ITEMID: 001-57925
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PIERMONT v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of P4-2;Violation of Art. 10;Not necessary to examine Art. 14+10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: John Freeland
TEXT: 8. Mrs Dorothée Piermont, a German citizen living at Remagen, has long been an environmentalist and a pacifist. At the material time she was a member of the European Parliament (MEP).
9. At the invitation of Mr Oscar Temaru, the President of the French Polynesian Liberation Front, the applicant stayed on Polynesian territory from 24 February to 3 March 1986, during the election campaign preceding the territorial assembly and parliamentary elections that were due to take place on 16 March.
10. As soon as she alighted from the aircraft, the airport and border police, acting on the orders of the High Commissioner of the French Republic in French Polynesia, requested her to show some discretion in any comments she made on French internal matters, failing which she risked being expelled.
11. On 28 February 1986 Mrs Piermont took part in a public meeting and on 1 March joined about 900 other people in the traditional march organised by the independence and anti-nuclear movements. This demonstration, which attracted fewer people than in the previous year, took place without incident on the streets of Faaa, a town just outside Papeete, where it had been banned by order of the High Commissioner because of the risk of "serious public disorder".
During the demonstration the applicant denounced the continuation of nuclear testing and the French presence in the Pacific. Her words were reported as follows in the newspapers:
"Mrs Piermont spoke in French and mentioned, in particular, the circumstances in which, on her arrival at Tahiti Airport, she had been warned by the ‘chief copper’ in charge of the airport and border police against taking part in a public demonstration, as doing so during an election campaign would amount to interference.
Mrs Piermont had replied that she would demonstrate if invited to do so, and she told the demonstrators gathered round her on Saturday that when it came to interference, the French presence was an interference in the affairs of the Polynesians, and this interference was, in her view, manifested in the nuclear tests at Mururoa.
Mrs Piermont announced that, being of the view that the whole of the press in French Polynesia was opposed to the trend towards independence and supported the continuation of nuclear testing, the German ‘Greens’ had decided to donate one million CFP francs to the Polynesian Liberation Front to set up ‘a newspaper that will tell the truth’."
12. On the next day, 2 March 1986, the High Commissioner made an order expelling the applicant and prohibiting her from re-entering the territory. The following reasons were given for the order:
"All foreign nationals have a duty to maintain a degree of neutrality towards any French territory in which they are staying.
Despite an oral warning about the duty of discretion, particularly during an election campaign, given to her on her arrival on 24 February 1986, Mrs Piermont stated, during a public demonstration in favour of the territory’s independence and against nuclear testing, that France was interfering in Polynesian affairs.
These statements are an attack on French policy."
13. This order was served on the applicant on 3 March 1986 when she was already on board the aircraft that was to take her to New Caledonia.
14. On 15 April 1986 Mrs Piermont made two applications to the Papeete Administrative Court seeking, firstly, to have execution of the decision stayed and, secondly, to have the decision quashed.
15. The court dismissed the first application on 8 July 1986, but in a judgment of 23 December 1986 it allowed the second application for the following reasons:
"Under the provisions of section 7 of the Act ... of 3 December 1849 ..., the representative of the State may ‘as a public-order measure’ require any alien to leave French territory immediately. While the State’s representative in the territory is vested, not only under these provisions ..., with a wide discretion to enable him to maintain order effectively, he must in all circumstances exercise the power thus conferred on him in a manner that respects freedom of movement and freedom of expression, which are secured not only by European Community law but in the first place by the Constitution and the general principles of law which the Republic applies both to its own nationals and to aliens whose presence and attitude on French territory do not constitute a threat to public order. This entails an obligation to ensure that the proposed public-order measure scrupulously conforms to what is strictly needed in order to maintain or re-establish public order.
Firstly, the applicant’s utterances ... were not in any way seditious and could not in themselves constitute a serious threat to public order. They were accordingly not such as to justify the impugned measure.
Secondly, it furthermore appears from the evidence that the measure was decided on just as the person concerned was about to leave the territory of her own accord. That being so, it could no longer be regarded as essential for maintaining order there.
It follows, without there being any need to rely on international or Community law, that the general principles of domestic law are sufficient to establish that the impugned decision was a misuse of authority and must therefore be quashed."
16. The Minister for Overseas Departments and Territories applied to the Conseil d’Etat on 16 March 1987 to have the Administrative Court’s judgment set aside.
17. On 12 May 1989 the Conseil d’Etat allowed the application on the following grounds:
"It appears from the evidence that during her visit to French Polynesia Mrs Piermont made utterances violently hostile to France’s defence policy and the integrity of French territory in the course of public demonstrations held during the campaign for the elections to the French National Assembly and to the local assembly. ’s actions constituted a threat to public order and in deciding on those grounds to require her to leave the territory, the High Commissioner did not commit a manifest error of assessment. That being so, the Minister for Overseas Departments and Territories rightly submitted that the Papeete Administrative Court, in quashing the order of 2 March 1986, wrongly based its decision on the lack of grounds warranting Mrs Piermont’s expulsion.
...
In the absence of provisions making it applicable to the territory of Polynesia and Dependencies, the Act of 11 July 1979 on the giving of reasons for administrative decisions and the improvement of relations between administrative authorities and the public does not apply there, and no other provision of a statute or of regulations requires reasons to be given for a public-order measure.
Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail.
The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them free movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont.
Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public."
18. After leaving Polynesia on 3 March 1986 (see paragraph 13 above), Mrs Piermont travelled to New Caledonia at the invitation of local elected representatives, including the President of the Socialist Kanak National Liberation Front. On 4 March, at 1.55 p.m., she arrived at Nouméa Airport. After she had gone with the other passengers through immigration control, where the airport and border police stamped her passport, a police officer stopped her and took her into an airport office, where she was held until her departure.
19. Some forty activists known as loyalists had been warned that the applicant was coming and were waiting for her in order to express their hostility to her presence in the territory. They made it known that so long as the MEP was on Caledonian soil they would not leave unless removed by force.
20. Given the risk of confrontation and after unsuccessful attempts at conciliation, the High Commissioner issued an order excluding Mrs Piermont from the territory of New Caledonia. It contained the following reasons:
"Having regard to the expulsion and exclusion order of 2 March 1986 issued by the High Commissioner in French Polynesia in respect of Mrs Piermont ...;
Being of the view that the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder ..."
A police superintendent served this order on her whilst she was still within the airport perimeter, at about 6.30 p.m.
At about midnight the applicant was put on an aircraft bound for Tokyo, her passport having again been duly stamped.
21. On 23 April 1986 Mrs Piermont applied to the Nouméa Administrative Court to have the order excluding her from New Caledonia quashed.
22. In a judgment of 24 December 1986 which upheld the submissions of the Government Commissioner (commissaire du gouvernement), the court quashed the impugned decision on the ground that no reasons had been given for it. It held:
"Under section 1 of the Act of 11 July 1979 on the giving of reasons for administrative decisions, ‘... reasons must be given for decisions which ... restrict the exercise of public freedoms or generally constitute public-order measures’.
Under section 3 of the same Act, ‘the statement of reasons required by this Act must be in writing and set out the considerations of law and fact on which the decision is based’.
Although the impugned order referred to the order of 2 March 1986 issued by the High Commissioner in French Polynesia expelling Mrs Piermont and excluding her from that territory, the High Commissioner in New Caledonia and Dependencies did not state that he was adopting the terms of that order, whose text is neither incorporated in nor appended to his decision. That recital accordingly could not take the place of the statement of reasons required by the Act.
Moreover, by merely stating ‘the presence of Mrs Dorothée Piermont, of German nationality (FRG), on the territory of New Caledonia and Dependencies, in particular during an election campaign, is causing and is likely to cause public disorder’ without specifying the facts on which this public-order measure was based, the High Commissioner in New Caledonia and Dependencies did not satisfy the requirements of section 3 of the aforementioned Act. That being so and without there being any need to consider the other grounds put forward in her application, Mrs Piermont is entitled to have that order quashed."
23. On 16 March 1987 the Minister for Overseas Departments and Territories appealed to the Conseil d’Etat.
24. In a judgment of 12 May 1989 the Conseil d’Etat set aside the judgment of the court below. After noting that the aforementioned Act of 11 July 1979 did not apply to the territory of New Caledonia and Dependencies, it gave the following reasons for its decision:
"Under section 7 of the Act of 3 December 1849 on the naturalisation and residence of aliens in France, which is still in force in the overseas territories and applies in the territory of New Caledonia and Dependencies, ‘the Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier’ ... Regard being had both to Mrs Piermont’s actions during the preceding days and to the unrest caused by the announcement of her arrival in the territory, the High Commissioner, in considering that Mrs Piermont’s presence would constitute a threat to public order and in ordering her exclusion from the territory of New Caledonia on that account, did not commit any manifest error of assessment.
Although Mrs Piermont relies on the provisions of the Treaty of Rome concerning freedom of movement within the territory of the member States, Articles 135 and 227 of the Treaty make implementation of such freedom of movement in the associated countries, which include France’s overseas territories, subject to agreements to be concluded subsequently, which require the member States’ unanimous approval. In the absence of such agreements, this ground of appeal must in any event fail.
The privileges and immunities conferred on members of the European Parliament by Articles 6 to 11 of the Protocol of 8 April 1965 guarantee them freedom of movement for the purpose of travelling to the Parliament and protect them from any prosecution or detention during its sessions but cannot prevent a public-order measure being taken such as the one against Mrs Piermont.
Lastly, the impugned measure did not infringe freedom of expression as laid down in Articles 10 and 14 (art. 10, art. 14) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and came within the ambit of Article 2, paragraph 3, of Protocol No. 4 (P4-2-3) to the Convention, which allows restrictions on freedom of movement that are based on the requirements of national security, public safety or the maintenance of ordre public."
25. On 23 November 1994 the High Commissioner of the Republic, of his motion, revoked the order of 4 March 1986 on the ground that there was no longer "any reason, having regard to present circumstances, to oppose Mrs Piermont’s entering the territory of New Caledonia".
26. France’s overseas territories ("the OTs") are an integral part of the territory of the Republic.
27. However, by virtue of the "specificity of legislation" principle (Articles 74 and 76 of the Constitution), an enactment applies in the OTs only if such application is expressly provided for or if the enactment has been promulgated there.
28. When depositing the instruments of ratification of the Convention and of Protocol No. 4 (P4) on 3 May 1974, France declared that these would apply to "the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (art. 63) of the Convention".
29. The Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945 in force in metropolitan France was not promulgated in the OTs and accordingly does not apply in them.
The applicable provisions are contained in the Aliens (Naturalisation and Residence) Act of 3 December 1849, section 7 of which provides in its first subsection:
"The Minister of the Interior may, as a public-order measure, require any alien travelling or resident in France to leave French territory immediately and have him escorted to the frontier."
This Act was made applicable to the colonies by an Act of 29 May 1874. An Act of 6 September 1984 vests the powers of the Minister of the Interior in the High Commissioner of the Republic in the OTs.
30. At the material time the Conseil d’Etat’s power of review in matters of expulsion or exclusion from French territory was limited to ascertaining whether there had been any manifest error of assessment (see, for example, the National Immigration Office judgment of 22 October 1975, Recueil Lebon 1975, p. 520, and, in relation to an expulsion from New Caledonia, the Julbe-Saez judgment of 6 October 1978, Recueil Lebon 1978, p. 900).
With more particular reference to the political activities of aliens, the Conseil d’Etat held in the Perregaux judgment of 13 May 1977 (Recueil Lebon 1977, p. 216) that political activity did not in itself justify in law the expulsion of an alien whose presence on French territory did not constitute a threat to public order.
31. At the material time Article 227 of the treaty establishing the European Economic Community ("the EEC Treaty") provided:
"1. This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland.
2. With regard to Algeria and the French overseas departments, the general and particular provisions of this Treaty relating to:
- the free movement of goods;
- agriculture, save for Article 40 (4);
- the liberalization of services;
- the rules on competition;
- the protective measures provided for in Articles 108, 109 and 226;
- the institutions,
shall apply as soon as this Treaty enters into force.
The conditions under which the other provisions of this Treaty are to apply shall be determined, within two years of the entry into force of this Treaty, by decisions of the Council, acting unanimously on a proposal from the Commission.
The institutions of the Community will, within the framework of the procedures provided for in this Treaty, in particular Article 226, take care that the economic and social development of these areas is made possible.
3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list."
32. The OTs, including French Polynesia and New Caledonia, are among the territories listed in Annex IV to the EEC Treaty. Their special arrangements for association are laid down in Articles 131 to 136 bis of the treaty.
33. With reference to workers’ freedom of movement, Articles 48 and 135 provide:
"1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest.
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.
..."
"Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the [OTs], and within the [OTs] for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States."
34. The details of and procedure for the association of the overseas countries and territories with the EEC are set out in an implementing convention of 16 December 1980, which was renewed on 30 June 1986. The arrangements are designed to further the economic and social development of the territories concerned but do not include freedom of movement.
35. The Protocol on the privileges and immunities of the European Communities, signed on 8 April 1965, contains a chapter III on members of the European Parliament which provides:
"No administrative or other restriction shall be imposed on the free movement of members of the European Parliament travelling to or from the place of meeting of the European Parliament.
Members of the European Parliament shall, in respect of customs and exchange control, be accorded:
(a) by their own Government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions;
(b) by the Governments of other Member States, the same facilities as those accorded to representatives of foreign Governments on temporary official missions."
"Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties."
"During the sessions of the European Parliament, its members shall enjoy:
(a) in the territory of their own State, the immunities accorded to members of their Parliament;
(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.
Immunity shall likewise apply to members while they are travelling to and from the place of meeting of the European Parliament.
Immunity cannot be claimed when a member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its members."
VIOLATED_ARTICLES: 10


ITEMID: 001-111266
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ESKİ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 4. The applicant was born in 1975 and lives in İzmir.
5. On 29 December 2002 at midnight, the applicant, who was drunk, had a fight with his friend in a taxi. The driver of the taxi stopped in front of a police station and the applicant’s friend entered the station to make a complaint. The applicant followed.
6. According to the applicant, when they entered the police station, his friend complained to the police officers that the applicant had stolen his cell phone. Stepping on the applicant’s foot, a police officer told the applicant to return his friend’s cell phone. The applicant pushed him back. Subsequently, several police officers attacked the applicant. He was blindfolded, handcuffed and beaten with wooden sticks and truncheons for half an hour.
7. At 1.40 a.m. the applicant was taken to the Buca Health Clinic. The doctor who examined the applicant noted the presence of a widespread bruise on his back, bruises on both legs, bruises on his left arm, swelling on the right side of his forehead, and swelling on his right arm and fingers. Suspecting that the applicant’s right hand could be fractured, he ordered the applicant’s transfer to a hospital.
8. According to the report of the Izmir Training Hospital issued at 2.15 a.m., there was swelling on the applicant’s right wrist and sensitivity on his left knee. An x-ray revealed that the applicant’s right arm was broken.
9. The report of the İzmir Forensic Medicine Institute, drafted on 30 December 2002 at 3.47 a.m., which took into account the two medical reports drafted on the same night, stated that the applicant had numerous widespread bruises on his back, a swelling and a bruise on the right side of his forehead, bruises on the back of his legs, a bruised region on his upper left arm and a swelling and a bruise on one of his fingers on the right hand. It was also noted that the applicant’s right arm had been fractured. The report concluded that the injuries rendered the applicant unfit for work for fifteen days.
10. The toxicology report of 30 December 2002 noted that the applicant had 0.98 per mille of alcohol in his blood.
11. On 2 January 2003 the applicant’s lawyer visited him in prison and noted the signs of ill-treatment on his body. On that day, the applicant submitted to his lawyer a detailed account of the alleged ill-treatment.
12. On 24 January 2003 the applicant lodged an official complaint with the İzmir public prosecutor’s office, requesting the prosecution of the police officers who had ill-treated him.
13. On 5 February 2003 the applicant was examined by a doctor at the İzmir Forensic Medicine Institute. The report which was produced took into account the applicant’s previous medical reports and X-rays and noted that his right arm was still bandaged and that his injuries were still visible. It was concluded that the injuries rendered the applicant unfit for work for fifteen days.
14. On 12 March 2003 the İzmir public prosecutor filed an indictment against ten police officers, accusing them of ill-treating the applicant. The applicant joined the proceedings as a civil party.
15. On 29 June 2004 the İzmir Criminal Court, on the basis of witness statements and medical reports, found four police officers guilty of illtreating the applicant under Article 245 of the Criminal Code. Six other police officers on duty that day were acquitted. The court found it established that when the applicant arrived at the police station he was drunk. He started swearing and threatening the officers, threw himself right and left and hit a couple of police officers. In order to stop him, the police officers handcuffed, blindfolded and gagged the applicant. One police officer, M.G.I., hit the applicant with a truncheon. He also told the other police officers to hit the applicant. Three other police officers consequently hit the applicant with truncheons. Based on this finding, the court held that the actions of the four police officers who had beaten the applicant had constituted a breach of Article 245 of the Criminal Code. Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences and accordingly sentenced each of them to a fine. Furthermore, the court decided to suspend the execution of their sentences pursuant to Section 6 of Law no. 647 on the basis that the accused officers did not show any likelihood of reoffending.
16. On 7 March 2007 the Court of Cassation upheld the first-instance court’s judgment as regards the acquittal decisions and quashed the judgment as to the convictions for a reconsideration of the case in the light of the new Code of Criminal Procedure (Law no. 5271) which had entered into force on 1 June 2005.
17. The case was accordingly remitted to the İzmir Criminal Court. On 17 January 2008 the İzmir Criminal Court once again found the four accused police officers guilty of ill-treating the applicant, and sentenced them each to a fine. The court further suspended the execution of their sentence pursuant to Law no. 647, considering that they were unlikely to break the law again. Upon appeal, on 17 September 2008 the Court of Cassation quashed that judgment as well, maintaining that the first-instance court should have considered whether the pronouncement of the judgment could have been suspended for a period of five years pursuant to Article 231 of the Code of Criminal Procedure.
18. On 9 March 2009 the İzmir Criminal Court once again found it established that the accused four police officers had ill-treated the applicant. Accordingly, pursuant to Article 245 of the Criminal Code it initially sentenced them each to three months’ imprisonment. Considering that the swearing and threats of the applicant amounted to provocation within the meaning of Article 51 of the Criminal Code, the court then reduced their sentences to twenty five days’ imprisonment and banned them from public service for twenty five days. The court subsequently suspended the pronouncement of the judgment in accordance with Article 231 of the Code of Criminal Procedure. The applicant’s objection was dismissed on 20 March 2009.
19. A description of the relevant domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004IV (extracts)).
20. The deferral of the execution of a sentence is governed by Section 6 of Law no. 647 on the Execution of Sentences, which in so far as relevant reads:
“The court may decide to defer the execution of a fine and/or a prison sentence of up to one year... if it is convinced, taking into account the offender’s criminal record and potential to commit crime, that there is little risk of any further offence being committed, and provided that the offender has never been sentenced to anything other than a fine. The reasons for deferring the execution of a sentence must be stated in the decision.”
21. The suspension of the pronouncement of the judgment is regulated by Article 231 of the Code of Criminal Procedure (Law no. 5271), the relevant paragraphs of which read as follows:
“...
(5) If the accused, who had been tried for the charges against him, was sentenced to a judicial fine or to imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment does not have any legal consequences for the offender.
(6) Suspension of the pronouncement of the judgment may be decided provided that;
a) the offender has never been found guilty of a wilful offence,
b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed,
c) the damage caused to the victim or to society is repaired by way of restitution or compensation.
...
(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.
...
(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment, of which the pronouncement has been suspended, will be cancelled and the case discontinued.
(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court imposes the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that a certain part of the sentence, up to the half of the total sentence, will not be executed. If the conditions so permit, the court may also suspend the execution of the imprisonment or commute it to other optional measures.
(12) An objection may be filed against the decision to suspend the pronouncement of the judgment.”
VIOLATED_ARTICLES: 3


ITEMID: 001-72692
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BAYRAMOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Sayyad Bayramov, is an Azerbaijani national who was born in 1956 and lives in Baku. He was represented before the Court by Mr N. Abdullayev, a lawyer practising in Baku. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was an executive director of the Qayğı Small Enterprise (hereinafter the “Company”), a commercial legal entity with its headquarters in Baku. According to the Company’s articles of incorporation, its sole founder and owner was the Nizami Qayğı Association. The latter was a non-profit public association aimed at providing social and other public-benefit assistance to the population. The applicant was appointed as the Company’s director pursuant to a decision of the Nizami Qayğı Association, the sole shareholder in the Company.
By an order of 7 December 1994, issued by the Baku City Executive Authority (Bakı şəhəri İcra Hakimiyyəti; hereinafter “BCEA”), the Company was provided with a plot of land for construction of an office building. By 1997, the Company had started the construction work on the site. However, on an unspecified date in 1997, BCEA repealed its order of 7 December 1994 and ordered the demolition of the Company’s building.
The Company filed a lawsuit against BCEA, seeking compensation for damages. The Company was represented by the applicant, in his capacity of the Company’s director, and by N.I., the Company’s deputy director. By a judgment of 11 November 1997, the Economic Court held that, as a result of the building’s demolition by BCEA, the Company sustained financial damages in the amount of 70,061,250 Azerbaijani Manats (AZM). The court ordered BCEA to compensate the Company for these damages.
No appeal was filed against the judgment and it entered into legal force. On 2 December 1997 the Economic Court issued a writ of execution of the judgment. Following BCEA’s failure to pay the compensation, on 18 December 1998 another writ of execution was issued.
However, instead of compensating the Company in accordance with the judgment, it appears that, on 15 December 1999, BCEA provided it with another plot of land for construction of a new building. On this ground, BCEA filed an appeal with the President of the Supreme Court, asking to reopen the case due to the “discovery of new facts” and to reconsider the judgment of 11 November 1997.
By a letter of 31 May 2001, the President of the Supreme Court rejected BCEA’s request. The President explained that the case could be reopened due to the discovery of new facts only if such new facts had existed at the time of examination of the case by the first-instance court, but were unknown to the court at that time. However, since the new plot of land was transferred to the Company in 1999, after the judgment of 11 November 1997 had entered into force, it could not be considered as a basis for reopening of the proceedings. Moreover, the Supreme Court’s President noted that the transfer of the new plot to the Company could not be considered as a substitute for compensation for the Company’s financial damages sustained as a result of the demolition of its first office building in 1997.
Following BCEA’s continuous failure to execute the judgment, on 28 August 2001 the Local Economic Court No. 1 (1 saylı Yerli İqtisad Məhkəməsi) issued a special order, directing the Prosecutor’s Office to bring BCEA’s responsible officials under criminal liability for non-execution of the valid court judgment. On 24 November 2001 the Sabail District Prosecutor’s Office refused to institute criminal proceedings against BCEA officials, holding that there was no documentary evidence showing that the writ of execution had ever been presented directly to BCEA.
On 23 July 2002 the Local Economic Court No. 1 issued a new writ of execution which was sent to BCEA through the Sabail District Bailiffs’ Office (Səbail rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları şöbəsi; hereinafter the “Bailiffs’ Office”).
On 2 May 2003 BCEA notified the Bailiffs’ Office that it was impossible to comply with the judgment of 11 November 1997, because BCEA did not have sufficient funds allocated from the state budget for the purpose of compensating the Company.
On 9 February 2004 the Bailiffs’ Office informed BCEA and the applicant, in his capacity of the Company’s director, that the enforcement proceedings were still pending and insisted that BCEA execute the judgment. On 3 April 2004 BCEA notified the applicant that the issue of the compensation was referred to the Ministry of Finance’s Main Finance Administration of Baku. On 15 April 2004 the Ministry of Finance informed the applicant that the issue was further referred to the Legal Department of the Ministry of Finance.
Upon a petition by the Bailiffs’ Office, on 21 April 2004 the Sabail District Court imposed an administrative fine on BCEA in the amount of AZM 825,000 for failure to comply with the judgment of 11 November 1997.
The applicant, in the meantime, wrote letters to the President, Constitutional Court and BCEA, complaining about the continuing nonexecution. In reply, he was again informed that the matter was under consideration by the Ministry of Finance.
On 16 July 2004 the Bailiffs’ Office informed the applicant that, despite all of the efforts to ensure the enforcement of the judgment in accordance with the law, BCEA consistently failed to comply with the judgment.
Finally, on 12 January 2005 the judgment was executed and BCEA transferred AZM 70,061,250 to the Company’s bank account.
Article 69.2 of the Code of Civil Procedure provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of incorporation of the legal entity, or by representatives acting on the basis of a power of attorney.


ITEMID: 001-104967
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RASKOVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The facts of the cases, as submitted by the parties, may be summarised as follows.
6. The applicants, Ms Zorica Rašković and Ms Dana Milunović, were born in 1961 and 1953 respectively and live in Novi Pazar.
7. Both applicants were employed by Pamučna predionica DOO from Novi Pazar (hereinafter “the debtor”). On 14 January 2001 and 15 May 1996 they were respectively placed on compulsory paid leave until such time when normal production could be resumed and the debtor’s business performance had improved sufficiently.
8. Whilst on this leave, in accordance with the relevant domestic legislation, the applicants were entitled to a significantly reduced monthly income, as well as the payment of their pension, disability and other social security contributions.
9. Since the debtor failed to fulfil these obligations, the applicants brought numerous separate civil claims before the Municipal Court (Opštinski sud) in Novi Pazar (hereinafter “the Municipal Court”).
10. On an unspecified date the debtor’s mother company (see paragraph 62 below) proposed the Redundant Employees Programme (Program rešavanja viška zaposlenih– hereinafter “the redundancy programme”). The redundancy programme set out the criteria for determining redundant employees and, once declared redundant, provided them with two options for benefits: to receive a single redundancy payment from the employer (otpremnina); or to claim monthly unemployment benefits from the social security of the State (novčana naknada). These benefits were provided for all employees, regardless of whether they had any other outstanding claim towards the company.
11. On 7 October 2004 the Municipal Court ruled in favour of the applicant. On 23 December 2004 the Municipal Court supplemented this judgment, and ultimately ordered the debtor to pay to the applicant:
i. the monthly paid leave benefits (minimalna zarada) due from 1 August 2001 to 31 July 2004 (RSD 155,002 in all; EUR 2,400 at the relevant time2), indexed in accordance with the relevant regulations, together with statutory interest;
ii. RSD 7,800 (EUR 100) for her legal costs; and
iii. the pension and disability insurance contributions (“doprinosi za penzijsko i invalidsko osiguranje”) due from 1 January 1997 to 19 July 2004.
12. On 18 July 2005 this judgment became final.
13. On 24 December 2004 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
14. On 24 January 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order, at the same time awarding the applicant the additional amount of RSD 2,400 in respect of enforcement costs (EUR 30).
15. On 29 July 2005 the applicant filed an identical enforcement request, which was accepted on 22 September 2005. She was awarded another RSD 2,800 (EUR 35) in respect of enforcement costs.
16. On 18 August 2005 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 August 2004 to 30 June 2005 (RSD 70,533 in all; EUR 900), indexed in accordance with the relevant regulations, together with statutory interest;
ii. RSD 9,750 (EUR 120) for her legal costs; and
iii. the pension and disability insurance contributions due from 27 July 2004 to 18 August 2005.
17. The judgment of 18 August 2005 became final on 31 January 2006.
18. On 8 February 2006 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
19. On 16 February 2006 the Municipal Court accepted her enforcement request, also awarding her RSD 2,250 (EUR 25) in respect of enforcement costs.
20. On 13 July 2006 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 July 2005 to 31 May 2006 (RSD 82,824,20 in all; EUR 1,000), indexed in accordance with the relevant regulations, together with statutory interest;
ii. RSD 11,700 (EUR 140) for her legal costs; and
iii. the pension and disability insurance contributions due from 18 August 2005 to 31 May 2006.
21. The judgment of 18 August 2005 became final on 10 August 2006.
22. On 25 August 2005 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
23. On 29 August 2006 the Municipal Court accepted her enforcement request, also awarding her RSD 2,700 (EUR 32) in respect of enforcement costs.
24. On 26 March 2007 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 June 2006 to 15 November 2006 (RSD 42,805 in all; EUR 500), indexed in accordance with the relevant regulations, together with statutory interest;
ii. RSD 5,400 (EUR 65) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 June 2006 to 15 November 2006.
25. The judgment of 18 August 2005 became final on 16 April 2007.
26. On 18 May 2007 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
27. On 23 May 2007 the Municipal Court accepted her enforcement request, also awarding her RSD 2,700 (EUR 32) in respect of enforcement costs.
28. On 5 December 2005 the applicant made a statement, in accordance with the redundancy programme (see paragraph 10 above) whereby she opted for the single redundancy payment.
29. On 15 November 2006 the mother company issued a decision terminating the applicant’s employment as of 20 November 2006, and stating that as of that date all rights and obligations arising from her employment were terminated.
30. On 21 November 2006 the mother company paid the applicant RSD 299,700 of redundancy pay, in accordance with the statement of 5 December 2005 and the decision of 15 November 2006.
31. On 9 February 2007, the contributions for pension and disability insurance for the entire period due were paid.
32. On 22 June 2004 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the guaranteed pay (“garantovana zarada”) due from 15 May 1996 to 31 May 2001, and the monthly paid leave benefits due from 1 June 2001 to 31 May 2004, indexed in accordance with the relevant regulations (RSD 150,691 in all; EUR 2,100), together with statutory interest; and
ii. RSD 7,800 (EUR 210) for her legal costs.
33. On 19 July 2004 this judgment became final.
34. On 31 October 2004 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
35. On 31 October 2004 the Municipal Court accepted the applicant’s request and issued an enforcement order, and awarded her RSD 3,600 (EUR 50) in respect of enforcement costs.
36. On 12 January 2005 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 June 2004 to 31 October 2004, indexed in accordance with the relevant regulations (total amount of RSD 29,816; EUR 375), together with statutory interest; and
ii. RSD 9,750 (EUR 120) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 September 2004 to 1 December 2004.
37. On 18 July 2004 this judgment became final.
38. On 22 July 2005 the applicant filed a request for its enforcement, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
39. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order, additionally awarding her RSD 3,600 (EUR 40) in respect of the costs of enforcement.
40. On 27 November 2006 the Municipal Court established that the applicant had withdrawn the part of her enforcement request regarding the payment of contributions for social and pension insurance, and terminated the enforcement of the judgment of 12 January 2005 in this part.
41. On 26 April 2005 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 June 2004 to 31 October 2004 (total of RSD 37,209; EUR 450), together with statutory interest;
ii. RSD 9,750 (EUR 120) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 September 2004 to 1 April 2005.
42. On 20 May 2005 this judgment became final.
43. On 23 June 2005 the applicant filed a request for its enforcement, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
44. On 26 September 2005 the Municipal Court accepted the applicant’s request and issued an enforcement order, additionally awarding her RSD 2,250 (EUR 25) in respect of enforcement costs.
45. On 27 November 2006 the Municipal Court established that the applicant had withdrawn the part of her enforcement request regarding the payment of contributions for social and pension insurance, and terminated the enforcement of the judgment of 26 April 2005 in this part.
46. On 15 March 2006 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 May 2005 to 31 December 2005 (total of RSD 54,464; EUR 625), together with statutory interest;
ii. RSD 11,700 (EUR 150) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 May 2005 to 31 December 2005.
47. On 10 April 2006 this judgment became final.
48. On 19 May 2006 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
49. On 23 May 2006 the Municipal Court accepted the applicant’s request and issued an enforcement order, additionally awarding her RSD 3,600 (EUR 40) in respect of enforcement costs.
50. On 28 August 2006 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due from 1 January 2006 to 30 April 2006 (total of RSD 31,280, EUR 375), together with statutory interest;
ii. RSD 5,400 (EUR 65) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 January 2006 to 1 May 2006.
51. On 20 October 2006 this judgment became final.
52. On 31 October 2006 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
53. On 2 November 2006 the Municipal Court accepted the applicant’s request and issued an enforcement order, additionally awarding her RSD 1,800 (EUR 20) in respect of enforcement costs.
54. On 28 March 2007 the Municipal Court ruled in favour of the applicant and ordered the debtor to pay her:
i. the monthly paid leave benefits due for May and June 2006 (total of RSD 17,639; EUR 220), together with statutory interest;
ii. RSD 11,700 (EUR 150) for her legal costs; and
iii. the pension and disability insurance contributions due from 1 May 2006 to 4 July 2006.
55. On 4 June 2007 this judgment became final.
56. On 12 June 2007 the applicant filed a request for its enforcement, in relation to the payment of paid leave benefits and costs, proposing that it be carried out either by means of a bank transfer or through auctioning the debtor’s specified movable and/or immovable assets.
57. On 15 June 2007 the Municipal Court accepted the applicant’s request and issued an enforcement order, additionally awarding her RSD 1,800 (EUR 20) in respect of the costs of enforcement.
58. On 9 December 2005 the applicant made a statement, in accordance with the redundancy programme (see paragraph 10 above) with which she opted for the single redundancy payment.
59. On 3 July 2007 the mother company issued a decision terminating the applicant’s employment as of 4 July 2007, and as of that date all rights and obligations arising from her employment were terminated.
60. On 4 July 2007 the mother company paid the applicant RSD 299,700 of redundancy pay, in accordance with the statement of 9 December 2005 and the decision of 3 July 2007.
61. On 9 February 2007 the contributions for pension and disability insurance for the entire period due were paid.
62. The debtor is a limited liability company owned by the “Raška Hoding Kompanija” (“the mother company”). As of April 2010, the debtor still consisted of predominantly socially-owned and State-owned capital.
63. On 5 November 2004 the mother company was ordered to undergo restructuring, which is still ongoing. Regardless of the formal status “under restructuring”, none of the applicants’ enforcement proceedings was ever formally suspended or terminated on these grounds.
64. The relevant domestic law is set out in the Court’s judgments of R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008, §§ 57-82); Vlahović v. Serbia (no. 42619/04, §§37-47, 16 December 2008); Crnišanin and Others v. Serbia (nos. 35835/05, 43548/05, 43569/05 and 36986/06, 13 January 2009, §§100-104); and EVT Company v. Serbia (no. 3102/05, §§ 26 and 27, 21 June 2007).
65. In its decisions of 29 November 2009 and 4 December 2009, the Constitutional Court of Serbia (cases no. Už-95/2008 and Už-143/2007) examined the complaints of persons who had previously been employed with one of the companies within the “Raška” holding company, and whose employment had been terminated in accordance with the redundancy programme. The appellants had requested the Municipal Court to order the company to pay them monthly paid leave benefits. The Municipal Court and District Court in Novi Pazar had rejected their respective claims because, inter alia, they had already claimed their entitlement under the redundancy programme. The Constitutional Court found that the employees were entitled to enjoy the rights arising from both the redundancy programme and the outstanding claims from their employment, prior to its termination. Thus, the bare fact that the appellants in those cases had agreed to enjoy benefits from the redundancy programme could not be interpreted to mean that they had waived the right to the monthly paid leave benefits previously due, and the courts had to examine whether those benefits had indeed been paid or not.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82995
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOVORUSHKO v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-5;Remainder inadmissible
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1954 and lives in the Moscow Region.
6. On 7 August 2000 a criminal case was opened into smuggling of consumer goods.
7. On 17 January 2005 the applicant was arrested on suspicion of participation in a criminal enterprise, smuggling, customs duty evasion and fraud.
8. From April to November 2005 the applicant was granted access to the materials in the case file.
9. On 29 November 2005 the case was referred for trial before the Avtozavodskiy District Court of Nizhniy Novgorod. According to the Government, the case materials comprised 113 binders; charges had been brought against five individuals who had acted in conspiracy; the witnesses' list included seventy-six prosecution witnesses from several cities in Russia, Belarus, Ukraine, China and Italy, as well as twenty-five witnesses and experts for the defence.
10. On 16 December 2005 the Avtozavodskiy District Court held the preliminary hearing and fixed the opening trial date for 28 December 2005.
11. On 23 March 2006 the Avtozavodskiy District Court ordered that the case be returned to the Prosecutor General's Office for correcting defects in the indictment against the applicant. That decision was set aside by the Nizhniy Novgorod Regional Court on 2 May 2006, which referred the case back to the District Court.
12. On 29 May 2006 the trial resumed but it was subsequently stayed from 23 June to 24 July 2006.
13. On 31 January 2007 the applicant was released on bail.
14. According to the information provided by the parties and the elements available in the case-file to date, the criminal proceedings are still pending before the trial court.
15. On 19 January 2005 the Lefortovskiy District Court of Moscow remanded the applicant in custody on the ground that he was charged with serious and particularly serious offences and could abscond or interfere with the investigation, without citing specific reasons for these findings. On 7 February 2005 the Moscow City Court upheld the decision on appeal.
16. On 15 March, 12 May, 12 July and 13 October 2005 the Lefortovskiy District Court extended the applicant's detention. Each time it referred, using a summary formula, to the gravity of the charge against the applicant and to “grounds to believe that he would abscond or interfere with the criminal proceedings”. On 19 April, 7 June, 22 August and 9 November 2005 the Moscow City Court upheld the extension orders on appeal.
17. In the decisions of 19 April and 7 June 2005 the City Court found as follows (the same paragraph featured in both decisions):
“[The applicant] is charged with crimes, including particularly serious crimes, punishable with more than two years' imprisonment. The factual circumstances of the offence imputed to [the applicant] call for the assumption that, once released, he would flee from the investigation and trial, re-offend or otherwise interfere with the criminal proceedings. In these circumstances, the [first-instance] court's finding that any other, non-custodial preventive measure may not be applied to [the applicant], appears justified.”
18. The City Court's decision of 9 November 2005 also contained the following passage:
“The argument by the defence that the [first-instance] court did not take into account absence of any objective evidence of [the applicant's] involvement in the commission of the imputed offence, is without substance because, in extending the applicant's detention, the [first-instance] court did not make any findings as to the guilt of the accused or as to correctness of characterisation of the facts in law.”
19. On 29 November 2005 the applicant was moved to remand centre no. IZ-52/1 in Nizhniy Novgorod.
20. On 16 December 2005 the Avtozavodskiy District Court extended the applicant's detention, referring to the gravity of the charges and the risk that he would interfere with the course of the trial because two other defendants had gone into hiding.
21. On 1 June 2006 the Avtozavodskiy District Court, by one decision, ordered to extend the applicant's and his co-defendant's detention until 2 September 2006, holding as follows:
“In deciding on extending the period of detention, the court takes into account that the measure of restraint in respect of [the applicant and his co-defendant] was imposed in accordance with Articles 97-101 and 108 of the Code of Criminal Procedure as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings. The grounds justifying the application of the measure of restraint still persist to date. Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences”.
22. Counsel for the applicant filed an appeal. He submitted, in particular, that the first-instance court had failed to take into account the facts mitigating for the applicant's release, such as the absence of a prior criminal record, positive references, a permanent place of residence, stable family connections with his wife, children and grandchildren, chronic ailments, and the long period of detention which had already exceeded fifteen months.
23. On 26 June 2006 the Nizhniy Novgorod Regional Court upheld on appeal the extension order of 1 June 2006, noting that the initial grounds justifying the holding of the applicant and his co-defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure.
24. On 21 August and 16 November 2006 the Avtozavodskiy District Court granted further extensions of the applicant's and his co-defendant's detention, invoking two grounds: that they were charged with particularly serious offences punishable with up to twelve years' imprisonment, and that the applicant had been initially arrested because the investigation had received information about his intention to abscond.
25. In the decision of 21 August 2006 the District Court found that:
“...if the preventive measure is replaced with a more lenient one, there exists a risk that the defendants would not appear at trial; thus, only the custodial measure may... ensure the protection of the interests of the State and society against crime and the possibility of a fair trial.”
26. The decision of 16 November 2006 employed a somewhat different wording which read as follows:
“Another, more lenient preventive measure, such as bail, would not be able to ensure a fair trial in this particular case. For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty.”
27. On 11 September and 15 December 2006 the Nizhniy Novgorod Regional Court upheld, in a summary fashion, the above decisions.
28. On 30 January 2007 the Avtozavodskiy District Court granted the applicant's and his co-defendant's application for release on bail. It found that, although the risk of absconding still existed, with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty. The bail was set at 1,500,000 Russian roubles (approximately 44,000 euros). On the following day the applicant was released.
29. Since 1 July 2002 detention matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001).
30. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).
31. When deciding on a preventive measure, the court is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or interfere with the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 99).
32. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
33. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to six months. Further extensions for up to twelve or eighteen months may be authorised only if the accused is charged with serious or particularly serious criminal offences (Article 109 §§ 1-3).
34. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “during the trial”. The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
35. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code).
36. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
5-5