ITEMID: 001-57958
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF GRADINGER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Preliminary objection rejected (reservation);Preliminary objection rejected (ratione temporis);Violation of P7-4;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. Mr Gradinger is an Austrian citizen who lives at St Pölten (Lower Austria).
7. On 1 January 1987 at about 4 a.m., while driving his car, he caused an accident which led to the death of a cyclist.
At the hospital where he was taken for treatment a specimen of his blood was taken. This showed that he then had a blood alcohol level of 0.8 grams per litre.
8. On 15 May 1987 the St Pölten Regional Court (Landesgericht) convicted him of causing death by negligence (fahrlässige Tötung) and sentenced him to 200 day-fines of 160 Austrian schillings (ATS) with 100 days' imprisonment in default of payment (Article 80 of the Criminal Code (Strafgesetzbuch) - see paragraph 13 below).
According to the applicant, an expert, Dr Psick, had stated at his trial that in view of the shortness of the interval between the last drink the applicant had had and the collision, he could not have absorbed an amount of alcohol exceeding the prescribed limit.
In the judgment, as set out in the court record (Protokolls- und Urteilsvermerk), it was held that the applicant had indeed been drinking before the accident but not to such an extent as to be caught by Article 81 para. 2 of the Criminal Code, which prescribed a heavier penalty for causing death by negligence while under the influence of drink (see paragraph 14 below).
9. On 16 July 1987 the St Pölten district authority (Bezirkshauptmannschaft) issued a "sentence order" (Straferkenntnis) imposing on Mr Gradinger a fine of ATS 12,000, with two weeks' imprisonment in default, for driving under the influence of drink. It made this order pursuant to sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 (Straßenverkehrsordnung - see paragraphs 15 and 16 below) and on the basis of a different medical report, of 5 February 1987, according to which, in view of the time that had elapsed between the collision and the taking of the blood specimen, Mr Gradinger's blood alcohol level when the accident had occurred must have been at least 0.95 grams per litre.
10. The applicant appealed to the Lower Austria regional government (Amt der Landesregierung), which dismissed his appeal on 27 July 1988 on the basis of a further expert opinion, of 16 June 1988, to the effect that the blood alcohol level had been 0.9 grams per litre.
11. On 11 October 1988 the Constitutional Court (Verfassungsgerichtshof) declined to accept for adjudication an appeal by the applicant, on the ground that it did not have sufficient prospects of success.
12. A further appeal, to the Administrative Court, was dismissed as ill-founded on 29 March 1989. It was held that the regional authorities had not in any way misconstrued the law in finding that at the material time Mr Gradinger had been under the influence of drink for the purposes of section 5(1) of the Road Traffic Act. That finding had been based on an expert opinion of 16 June 1988 in which it had been assumed that all the alcohol consumed by the applicant had passed into his bloodstream by the time of the accident, a point which Mr Gradinger had not contested. He was therefore wrong in asserting that the expert report had not analysed the effects of the last drink he had had before the accident.
Furthermore, the authorities had acted in accordance with the law in appointing an official expert (Amtssachverständiger) rather than a sworn court expert (gerichtlich beeideter Sachverständiger) to report on Mr Gradinger's blood alcohol level. In the case under consideration there had been no special factor to justify their doing otherwise. Nor, contrary to the applicant's assertions, had they appointed as expert the person already called upon at first instance by the district authority (see paragraph 9 above).
As for Article 14 para. 7 of the International Covenant on Civil and Political Rights, embodying the "non bis in idem" principle, this was not directly applicable in the Austrian legal system. Accordingly, the authorities had not misconstrued the law by punishing the applicant after a criminal court had acquitted him (see paragraph 8 above).
13. By Article 80 of the Criminal Code (Strafgesetzbuch):
"It shall be an offence, punishable with up to one year's imprisonment, for any person to cause the death of another by negligence."
14. Article 81 para. 2 of the Criminal Code provides:
"It shall be an offence, punishable with up to three years' imprisonment, for any person to cause the death of another by negligence
1. ...
2. after allowing himself, even if only negligently, to become intoxicated ... through the consumption of alcohol, but not to an extent which excludes his responsibility, notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state."
Under an irrebuttable presumption applied by the criminal courts, a driver with a blood alcohol level of 0.8 grams per litre or higher is deemed to be "intoxicated" for the purposes of Article 81 para. 2 of the Criminal Code (Foregger/Serini, Kurzkommentar zum Strafgesetzbuch, 4th edition, 1988, p. 217).
15. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests.
16. Since 1 May 1986 section 99(1)(a) of the Act has provided:
"It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person:
(a) to drive ... a vehicle when under the influence of drink ..."
17. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 28 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic."
18. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
19. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
20. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
21. Section 35(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides:
"Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality."
22. Section 39(1) provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
23. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
24. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
25. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
26. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
27. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
28. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
29. The instrument of ratification of Protocol No. 7 (P7) deposited by the Austrian Government on 14 May 1986 contains, inter alia, the following declaration:
"Articles 3 and 4 (P7-3, P7-4) exclusively relate to criminal proceedings in the sense of the Austrian Code of Criminal Procedure."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86552
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SOLOMATINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1937 and lives in Dnipropetrovsk.
5. On 26 February 1988 the applicant sustained grievous bodily injuries as a result of a traffic accident. On 3 March 1989 the Pavlograd Court (Павлоградський районний суд Дніпропетровської області) found Mr K. responsible for the accident and sentenced him to three years’ imprisonment. The sentence was conditionally suspended. By the same judgment, the court left the applicant’s claim for compensation without consideration on the ground that the defendant had paid her the claimed amount of his own accord.
6. On 9 March 1992 the applicant instituted civil proceedings in the Pershotravensk Court (Першотравенський районний суд Дніпропетровської області) against Mr K., seeking compensation for the damage caused to her health as a result of the accident. Subsequently the applicant modified the amount of her claim for compensation on several occasions. In the course of the proceedings five expert assessments were ordered by the courts to assess the damage sustained by the applicant.
7. The Pershotravensk Court considered the case on three occasions and delivered judgments on 8 September 1992, 11 July 1994 and 26 February 1999, which were overturned by the decisions of the Dnipropetrovsk Regional Court (Дніпропетровський обласний суд) of 19 May 1993, 26 September 1994 and 17 May 1999, respectively.
8. In its decision of 17 May 1999 the Regional Court decided to transfer the case to the Pavlograd Court for a fresh examination.
9. On 4 February 2000 the Pavlograd Court found in part for the applicant and awarded her a lump sum of 4,129.50 Ukrainian hryvnias (UAH) and a monthly allowance of UAH 55.06 for an unlimited period of time in compensation for loss of earnings. The court also awarded her UAH 24 in compensation for travel expenses and rejected the applicant’s claim for compensation for medical expenses.
10. On 17 April 2000 the latter judgment was quashed by the decision of the Regional Court. It held that the first-instance court had made wrong calculations and had failed to establish whether the applicant’s injuries could have resulted in any recognised degree of disability. It decided to remit the case to the Industrialny District Court of Dnipropetrovsk (Індустріальний районний суд м. Дніпропетровська) for a fresh examination.
11. On 21 December 2000 the latter court found in part for the applicant and ordered Mr K. to pay her a lump sum of UAH 2,946.83 and a monthly allowance of UAH 61.32 for an unlimited period of time in compensation for loss of earnings. The court also awarded the applicant UAH 744 in compensation for medical and travel expenses.
12. On 5 February 2001 the Regional Court, following the defendant’s appeal in cassation, quashed the judgment of 21 December 2000 and remitted the case for a fresh consideration to the same court. The regional court held that the first-instance court had failed to take into account the conclusions contained in its decision of 17 April 2000.
13. On 28 December 2004 the Industrialny Court awarded the applicant a lump sum of UAH 7,502.32 and a monthly allowance of UAH 161.60 in compensation for the damage to her health and loss of earnings; UAH 5,000 for non-pecuniary damage; and UAH 1,653.64 in compensation for medical, travel, and legal costs and expenses.
14. On 28 January 2005 Mr K. appealed against the judgment of 28 December 2004.
15. By separate decisions of 30 March and 13 July 2005, the same court awarded the applicant additionally UAH 306.
16. On 8 June 2006 the Regional Court quashed the decisions of 28 December 2004, 30 March and 13 July 2005 and adopted a new judgment on the merits of the case. The court awarded the applicant a lump sum of UAH 14,398.35 and a monthly allowance of UAH 178.12. The court further rejected the applicant’s claims for non-pecuniary damage and costs and expenses.
17. The parties did not appeal in cassation.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-72315
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BELLO v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Aminatu Bello, is a Nigerian national who was born in 1984. She was represented before the Court by Ms Ylva Orrenius, a lawyer practising in Linköping. The respondent Government were represented by Ms Anita Linder, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden on 20 July 2003 and applied for asylum.
At an initial interview conducted by the Migration Board (Migrationsverket) on 21 July 2003, the applicant stated, inter alia, that she had been born in Oyo State, in the south-west of Nigeria, and had gone to school and always lived in Ibadan in that state. She belonged to the ethnic group Lafia and was a Muslim. She submitted a certificate of registration of birth dated 18 March 2000 and a copy of an article published in the newspaper the Nigerian Observer on 7 May 2003. The article, entitled “A Pregnant Teenager Muslim Girl Elopes To Europe?”, stated the following:
“A young 19 year old, Aminatu Bello of Nassarawa State in the Northern part of Nigeria is reported to be on the run, having fled from one 60 year old, Tijani Yesufu whom she was engaged to. Feeling that she did not like the man she was betrothed to, young Aminatu Bello is alleged to have become pregnant by her younger lover, a discovery that she has not found to be comfortable with in her Muslim Community.
By the Sharia laws, being pregnant by another man while being engaged is regarded as adulterous and the penalty would mean condemnation to death. The matter has been reported to the head of her village in Katsina-Ala and the Muslim clerics have declared Aminatu Bello wanted. A search to the hometown of her lover in Oyo State, in the Western part of the country has proved abortive so far since the event came to light some three months ago.
Fears are expressed that Miss Aminatu Bello may have eloped outside the country with her lover but that cannot be confirmed as at the time of filing this report.”
Below the article was a picture allegedly depicting the applicant.
At the interview, the applicant stated that she had last been in contact with her boyfriend “...when [she] had this problem, in February this year. In March and April [she] was still in contact with him, but now [she] no longer had any contact with him. ... [She] saw him last in May”. She further stated that she had not wanted to get married to the 60-year-old man suggested by her father, and she had told her father that she already had a boyfriend. She was however married against her will. After a while she discovered that she was pregnant. She told her father who got very angry. Later, her father showed her the newspaper article and told her that she had to escape to save her life. Her boyfriend had contacted and paid a business woman who had helped her to leave Nigeria.
A second interview was held with the applicant on 2 September 2003. The applicant then stated that she lived in Ala-Ladfin in Nassarawa State, in central Nigeria. She had been married for four months. When her husband had learned about her pregnancy he had beaten her severely, after which she had left to stay with her aunt. She was at her aunt’s for about two weeks until her aunt arranged for her journey to Sweden. She had seen in the newspaper that she was wanted by the village chief and that she was to be stoned to death. She did not know exactly how long she had been pregnant but she believed that it had been about eleven weeks.
On 8 October 2003 the Migration Board rejected the applicant’s application for asylum. It remarked that, according to the newspaper article submitted by the applicant, the incidents had taken place in March 2003, whereas the applicant had stated that she got married in March 2003 and that the incidents leading to her leaving the country had occurred four months after the marriage. The Board found that, irrespective of the truthfulness of her story, the applicant had not made a sufficiently probable case that she would not receive any protection or help from the Nigerian authorities. Protection from criminal actions and assault was a matter for the domestic authorities, and it appeared that the applicant had not reported the incidents to the police. The Board concluded that the applicant had not been able to show that, upon return to Nigeria, she would be treated in a manner which would entitle her to refugee status or protection. It further concluded that, having regard to the very restrictive practice concerning the grant of a residence permit on humanitarian grounds, the facts in the instant case were not sufficient to warrant such a permit.
On 4 February 2004 the applicant gave birth to a son.
The applicant appealed to the Aliens Appeals Board (Utlännings-nämnden). The Migration Board also referred to the Appeals Board the applicant’s request for a residence permit concerning her son.
In the appeal, the applicant’s representative stated that the applicant had been beaten by her husband when he found out about her infidelity and, on 9 April 2003, she had escaped to her aunt’s home. According to the representative, the applicant had been sentenced to death by the council in her husband’s village. In a subsequent letter to the Appeals Board, the representative stated, in relation to the comments of the Migration Board regarding the dates mentioned in the article and those given by the applicant herself, that the applicant was a very young, inexperienced girl who had a great respect for authority and had not been fully aware of the length of a pregnancy. However, she was certain that she had been married in March 2003 and had become pregnant in April 2003.
On 30 August 2004 the Aliens Appeals Board rejected the applicant’s appeal and the application concerning her son. It concluded that the applicant’s identity was unclear and that the time frames given by her were not compatible with the information in the Nigerian newspaper article. The time indicated for the “event” in the article was also inaccurate in relation to the time of birth of her baby. Due to the above, and considering the applicant’s case as a whole, the Appeals Board found that she had not shown that she was to be regarded as a refugee or as a person otherwise in need of protection. Nor did it find any humanitarian grounds to warrant a residence permit.


ITEMID: 001-61169
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HULKİ GÜNEŞ v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 6-3-d;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: 9. The applicant, a Turkish citizen born in 1964, is currently serving a life sentence in Diyarbakır Prison.
10. On 19 June 1992 the applicant was arrested by the security forces in the village of Çayçatı, in the district of Varto (province of Muş). A handwritten and partly illegible report drawn up on the same day includes the following passage:
“Following an investigation, Mr Güneş, [suspected of having] taken part in an armed clash with gendarmes in the district of Varto on 14 June 1992, ... was arrested, unarmed, while hiding in the house of one N.Ö., in the course of a gendarmerie operation on 19 June 1992.”
11. On the same day, the gendarmes who had arrested the applicant drew up a further report in which they identified him as one of the terrorists who had taken part in an armed attack on 14 June 1992 in which one soldier had died and two others had been injured.
...
13. According to a report drawn up on 29 June 1992, a confrontation was held between the applicant and the gendarmes who had taken part in the armed clash of 14 June 1992. Three of them identified the applicant. The report was not signed by him.
14. On an unspecified date the applicant was transferred to the Muş provincial gendarmerie headquarters for questioning. However, the circumstances in which he was questioned cannot be established from the evidence adduced by the parties.
...
18. On the same day the applicant was brought before the Police Court, composed of a single judge, who ordered his detention pending trial. Before the judge, the applicant denied all the accusations against him. He stated that he had not taken part in any armed attack. He also denied that a confrontation had been held on 29 June 1992 (see paragraph 13 above) and asserted that on the day of his arrest he had been shown to a soldier, who had been unable to identify him. Lastly, he stated that he had been ill-treated while being detained at the Muş provincial gendarmerie headquarters.
...
42. In an indictment preferred on 20 July 1992 the public prosecutor at the Diyarbakır National Security Court instituted proceedings against the applicant, charging him with separatism and with undermining the integrity of the State, capital offences under Article 125 of the Criminal Code. He accused him of having taken part in two armed attacks on 12 October 1991 and 14 June 1992 and, in particular, of having fired, together with other terrorists, at the security forces, causing the death of one soldier and injuring two others.
43. In connection with the criminal proceedings against the applicant, a Mr Erdal was also accused of having taken part in the armed attack of 14 June 1992. He was therefore tried in the same proceedings.
44. At a hearing on 28 August 1992 the National Security Court read out statements by the gendarmes (Z.K., Z.Ko. and T.E.) who had identified the applicant during the investigation (see paragraph 11 above). The applicant disputed the statements and denied all the charges. The court decided to summon the three gendarmes as witnesses.
45. At a hearing on 2 October 1992 counsel for the applicant contested the record of the confrontation of 19 June 1992 (see paragraph 13 above) and argued that the statements by the gendarmes alleged to have identified his client were contradictory.
46. At a hearing on 30 October 1992 the court, as requested by the public prosecutor, decided, on “road-safety grounds”, to have evidence from the three gendarmes taken on commission. Accordingly, two photographs of the applicant, one from the side and the other from the front, were sent together with the reports concerning the case to the court delegated to examine the witnesses. The applicant challenged the court's decision and asked it to hold a confrontation itself.
47. At a hearing on 15 January 1993 Mr Erdal, the applicant's co-defendant, gave evidence, as requested by counsel for the applicant. He stated that he had never seen the applicant. He also maintained that the applicant had not been present during the armed attack on 14 June 1992, in which he himself had taken part.
48. At a hearing on 12 February 1993 counsel for the applicant again criticised the method by which the court had decided to take evidence from the witnesses in question, arguing that it could not be considered compatible with the rules of procedure.
49. At a hearing on 19 March 1993 it was noted that the depositions of the witnesses who had been examined on commission, with the exception of that of Z.K., had been added to the case file.
50. At a hearing on 18 June 1993 the applicant pleaded not guilty. He again challenged the manner in which the depositions of the witnesses in question had been taken and argued that they could not be admitted in evidence against him, since he had been identified from photographs and hence without a confrontation. He also rejected the statements he had given under duress at the investigation stage.
51. At a hearing on 3 September 1993 it was noted that the deposition of Z.K., likewise taken on commission, had been added to the case file. Counsel for the applicant contested it, arguing that, like the other depositions, it could not be admitted as evidence for the prosecution.
At the same hearing the public prosecutor made submissions in which he sought the applicant's acquittal. He stated, in particular:
“Criminal proceedings were instituted against the defendant Hulki Güneş, who was suspected of having taken part in an armed clash with soldiers on 14 June 1992... The witnesses Z.K. and Z.Ko. stated that they had seen the defendant with his face uncovered during the clash, whereas the other members of the organisation had their faces covered. [However, firstly,] it was not mentioned in the incident report of 14 June 1992 that a member of the organisation had been observed with his face uncovered. [Secondly,] in the statements they gave after the incident, the soldiers did not say that they had seen one of the members of the organisation with his face uncovered. [In addition,] Mr Güneş was not arrested during the incident in question [and] Mr Erdal, the co-defendant, a 'confessor' [former member of an illegal organisation turned informer] who admitted having taken part in the shooting, stated that Mr Güneş had not been present at the time and that he did not know him. [Lastly,] there are also contradictions, indeed a blatant discrepancy, regarding the names of those who took part in the shooting, between Mr Güneş's statements [obtained while he was in police custody] and those of his co-defendant. [Accordingly], it should be concluded that there is insufficient evidence for Mr Güneş to be found guilty...”
52. At hearings on 1 October and 5 and 26 November 1993 the public prosecutor reiterated his submissions of 3 September and sought the release of the applicant, but his recommendations were not followed.
53. At a hearing on 24 December 1993 statements by the applicant's brother, who had been arrested for being a member of the PKK, and by his sister were added to the case file. Both attested that the applicant was a member of the organisation in question. The applicant was given additional time to file his observations on this new evidence against him.
54. At a hearing on 30 December 1993 the public prosecutor made further submissions in which he sought the applicant's conviction under Article 125 of the Criminal Code.
55. At a hearing on 11 March 1994 the applicant submitted his defence. Referring to the pleadings he had lodged during the trial and to the public prosecutor's initial submissions, he asked to be acquitted.
56. In a judgment of 11 March 1994 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty as charged and sentenced him to death, commuted to life imprisonment, under Article 125 of the Criminal Code. In support of its decision, the court took into account the depositions of the gendarmes concerned, the statement which the applicant had given to the security forces and the reports in the investigation file. It held, inter alia:
“With regard to the defendant Hulki Güneş:
In the record of his statement, the defendant asserted that in 1989, while staying illegally in France, he had begun to support the organisation's ideas. On returning to Turkey, he had contacted the organisation. He stated that, on its behalf, he had
(i) set up a committee, collected funds and disseminated propaganda;
(ii) taken part on 12 October 1991 in an armed attack in the district of Varto; and
(iii) taken part on 14 June 1992 in an ambush against a patrol from the security forces, in which a member of the patrol had been killed and two others injured.
He stated that after that incident he had gone to hide in the village of Çayçatı, where he was arrested by the security forces. He also stated that his code name as a member of the organisation had been Ceymiş.
Before the public prosecutor and the Police Court he denied all the offences of which he was accused. He stated that he had gone to the village of Çayçatı to do building work in N.Ö's house. He maintained that he had hidden under the bed when the soldiers had arrived purely because he did not have any identity papers. He denied all the charges against him.
In his defence submissions before the court he again denied the charges.
In his submissions the public prosecutor sought the defendant's conviction under Article 125 of the Criminal Code.
It appears from the reports and documents in the file that on 14 June 1992, at about 12.30 p.m., members of the security forces attached to the Omcali gendarmerie command were attacked by a group of armed terrorists while on patrol in the province of Muş, in the district of Varto, near Omcali, on Sarimsa Hill. In the course of the shooting, the gendarme M. Aslan was killed and the gendarmes Ş. Demircan and H. Akkurtlu were injured. After additional security forces had arrived as reinforcements, the clash went on until 8 p.m. Statements by the gendarmes T.E., Z.K. and Z.Ko., who were involved in the skirmish, were added to the case file.
The members of the security forces present at the scene after the shooting were informed that there was a terrorist hiding in N.Ö.'s house in the village of Çayçatı, which is part of the district of Varto. After taking the necessary security measures, the security forces went to the house and rang the doorbell. About 15 to 20 minutes later, after several rings, someone opened the door. With the owner's agreement, they were able to go in. Inside, they asked N.Ö. if a Hulki Güneş was staying with him. N.Ö. replied 'no'. All the family were together in the same room. They were asked if anyone else was in the house. They replied 'no'. However, the soldiers discovered a person in pyjamas hiding under a bed. When the person was shown to the members of the household, they said that they did not know him or what he was doing there. It was established that the person was Hulki Güneş and that he was related to the members of the household. On his arrest, T.E., Z.K. and Z.Ko., members of the security forces who had been present at the shooting on 14 June 1992, immediately recognised him as having been involved in the shooting. That much is apparent from the relevant report.
A confrontation was held between these members of the security forces and the defendant. All three members of the security forces recognised the defendant as having taken part in the shooting.
The court sent a photograph of the defendant for identification by the gendarmes claiming to recognise him.
In the deposition taken from him on commission, the witness Z.K. said that he could not be certain whether the person in the photograph had been among those taking part in the shooting, as the terrorists who had attacked them had had their faces covered. However, he stated that the defendant had been one of the terrorists who had organised the ambush and that his face had not been covered. During the shooting there had been a distance of only 15-20 metres between them, so he had had a clear view of the person's face. He accordingly maintained that the person in the photograph was the same person he had seen during the shooting. He added that he had recognised him as soon as he had arrested him. He attested that the arrest report was consistent with his statements and that the defendant was the person who had taken part in the shooting.
The statement by T.E. was also taken on commission. He stated that the person in the photograph was the same person he had seen at the scene of the shooting and that the reports read out to him were consistent with what had happened.
The witness Z.Ko., who also gave evidence on commission, confirmed the content of the reports. He stated that on 14 June 1992 there had been an outbreak of shooting with an armed terrorist group. He added that the shooting had carried on for a long time, with the result that at nightfall he and his colleagues had hidden in the bushes to escape the terrorists' shots. As the terrorists had left the scene, he had had a clear view of one of them 15-20 metres away. He added that shortly after the defendant's arrest, he had been able to identify him as the person he had seen. He maintained that that person was the one in the photograph.
It is apparent from the arrest report that the defendant was immediately identified by the witnesses. They identified him without hesitation on being shown his photograph. Furthermore, the defendant's sister stated that he was a member of the PKK terrorist organisation. It follows from these witness statements and declarations that the confessions made by the defendant in the statement he gave reflect the truth.
The arrest report appears consistent with the evidence given by the defendant in his statement as to the circumstances of his arrest. That factual element tends to corroborate the confessions made by the defendant in his initial statement.
Although the indictment states that the defendant took part in the shooting on 12 October 1991 in the capital of the district of Varto, his confessions on the subject are not corroborated by any documents in the file or any other related item of evidence. It has therefore not been established that the defendant took part in that operation.
...
On 20 July 1992 the public prosecutor at the National Security Court instituted proceedings against the defendant. He accused him of having begun to support the organisation's ideas in 1989, while staying illegally in France, and, on returning to Turkey, having participated in the organisation's activities, then taken part in an armed attack in the capital of the district of Varto on 12 October 1991 and, lastly, having taken part in an ambush against a patrol from the security forces on 14 June 1992, in which a member of the patrol had been killed and two others injured...”
Having regard to the foregoing and to the fact that the public prosecutor had sought the application of Article 125 of the Criminal Code, the National Security Court found it established that the defendant, a member of the PKK, had taken part in the shooting on 14 June 1992 but not in the shooting on 12 October 1991. Holding that the armed attack of 14 June 1992 had occurred in the context of the PKK's terrorist activities aimed at removing part of the national territory from the State's control, the court held that the defendant should be convicted under Article 125 of the Criminal Code.
57. On 11 March 1994 the applicant appealed against that judgment to the Court of Cassation and requested a hearing.
58. Following a hearing on 10 November 1994 the Court of Cassation upheld the judgment appealed against. Its judgment was delivered on 16 November 1994 with neither the applicant nor his counsel present.
On 8 December 1994 the full text of the Court of Cassation's judgment was added to the case file kept at the registry of the National Security Court and thus made available to the parties.
59. Article 125 of the Criminal Code provided:
“It shall be an offence punishable by death to commit any act aimed at subjecting the State or part of the State to domination by a foreign State, diminishing the State's independence, breaking its unity or removing part of the national territory from the State's control.”
60. Section 20(7) of the National Security Courts (Establishment and Rules of Procedure) Act (Law no. 2845) provides:
“The National Security Court may have witnesses and experts examined by delegated judges even where the requirements of Article 216 of the Code of Criminal Procedure are not satisfied.”
61. Article 216 of the Code of Criminal Procedure provides:
“Where a witness or expert is for a long or indefinite period unable to attend a hearing on account of illness, invalidity or another reason, the court may decide to have him examined by a delegated judge or on commission...
This provision shall also apply to the examination of witnesses or experts who would have difficulty in attending the hearing on account of the distance from their place of residence.”
62. From the principles established by the Turkish courts when applying the criminal law, it is clear that the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage and not a measure designed to obtain evidence against him. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless be made voluntarily, and statements obtained through the use of pressure or force are not admissible in evidence. By Article 247 of the Code of Criminal Procedure, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor's office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence but must be supported by additional evidence.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-103226
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DUSHKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 6. The applicant was born in 1985 and lived in Bilgorod-Dnistrovsky.
7. In the early morning on 18 November 2002, responding to P.'s complaint about having been robbed, the police arrived in a bar and arrested the applicant, a minor at the material time, and V., his acquaintance, and took them to the police station for questioning. The applicant explained that he knew nothing about the robbery and left the police station. It is unclear whether he was officially released.
8. At about noon on 18 November 2002 the applicant was arrested when walking down a street. According to the applicant, he was seized by force by two policemen dressed in civilian clothes, without any explanations. According to the police officers, they invited him for questioning concerning P.'s robbery and he swore at them and attempted to escape, making it necessary to arrest him by force.
9. On the same date the applicant was charged with refusal to comply with the lawful demands of the police officers, presented before the Bilgorod-Dnistrovsky Court without his parents being informed or a lawyer being appointed, and sentenced to seven days' administrative detention.
10. On 19 November 2002 the police formally initiated criminal proceedings concerning P.'s robbery.
11. On 21 November 2002 the Bilgorod-Dnistrovsky Court reviewed the applicant's sentence after an objection from the Bilgorod-Dnistrovsky Prosecutor, reduced it to three days' detention and ordered the applicant's release. Subsequently (on 4 January 2003) the President of the Odessa Regional Court of Appeal quashed the decisions of 18 and 21 November 2002 by way of supervisory review, having found that the applicant should not have been subjected to administrative detention as he was a minor. He did find, however, that the applicant's malicious insubordination rendered him liable to a fine of 136 hryvnias (UAH).
12. Before his release on 21 November 2002, the applicant was questioned concerning P.'s robbery, in the presence of his mother and a lawyer appointed by the police, and confessed to having participated in the robbery.
13. Following his release, the applicant hired a new lawyer and retracted his confessions. He alleged that he had neither participated in, nor witnessed P.'s alleged robbery and that his previous confessions had been made under duress. He further explained that on 21 November 2002 he had confirmed his confession in presence of his mother and the advocate because the police had threatened that otherwise he would not be released from detention.
14. In December 2003 the applicant was committed for trial on charges of robbery. On 3 May 2005 the Bilgorod-Dnistrovsky Court remitted his case for additional investigation. The parties did not provide any further information concerning the outcome of the criminal proceedings.
15. According to the applicant, while he was serving his administrative detention sentence he was severely ill-treated by police officers, who tried to make him confess to participating in P.'s robbery. In particular, he was handcuffed to a radiator and beaten on the head and body with a plastic water bottle. On several occasions the applicant lost consciousness. As a result of the ill-treatment, on 18 and 19 November 2002 the applicant, who had not been given access to either a lawyer or his parents, wrote self-incriminating statements, dictated by the police. By way of evidence that he was so questioned, the applicant presented copies of his confession statements dated 18 and 19 November 2002. These documents contained his and the law-enforcement officers' signatures only (no signatures of an advocate or a minor's legal representative) and a seal of the BilgorodDnistrovsky Prosecutor's Office.
16. According to the Government, no investigative actions in the applicant's respect took place during his administrative detention.
17. According to the applicant, on 22 November 2002 he complained to the Bilgorod-Dnistrovsky and Odessa Regional Prosecutors' Offices that he had been ill-treated by the police, but he was denied referral to a forensic expert to assess his injuries.
18. On 23 November 2002 the Internal Security Service of the Ministry of the Interior agreed to provide the applicant with the necessary referral. On the same day the applicant underwent a forensic examination and was found to have minor bodily injuries. In particular, the expert found that the applicant suffered from abrasions and bruises on different parts of his body, a haematoma, situational neurosis, cephalalgia and a possible kidney contusion, which could have been sustained on 18 November 2002.
19. Between 26 November and 20 December 2002 the applicant received in-patient treatment for his injuries and stress in the BilgorodDnistrovsky District Hospital. Subsequently (in 2003-2004) the applicant also underwent medical treatment for depression and chronic pyelonephritis, conditions which, according to him, were caused by head and kidney injuries sustained at the hands of the police and related stress.
20. On various dates between 22 November 2002 and 1 April 2003 the applicant's mother complained about his ill-treatment to various authorities, including the ombudsman and the President of Ukraine, in various informal ways. However, it appears that no formal action followed.
21. On 1 April 2003 the applicant lodged an official request with the Bilgorod-Dnistrovsky Inter-District Prosecutor's Office to institute criminal proceedings in respect of his ill-treatment.
22. On 11 April 2003 the prosecutor's office refused to initiate the criminal proceedings, having found that there was no evidence of illtreatment. It noted, in particular, that on the morning of 18 November 2002 the applicant had left the police station without authorisation and that at noon on the same day he had refused to follow the police officers who invited him to report for questioning, had sworn at them, pushed them and attempted to escape. His arrest and the bringing of insubordination charges had therefore been justified. Moreover, during his detention the applicant had never requested medical assistance and upon his release he had signed a document stating that he had no claims against the police. No investigative measures in the applicant's respect had been taken during the period of his detention.
23. On 15 April 2003 the Deputy Head of the Bilgorod-Dnistrovsky Department of the Ministry of the Interior conducted an internal investigation and concluded that there was no ill-treatment case to answer. In particular, the only force applied to the applicant had been during his arrest and in response to his attempt to escape. He further noted that during the applicant's detention no investigative action had been taken in his respect. On 18 September 2003 and 1 April 2004 two other internal investigations were carried out and similar conclusions were reached.
24. On 10 January 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision refusing to initiate criminal proceedings concerning the applicant's ill-treatment complaint. It noted that the applicant had fallen to the ground on several occasions while trying to escape. It made no conclusions, however, as to whether or not these falls were the cause of the applicant's injuries. On the same date that decision was quashed by the Odessa Regional Prosecutor's Office and the case was remitted for additional investigation.
25. In the meantime, having been notified of the decision of 11 April 2003 in October 2003, the applicant appealed against it before the BilgorodDnistrovsky Court. He noted, in particular, that the prosecutor's office had not questioned him, his relatives or any witnesses to his arrest concerning the events in question. It also failed to respond to his allegation that there was no legal basis for the demand to appear for questioning and his ensuing arrest at noon on 18 November 2002. If the police officers had wanted to question him about P.'s robbery, according to the applicable law they should have issued a summons and informed his parents. This procedure had not been complied with; the police had unlawfully demanded that he follow them, so he should not have been convicted of insubordination. Further, the prosecutor's office had not reacted to the fact that the applicant's administrative detention had been unlawful as he had been a minor at the material time. In addition, the authorities had wrongly stated that no investigative action involving the applicant had been taken during his detention. In particular, on 18 and 19 November 2002 he had made self-incriminating statements.
26. On 15 January 2004 the Bilgorod-Dnistrovsky City Court annulled the decision of 11 April 2003. It stated, in particular, that the investigation had been perfunctory and that the prosecution had failed to establish the cause of the applicant's injuries. It further noted that the allegation that the applicant had not been questioned concerning P.'s robbery during his detention contradicted the factual evidence contained in the case-file materials.
27. On 9 February and 2 March 2004 the Bilgorod-Dnistrovsky Prosecutor's Office again refused to institute criminal proceedings into the applicant's ill-treatment allegations, relying on essentially the same arguments as above.
28. On 20 February and 6 March 2004 respectively those decisions were set aside by the Odessa Regional Prosecutor's Office and the General Prosecutor's Office, and the case was remitted for further investigation. The General Prosecutor's Office noted, in particular, that the investigation had not determined what legal basis there had been for the police officers' initial demand of 18 November 2002 that the applicant report for questioning, or whether the applicant's reaction vis-à-vis the police necessitated his arrest and the use of force against him. Further, the authorities had not questioned the applicant or the medical expert who had examined his injuries and had not verified the police officers' version that the applicant had fallen several times while trying to escape.
29. On 22 March 2004 the Odessa Regional Prosecutor's Office also addressed a letter to the Bilgorod-Dnistrovsky Prosecutor, alerting him that the investigation was perfunctory and one-sided. In particular, it was largely based on the explanations given by the police officers, without any other measures being taken to establish the real facts. It further invited the Bilgorod-Dnistrovsky Prosecutor to facilitate “a proper and professional investigation”.
30. On 5 April 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, which was set aside by the Odessa Regional Prosecutor's Office on 15 November 2004 and followed by a new refusal on 14 December 2004.
31. On 27 January 2005 the Odessa Regional Forensic Experts Bureau re-assessed the applicant's injuries as being of 'intermediate gravity'. In particular, it concluded that his depressive disorders and pyelonephritis could be connected to a traumatic experience in November 2002. It further concluded that, in view of their number and location, the injuries concerned could not have been sustained as a result of a single fall. It was likely that the injuries at issue had been caused by multiple impacts with blunt objects, such as a fist, a foot or the like.
32. Following this assessment, on 5 September 2005 the BilgorodDnistrovsky District Court set aside the decision of 2 March 2004 refusing to initiate criminal proceedings (which had already been annulled by the General Prosecutor's Office on 6 March 2004) and ordered further investigation.
33. On 23 March 2006 the Bilgorod-Dnistrovsky Prosecutor's Office refused to comply with the court's instructions, finding that further to the annulment of the decision of 2 March 2004 by the General Prosecutor's Office, it had already carried out additional investigations, and its last decision of 14 December 2004 was valid.
34. On 26 May 2006 the Odessa Regional Prosecutor's Office annulled that decision and ordered further investigation.
35. On 5 June 2006 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, relying essentially on the same arguments as in its previous refusals.
36. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).
VIOLATED_ARTICLES: 3


ITEMID: 001-71493
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: SKULSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Wojciech Skulski, is a Polish national who was born in 1965 and lives in Warszawa. The respondent Government were represented by Mr Krzysztof Drzewicki, of the Ministry of the Foreign Affairs and, subsequently, by Mr Jakub Wołąsiewicz, of the Ministry of the Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 9 March 1993 the applicant was detained on remand on suspicion of assault. He was released three months later.
On 17 May 1995 a bill of indictment against the applicant and another person was lodged with the Warszawa-Zolibórz District Court. The prosecuting authorities proposed that five witnesses be heard by the court.
A first hearing was held on 14 July 2000. Most of the hearings in the case were adjourned as the witnesses repeatedly failed to comply with the court summonses.
On 8 February 2002, when the domestic proceedings were still pending, the applicant introduced his application, complaining about the excessive length of these proceedings.
On 4 June 2002 the Court communicated the application to the respondent Government.
At the hearing on 4 September 2002 the Warsaw District Court gave a judgment. On 24 February 2003 the Warsaw Regional Court partly amended the judgment and upheld it as to its remainder.
By a letter of 26 November 2004 the Registry of the Court informed the applicant that it was open to him to avail himself of a domestic remedy in respect of the length of proceedings, as provided for by Article 18 of the 2004 Act.
In reply, by a letter of 3 November 2004, the applicant informed the Court that he did not intend to do so.
On 17 June 2004 Polish Parliament adopted a new law ‘on complaint about a breach of a right to have one’s case heard within a reasonable time’. The act entered into force on 17 September 2004.
Section 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending.
Pursuant to Section 2, if the court finds that the length complaint is wellfounded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in the amount not exceeding PLN 10,000.
Under Section 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.


ITEMID: 001-93300
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DYLLER v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1961 and lives in Tczew.
6. On 15 October 2003 the applicant was arrested by the police.
7. On 16 October 2003 the Tczew District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had committed a robbery by punching R.O. and taking a “Slava” watch from him worth 100 Polish zlotys (PLN). The court also relied on the severity of the penalty that was likely to be imposed on the applicant and the fact that he had been previously convicted of another robbery, for which he had been sentenced to two years’ imprisonment.
8. On 8 January 2004 the applicant’s pre-trial detention was extended.
9. On 26 March 2004 the applicant was indicted before the Tczew District Court. The prosecutor established that on 15 October 2003, in Tczew train station, R.O., a homeless person, had been stopped by an individual who had taken a can of beer from him. The individual had then returned, hit R.O. in the face, causing a bruise, and taken his watch. When the police arrived, R.O. identified the applicant as the perpetrator. On his arrest the applicant had dropped the watch and it had been returned to its owner, R.O.
10. On 8 April 2004 the Tczew District Court further extended the applicant’s detention, finding that the grounds previously given remained relevant. Moreover, the court did not find any circumstances that would point in favour of the applicant’s release.
11. On 15 July 2004 the Starogard Gdański District Court, to which the case had been transferred, dismissed the applicant’s request for release and further extended his pre-trial detention. It relied on the reasonable suspicion against the applicant and on the likelihood that a severe sentence would be imposed.
12. It appears that on 29 July 2004 the trial court held the first hearing. Subsequently, hearings were held at regular intervals.
13. On 14 October 2004 the District Court extended the applicant’s detention, relying solely on the likely severity of the sentence.
14. On 12 January and 11 April 2005 the applicant’s detention was further extended. The court’s reasons included two grounds: the reasonable suspicion against the applicant and the severity of the penalty that was likely to be imposed.
15. On 13 July 2005 the court extended the detention of the applicant relying, in addition to the likelihood of a severe penalty being imposed, on the need to secure the proper conduct of the proceedings.
16. On 30 September 2005 the Starogard Gdański District Court found the applicant guilty of the robbery of a watch worth not less than PLN 3, committed within five years of his previous conviction. The court established that both the applicant and the victim had been under the influence of alcohol. The applicant was sentenced to three years and six months’ imprisonment. The applicant lodged an appeal against the judgment.
17. The applicant’s detention was subsequently extended.
18. On 13 January 2006 the Gdańsk Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal and upheld the judgment. It appears that the applicant failed to lodge a cassation appeal with the Supreme Court (Sąd Najwyższy) and that the judgment became final.
19. On 14 April 2007 the applicant was released from detention, having served the totality of his sentence.
20. On 4 July 2005 the Tczew District Court acquitted the applicant of the charge of having stolen a can of beer worth PLN 2.8 from R.O. It appears that the judgment was not appealed against and became final.
21. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).
22. The relevant statistical data, recent amendments to the Code of Criminal Procedure designed to streamline criminal proceedings and references to relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).
VIOLATED_ARTICLES: 5


ITEMID: 001-103676
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ELMURATOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
TEXT: 5. The applicant was born in 1966 and lives in St Petersburg.
6. On several occasions (in 1988, 1992, 1994 and 1999) the applicant was convicted in Uzbekistan of disorderly conduct and attempted escape. In the applicant’s submission, in 1988, 1992, 1994, 1998, 1999, 2003 and 2004, while in the hands of Uzbek officials, he was subjected to illtreatment.
7. On 7 June 2004, in Uzbekistan, the applicant inflicted numerous cuts on himself and was placed in a hospital. He was discharged from the hospital on 16 June 2004.
8. In February 2008 the applicant arrived in Russia to look for work. He was registered as a migrant in St Petersburg.
9. On 28 March 2008 the Kumkurgan District Court of Uzbekistan ordered the applicant’s placement in custody under suspicion of having committed aggravated theft of cattle.
10. On 10 April 2008 an Uzbek investigator placed the applicant’s name on a wanted list.
11. On 27 April 2009 the applicant was arrested by Russian police at his place of residence in St Petersburg.
12. On 25 May 2009 the Uzbek Prosecutor General’s Office requested the applicant’s extradition. On 4 June 2009 the request was received by the Russian Prosecutor General’s Office.
13. On 28 September 2009 the Russian Prosecutor General’s Office decided to extradite the applicant to Uzbekistan.
14. On 12 October 2009 the applicant’s counsel lodged an appeal against the extradition order, arguing the following: proceedings concerning the applicant’s request for temporary asylum were still pending (see paragraphs 1821 below); the applicant’s extradition would entail a breach of Article 3 of the Convention because the Court had already found violations in the cases of Ismoilov and Others v. Russia and Muminov v. Russia involving extradition to Uzbekistan; according to independent international observers ill-treatment was widespread in the Uzbek prison system and fair trial guarantees were not respected. No reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan.
15. On 10 November 2009 the St Petersburg City Court dismissed the applicant’s appeal against the extradition order. It reasoned, in particular, that the applicant’s references to possible ill-treatment in Uzbekistan had been unsubstantiated and that the applicant had not argued that he might be persecuted on racial, religious, social or political grounds.
16. The applicant appealed against the decision of 10 November 2009, arguing that his submission that he would face ill-treatment in Uzbekistan had not been examined by the court. Again no reference was made to the applicant’s alleged previous experience while in detention in Uzbekistan.
17. On 24 December 2009 the Supreme Court of Russia upheld the decision of 10 November 2009. It reasoned as follows: the applicant had absconded from the Uzbek authorities; the decision to arrest the applicant had been taken by a competent Uzbek court; the applicant was not a Russian national; the Uzbek Prosecutor General’s Office had guaranteed that the applicant would not be extradited to a third State or punished for another crime, and that he would be free to leave Uzbekistan when he had served his sentence; there were no reasons to reject the extradition request; the applicant’s allegations that torture of detainees was a widespread practice in Uzbekistan had not been substantiated; the applicant had not proved that he might be persecuted on the grounds of race, religion, membership of a social group, political convictions or anything else.
18. In July and September 2009 the applicant applied for asylum to the Federal Migration Service of St Petersburg Region (“the FMS”). In his application, dated 23 September 2009, he claimed that all detainees in Uzbekistan were kept in poor conditions. On 15 October 2009 he was interviewed by FMS officials.
19. On 21 October 2009 the FMS dismissed the applicant’s request; he was notified of the decision on 23 October 2009.
20. The applicant then applied for temporary asylum. On 24 December 2009 the FMS dismissed his request.
21. On 10 February 2010 the applicant appealed against the FMS decision, arguing for the first time before the Russian authorities that he had been ill-treated in Uzbek prisons while serving his previous sentences.
22. Following the applicant’s arrest on 27 April 2009 (see paragraph 11 above), on 28 April 2009 the prosecutor’s office of the Krasnogvardeyskiy District of St Petersburg (“the district prosecutor’s office”), relying on Article 61 of the Minsk Convention, ordered the applicant’s placement in custody pending extradition on the basis of the decision of 28 March 2008 by the Kumkurgan District Court of Uzbekistan (see paragraph 9 above).
23. On 16 June 2009 the district prosecutor’s office, referring to Article 466 § 2 of the CCP, issued a new decision authorising the applicant’s placement in custody pending extradition on the basis of the Uzbek court decision of 28 March 2008.
24. On 28 June 2009 the applicant complained to a court, referring to Decision no. 333-O-P of 1 March 2007 of the Constitutional Court and the Court’s case-law, that he had been unlawfully detained for more than two months and that the term of his detention had not been extended.
25. On 24 August 2009 the Krasnogvardeyskiy District Court of St Petersburg (“the district court”) examined the complaint about unlawfulness of detention. It reasoned that, pursuant to Article 466 § 2 of the CCP, a prosecutor could place a person in custody where a foreign court’s arrest warrant and a request for extradition existed. However, in the applicant’s case, the district prosecutor’s office had applied the preventive measure before the extradition request had been sent and thus had breached Article 466 § 2 of the CCP. At the same time, the second district prosecutor’s office’s decision to remand the applicant in custody had been taken after the extradition request had been received. The district court concluded that the district prosecutor’s office’s decision of 28 April 2009 was unlawful. Nonetheless, it refused to release the applicant, arguing that the decision of 16 June 2009 was compatible with domestic law and thus served as a legitimate ground for the applicant’s detention. It also noted that “[t]he provisions of the CCP do not establish terms for deciding on extradition issues and procedure for extension of the term of detention of persons in respect of which an extradition request has been received from a foreign State”.
26. Both the applicant and the district prosecutor’s office appealed against the decision of 24 August 2009.
27. On 19 October 2009 the St Petersburg City Court quashed the decision of 24 August 2009 for procedural defects and remitted the case for a fresh examination at the first level of jurisdiction. It also stated that the preventive measure applied to the applicant should remain unvaried, without citing any legal grounds for his detention or specifying its term.
28. On 10 November 2009 the St Petersburg City Court, while upholding the extradition order, extended the applicant’s detention for three months, that is until 9 February 2010.
29. On 8 December 2009 the district court discontinued the proceedings concerning the applicant’s complaint that his detention was unlawful, for the reason that the St Petersburg City Court had extended the term of detention until 9 February 2010.
30. On 24 December 2009 the Supreme Court of Russia, while dismissing the applicant’s appeal against the extradition request, touched upon the issue of lawfulness of the applicant’s detention in one sentence: “There are no reasons to doubt the lawfulness of Mr Elmuratov’s custodial detention pending his extradition”.
31. On 29 January 2010 the district prosecutor’s office requested a court to extend the term of the applicant’s detention for two months.
32. On 8 February 2010 the district court granted the prosecutor’s request in part. It reasoned that the applicant had been charged with very serious crimes, such as theft of cattle, and that Rule 39 of the Rules of Court had been applied in his case and concluded that there were no grounds for varying the preventive measure. The term of the applicant’s detention was extended until 9 April 2010.
33. On 27 February 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 December 2009, for the reason that the Supreme Court of Russia had ruled on 24 December 2009 that his detention pending extradition was lawful.
34. On 18 March 2010 the St Petersburg City Court dismissed the applicant’s appeal against the decision of 8 February 2010.
35. On 6 April 2010 the district court extended the term of the applicant’s detention until 27 April 2010, for the reason that he had been charged with serious crimes, did not have a permanent place of residence and thus could abscond or continue his criminal activities.
36. On 27 April 2010 the district prosecutor’s office ordered the applicant’s release from custody, for the reason that the maximum period of his detention had expired.
37. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order must not exceed forty-eight hours (Article 22 § 2).
38. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54).
39. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2).
40. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years’ imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge’s decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime must not exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person has been charged with serious or particularly serious criminal offences (Article 109 § 3).
41. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons’ interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual’s access to court” may be subject to judicial review (Article 125).
42. Upon receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, the Prosecutor General or his deputy is to decide on the preventive measure in respect of the person whose extradition is sought. The preventive measure is to be applied in accordance with the established procedure (Article 466 § 1).
43. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2).
44. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)).
45. Verifying the compatibility of Article 31 § 2 of the Law on Legal Status of Foreign Nationals in the USSR of 1982, the Constitutional Court ruled that a foreign national liable to be expelled from the Russian territory could not be detained for more than forty-eight hours without a court order.
46. Assessing the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its settled case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
47. In the Constitutional Court’s view, the absence of specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the 1993 Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, that is the procedure laid down in the CCP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Preventive measures”), which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests.
48. The Constitutional Court emphasised that the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCP or in excess of the time-limits fixed in the Code.
49. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person’s detention with a view to extradition.
50. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific provisions of the criminal law governing the procedure and time-limits for holding a person in custody with a view to extradition. That matter was within the competence of the courts of general jurisdiction.
51. The Constitutional Court reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention as such, in that it required a court to examine whether the arrest was lawful and justified.
52. The Constitutional Court held that Article 466 § 1 of the Code of Criminal Procedure, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure established in the Russian Code of Criminal Procedure and within the time-limits fixed in the Code.
53. The Constitutional Court dismissed as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCP, stating that this provision “does not establish time-limits for custodial detention and does not establish the reasons and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate constitutional rights of [the claimant] ...”
54. By a Directive Decision No.1 adopted by the Plenary Session of the Supreme Court of the Russian Federation on 10 February 2009, (“Directive Decision of 10 February 2009”) the Plenary Session issued several instructions to the courts on the application of Article 125 of the CCP. The Plenary reiterated that any party to criminal proceedings or other person whose rights and freedoms were affected by actions or the inaction of the investigating or prosecuting authorities in criminal proceedings could invoke Article 125 of the CCP to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stated that whilst the bulk of decisions amenable to judicial review under Article 125 also included decisions to institute criminal proceedings, refusals to admit defence counsel or to grant victim status, a person could not rely on Article 125 to challenge a court’s decision to apply bail or house arrest or to remand a person in custody. It was further stressed that in declaring a specific action or inaction on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to quash the impugned decision or to oblige the official responsible to quash it, but could only request him or her to rectify the shortcomings indicated. Should the impugned authority fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s inaction and the latter body could issue a special decision [частное определение], drawing the authority’s attention to the situation. Lastly, the decision stated that a prosecutor’s decision to place a person under house arrest or to remand him or her in custody with a view to extradition could be appealed against to a court under Article 125 of the CCP.
55. In a Directive Decision No. 22, adopted by the Plenary Session of the Supreme Court of the Russian Federation on 29 October 2009 (“Directive Decision of 29 October 2009”), it was stated that, pursuant to Article 466 § 1 of the CCP, only a court could order the placement in custody of a person in respect of whom an extradition check was pending and where the authorities of the country requesting extradition had not submitted a court decision remanding him or her in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCP and following a prosecutor’s request for that person to be placed in custody. In deciding to remand a person in custody a court was to examine if there were factual and legal grounds for the application of that preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCP. In extending a person’s detention with a view to extradition a court was to apply Article 109 of the CCP.
56. When carrying out actions requested under the Minsk Convention, to which Russia and Uzbekistan are parties, an official body applies its country’s domestic laws (Article 8 § 1).
57. Upon receipt of a request for extradition, the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60).
58. The person whose extradition is sought may be arrested before receipt of a request for extradition if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).
59. A person detained pending extradition pursuant to Article 61 § 1 of the Minsk Convention must be released if the requesting country fails to submit an official request for extradition with all requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1).
60. The UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006 the following:
“The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven’s visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.”
61. In November 2007 Human Rights Watch issued a report entitled “Nowhere to Turn: Torture and Ill-Treatment in Uzbekistan”, which provides the following analysis:
“Prolonged beatings are one of the most common methods used by the police and security agents to frighten detainees, break their will, and compel them to provide a confession or testimony. They often start beating and kicking detainees with their hands, fists, and feet and then continue using truncheons, filled water bottles and various other tools ...
Several individuals reported that they were either tortured with electric shocks or forced by police to watch as others were tortured with it ...
Police and security officers sometimes use gas masks or plastic bags to effect near asphyxiation of detainees. After forcing an old-fashioned gas mask over the head of the victim, who in some cases is handcuffed to a chair, the oxygen supply is cut ...”
62. The UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008 the following:
“741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials ...
743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted.
744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002 ...”
63. Amnesty International issued on 1 May 2010 a document entitled “Uzbekistan: A Briefing on Current Human Rights Concerns”, stating the following:
“Amnesty International believes that there has been a serious deterioration in the human rights situation in Uzbekistan since the so-called Andizhan events in May 2005. ...
Particularly worrying in the light of Uzbekistan’s stated efforts to address impunity and curtail the use of cruel, inhuman and degrading treatment have been the continuing persistent allegations of torture or other ill-treatment by law enforcement officials and prison guards, including reports of the rape of women in detention. ...
Despite assertions by Uzbekistan that the practice of torture has significantly decreased, Amnesty International continues to receive reports of widespread torture or other ill-treatment of detainees and prisoners.
According to these reports, in most cases the authorities failed to conduct prompt, thorough and impartial investigations into the allegations of torture or other illtreatment. Amnesty International is concerned that impunity prevails as prosecution of individuals suspected of being responsible for torture or other illtreatment remains the exception rather than the rule. ...
Allegations have also been made that individuals returned to Uzbekistan from other countries pursuant to extradition requests have been held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated and have been subjected to unfair trial. In one case in 2008, for example, a man who was returned to Uzbekistan from Russia was sentenced to 11 years’ imprisonment after an unfair trial. His relatives reported that, upon his return to Uzbekistan, he was held incommunicado for three months during which time he was subjected to torture and other ill-treatment in pre-trial detention. He did not have access to a lawyer of his own choice and the trial judge ruled evidence reportedly adduced as a result of torture admissible. ...
The government continued its strict control over religious communities, compromising the enjoyment of their right to freedom of religion. Those most affected were members of unregistered groups such as Christian Evangelical congregations and Muslims worshipping in mosques outside state control.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
NON_VIOLATED_ARTICLES: 3