall resolve the following issues:
(1) concerning the appointment of a defence lawyer, if his or her participation in the case is compulsory;
(2) concerning the change, discontinuation or application of a preventive measure;
...”
59. The relevant extracts from Chapter 24 (General provisions on judicial consideration (trial)) read as follows:
“In the course of consideration of a case the court may issue a ruling changing, discontinuing or selecting a preventive measure in respect of a defendant, if there are grounds for this.
The procedure for selecting detention as a preventive measure shall be governed by the relevant provisions of Chapter 13 of the Code.”
“A case may be remitted for additional investigation on the ground of incompleteness or wrongfulness of the pre-trial investigations only if such incompleteness or wrongfulness cannot be remedied [in the trial].
The question concerning the remittal of a case for additional investigation shall be determined by a reasoned ruling of the court or a resolution by the judge...
The parties may lodge an appeal with a court of appeal, or if the case has already been considered by a court of appeal acting as a first-instance court, [the parties may lodge] an appeal in cassation with the court of cassation against the resolution within seven days of its delivery.”
60. The relevant extracts from Chapter 30 (Consideration of the case on appeal), as worded at the material time, read as follows:
“An appeal may be lodged against:
(1) judgments adopted by local courts which have not entered into force;
(2) resolutions adopted by local courts concerning the application or nonapplication of forced measures of an educational or medical nature;
An appeal may also be lodged against:
(1) rulings (resolutions) adopted by a local court discontinuing the proceedings in a case or remitting a case for additional investigation;
(2) separate rulings (resolutions) adopted by a local court;
(3) other resolutions of local courts in cases envisaged by the Code.”
“The following persons are entitled to lodge an appeal:
(1) a convict, his legal representative and defence concerning the part of the case relating to the interests of the convict;
...
(6) an accused whose case has been remitted for additional investigation, his legal representative and defence, concerning the reasons and grounds for the remittal of the case for additional investigation;
...
(12) other persons in cases envisaged by the Code.”
“A court of appeal shall consider the case on the day determined by the firstinstance court...”
“...
Having considered appeals against the decisions envisaged in part 2 of Article 347 of the code, a court of appeal [has the power to]:
(1) adopt a ruling leaving the ruling or resolution without any changes and dismissing appeals, quashing the ruling or resolution and remitting it to the court of first instance for fresh consideration ... changing the ruling or resolution;
(2) dopt a ruling while quashing the first-instance court's ruling or resolution in full or in part.”
“Judicial decisions listed in part 2 of Article 347 of the Code shall be reviewed on appeal in accordance with the requirements of this Chapter... Appeals lodged against resolutions of a judge delivered pursuant to Articles 52-5, 165-2, 165-3, 177, [and] 205 of the Code shall be considered not later than three days of its arrival at the court of appeal. [Case] material pertinent to the consideration of such appeals shall be obtained promptly on demand.
...”
61. The relevant extracts from Chapter 31 (Cassation proceedings), as worded at the material time, read as follows:
“The [following decisions] may be reviewed in cassation:
(1) judgments, rulings and resolutions of a court of appeal which it has adopted acting as a court of first instance;
(2) udgments and resolutions of a court of appeal adopted on appeal.
Judgments and resolutions of [local] ... courts and rulings of a court of appeal concerning those judgments and resolutions may also be reviewed in cassation.”
“The persons listed in Article 348 of the Code may lodge an appeal in cassation against the judicial decisions envisaged in part 1 of Article 383 of the Code.
[The following persons] are entitled to lodge appeals in cassation against the judicial decisions envisaged in part 2 of Article 383 of the Code:
(1) a convict, his legal representative and defence concerning the part of the case relating to the interests of the convict;
...”
“An appeal in cassation ... against the judicial decisions envisaged in part 1 of Article 383 of the Code shall be scheduled for a hearing in cassation within two months of its submission to the court of cassation, an appeal in cassation ... against the judicial decisions envisaged in part 2 of Article 383 of the Code – within two months of the delivery of a ruling admitting the case for consideration in cassation.”
“Having considered a case in cassation, the court of cassation shall adopt one of the following decisions:
(1) a decision leaving the judgment, resolution or ruling unchanged and dismissing appeals in cassation;
(2) a decision quashing the judgment, resolution or ruling and remitting the case for additional investigation or fresh trial or consideration on appeal;
(3) a decision quashing the judgment, resolution or ruling and discontinuing the proceedings;
(4) a decision changing the judgment, resolution or ruling.
...”
62. The relevant extracts from Section 9 of the Act, as worded at the material time, read as follows:
“Detainees have the right to:
defence in accordance with the legislation on criminal procedure;
...”
63. The above provisions were amended on 12 January 2005 and read as follows:
“Detainees have the right to:
defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest or placement in custody, as well as to be informed during the placement in custody of the reasons and causes for that placement in custody, to challenge [the reasons and causes] before the court, to receive in writing an explanation of the provisions of Articles 28, 29, 55, 56, 59, 62, and 63 of the Constitution of Ukraine, of this section and of other rights of detainees established by law, including the right to defend their rights and interests in person or through the assistance of a defence lawyer from the moment of the arrest (placement in custody), the right to refuse to testify before a defence lawyer arrives;
...”
64. The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“14. ... Resolutions of local courts remitting cases for additional investigation and rulings [adopted by] courts of appeal [concerning such resolutions], as well as rulings of courts of appeal quashing judgments of local courts and remitting cases for fresh investigation or trial shall not be reviewed in cassation (according to the procedure envisaged by Articles 383 § 2 and 386 § 2 of the Code of Criminal Procedure), as they do not, as such, hinder further proceedings in cases.”
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VIOLATED_PARAGRAPHS: 5-3
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