ITEMID: 001-92114
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DZHABRAILOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1944 and lives in the village of Goyty in Urus-Martan District in the Chechen Republic.
8. The applicant is the mother of Mr Khanpasha Lechayevich Dzhabrailov, born in 1976. At the material time the applicant, Mr Khanpasha Dzhabrailov, his wife and their three children lived at 24 Shamov Street, Goyty village.
9. The account below is based on eyewitness statements of the applicant and her daughter, Ms Raisa Dzhabrailova.
10. According to the applicant, the village of Goyty was under the federal forces’ control from December 1999. The road leading to and from the village was blocked by federal checkpoints.
11. On 10 April 2003 at around 4 a.m. a khaki UAZ vehicle, a grey UAZ off-road vehicle («таблетка») and a grey bus with a blue stripe arrived at the Dzhabrailovs’ house. Around twenty armed men in masks and camouflage uniforms got out of the vehicles; the applicant believed that they belonged to the Russian military because they spoke unaccented Russian and could move freely around the village during the curfew.
12. Around ten servicemen entered the house, woke the Dzhabrailovs and, threatening them with their machine guns, forced them to the floor. Then they seized Mr Khanpasha Dzhabrailov’s badge of an employee of a local human rights NGO, grabbed the young man and dragged him to the door. When the applicant and her daughter-in-law asked them where they intended to take Mr Khanpasha Dzhabrailov, the servicemen gave no clear answer but shouted at the women, using mostly swear words. They then blindfolded Mr Khanpasha Dzhabrailov and took him away.
13. Ms Raisa Dhzbrailova followed the servicemen and saw them put Mr Khanpasha Dzabrailov into the bus and leave in the direction of UrusMartan.
14. According to the Government, on 10 April 2003 at about 4 a.m. a group of at least ten unidentified persons in masks and camouflage uniforms armed with automatic firearms entered the house at 24 Shamov Street in Goyty village, abducted Mr Khanpasha Dzhabrailov and took him away to an unknown destination.
15. On 11 April 2003 the applicant complained in writing about her son’s abduction to the military commander’s office of the Urus-Martan District.
16. On 27 April 2003 the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) instituted an investigation into Mr Khanpasha Dzhabrailov’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 34051.
17. On 30 April 2003 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) forwarded the applicant’s complaint about her son’s disappearance to the district prosecutor’s office.
18. On 27 June 2003 the district prosecutor’s office stayed the investigation for failure to identify those responsible.
19. On 10 June (or September) 2003 the military commander’s office of Urus-Martan District informed the applicant in reply to her complaint of 11 April 2003 (see paragraph 15 above) that they had carried out an internal inquiry which had not established Mr Khanpasha Dzhabrailov’s whereabouts or the identities of those who had abducted him. They also assured the applicant that they would continue searching for her son.
20. On 10 September 2003 the district prosecutor’s office informed the applicant that they had stayed the investigation in case no. 34051 on 27 June 2003 and advised her that she had the opportunity to appeal against that decision.
21. On 30 September 2003 the department of the interior of Urus-Martan District informed the applicant that since 27 May 2003 they had been carrying out search activities in relation to the kidnapping of Mr Khanpasha Dzhabrailov.
22. On 9 December 2003 the republican prosecutor’s office forwarded the applicant’s complaint about her son’s kidnapping to the district prosecutor’s office and ordered them to update her on the outcome of the investigation. On 17 December 2003 the district prosecutor’s office replied, without specifying the date, that the investigation into Mr Khanpasha Dzhabrailov’s kidnapping had been stayed.
23. On 28 January 2004 the district prosecutor’s office informed the applicant that the investigation in case no. 34051 had been suspended and invited her to provide the investigators with any new pieces of relevant information that she might obtain.
24. On 12 July 2004 the republican prosecutor’s office informed the applicant that investigative measures were being taken to resolve Mr Khanpasha Dzhabrailov’s kidnapping.
25. In a letter of 22 September 2005 the district prosecutor’s office informed the applicant’s daughter, Ms R. Dzhabrailova, that operational and search activity was under way in criminal case no. 34051 and that she would be notified if any important information emerged.
26. On 15 December 2005 the republican prosecutor’s office forwarded Ms R. Dzhabrailova’s complaint to the district prosecutor’s office with a request for more activity in the investigation, for all necessary measures to be taken to establish the whereabouts of the missing person and for Ms R. Dhzabrailova to be informed of the results of the examination of her complaint.
27. In a letter of 2 January 2006 the district prosecutor’s office informed the applicant’s daughter that operational and search activity was under way in criminal case no. 34051 opened on 27 April 2003, that during the preliminary investigation the authorities had taken the steps it was possible to take in the absence of the culprits, and that she would be notified if any important information emerged.
28. In a letter of 14 March 2008 the investigator in charge informed Mr L. Dzhabrailov that the investigation in case no. 34051 had been stayed on 4 March 2008 and that it was open to him to challenge this decision in accordance with Articles 124 and 125 of the Russian Code of Criminal Procedure. The letter did not specify the ground on which the investigation had been suspended.
29. According to the applicant, at some point she and her daughter spoke to an official of the district prosecutor’s office, who had allegedly said to them that Mr Khanpasha Dzhabrailov had confessed that he had been a participant in illegal armed groups. In the Government’s submission, in the criminal investigation file there was a police report, rather than Mr Khanpasha Dzhabrailov’s confession, stating that the applicant’s son had been a member of illegal armed groups and participated in operations under command of Salman Raduyev, one of the Chechen field commanders. According to the Government, however, this information had not been confirmed during the investigation.
30. In the applicant’s submission, since the beginning of 2008 the investigating authorities had visited her house on three occasions and questioned ten witnesses, all of whom had confirmed that Mr Khanpasha Dzhabrailov had been a law-abiding person and had had no enemies.
31. According to the Government, the investigation was repeatedly suspended owing to failure to establish those responsible and then reopened pursuant to supervising prosecutors’ orders, but had been unable to date to identify the alleged perpetrators.
32. In the Government’s submission, in course of the investigation the investigating authorities questioned the applicant as well as Mr L. Dzhabrailov and Ms R. Dhzabrailova, who confirmed the circumstances of the incident of 10 April 2003. In particular, the applicant had stated, as alleged by the Government, that on the date in question ten unidentified armed people in masks and camouflage uniforms had arrived at the Dzhabrailovs’ address in a grey UAZ off-road vehicle, a UAZ vehicle and a Gazel minibus, put Mr Khanpasha Dzhabrailov in the UAZ off-road vehicle and taken him away. According to the applicant, the other witnesses gave similar oral evidence.
33. According to the Government, the status of victim was granted to Ms Ya. Dhzbrailova – Mr Khanpasha Dzhabrailov’s wife – on 26 May 2003, and then to Mr L. Dzhabrailov on 15 June 2004. It does not appear that the applicant has ever been declared a victim in the case.
34. The Government also submitted that the investigating authorities sent enquiries to law-enforcement bodies in the Chechen Republic and further in the Northern Caucasus. According to the replies received by the investigators, no criminal proceedings had ever been brought against Mr Khanpasha Dzhabrailov, he had not been arrested by any of those lawenforcement agencies, nor kept in any detention centres, there was no information as to whether he had participated in illegal armed groups, he had not been found among unidentified corpses and had never applied for assistance to any medical institutions. The replies also stated that the federal forces had not conducted any special operation in the Urus-Martan District on 10 April 2003, and that Mr Khanpasha Dzhabrailov’s whereabouts could not be established despite steps taken to find him.
35. In the Government’s submission, at present investigative actions are being taken aiming at resolving the crime and punishing those responsible.
36. On 26 January 2004 the applicant complained to Urus-Martan Town Court that the investigators were taking no action in case no. 34051. She also requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file. It is unclear whether Urus-Martan Town Court replied to that complaint.
37. On 22 March 2004 the applicant complained to the Supreme Court of the Chechen Republic that the investigation was ineffective and requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file.
38. On 12 May 2004 the Supreme Court of the Chechen Republic forwarded the applicant’s complaint to the prosecutor’s office of the Chechen Republic to be examined in compliance with the subject matter jurisdiction rules.
39. It is unclear whether the applicant’s complaints have been examined by domestic courts.
40. In September 2007, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 34051 opened in connection with the abduction of the applicant’s son. The Government refused to submit any documents from the file, stating that under Article 161 of the Russian Code of Criminal Procedure disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. They also submitted that they had taken into account the possibility of requesting confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file the applicant or her representatives would not disclose these materials to the public. According to the Government, in the absence of any sanctions in respect of the applicant for the disclosure of confidential information and materials, there were no guarantees concerning compliance by the applicant with the Convention and the Rules of Court.
41. In December 2007 the Court reiterated its request. In reply, the Government again refused to produce any documents from the file for the aforementioned reasons. At the same time, they suggested that a Court delegation could be given access to the file in Russia, with the exception of those documents containing military and State secrets, and without the right to make copies of the case file.
42. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.
VIOLATED_ARTICLES: 2
3
5


ITEMID: 001-90129
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LASZLO NEMETH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1961 and lives in Szomód.
5. In the context of a real estate dispute, on 13 August 1993 the applicant brought an action claiming partial ownership of a house.
6. After having held several hearings and obtained the opinions of two experts, on 27 August 1998 the applicant was granted one fifth of the property in question.
7. On appeal, on 17 March 1999 the Komárom-Esztergom County Regional Court quashed this decision.
8. In the resumed proceedings, the Tata District Court held several hearings and obtained the opinion of an expert. On 12 June 2003 it gave judgment, granting the applicant partial ownership. Simultaneously, it dissolved the common ownership thus created, gave the part allocated to the applicant to the respondent, and ordered the latter to compensate the former.
9. On appeal, on 4 February 2004 the Regional Court amended this decision and gave a final judgment.
10. The applicant filed a petition for review with the Supreme Court.
11. On 31 January 2005 the Supreme Court dismissed the petition in preliminary proceedings. In a reasoned decision, it held that the applicant’s petition was inadmissible because it did not disclose a breach of the relevant law, in particular the rules concerning the termination of common ownership. The Supreme Court’s order was served on him on 17 February 2005.
VIOLATED_ARTICLES: 6


ITEMID: 001-61096
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF MOTTOLA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1932 and lives in Benevento.
8. He is the owner of a flat in Benevento, which he had let to N.C.
9. In a writ served on the tenant on 27 April 1994, the applicant informed the tenant of his intention to terminate the lease and summoned the tenant to appear before the Benevento Magistrate.
10. By a decision of 25 May 1994, which was made enforceable on the same day, the Benevento Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 November 1996.
11. On 30 November 1996, the applicant served notice on the tenant requiring him to vacate the premises.
12. On 10 February 1997, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 25 February 1997.
13. Between 25 February 1997 and 9 November 1998, the bailiff made nine attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
14. Pursuant to Section 6 of Law no. 431/98, the tenant asked the Benevento District Court to set a new date for the enforcement of the order for possession. The date was set for 25 April 2000 and then for 30 September 2000.
15. On 12 October 2000, the applicant served notice on the tenant requiring him to vacate the premises.
16. On 4 November 2000, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 27 November 2000.
17. Between 27 November 2000 and 26 April 2001, the bailiff made four attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance.
18. A new attempt of the bailiff to enforce the order for possession was set for 21 June 2001.
19. On 8 August 2001, the applicant recovered possession of the flat.
20. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113273
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TITARENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3 - Rights of defence) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);No violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life);Non-pecuniary damage - award
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1962 and lives in Debaltseve.
6. On 12 April 1996 the applicant (a former police officer) and a Mr B. were placed on the wanted list as suspects in the robbery of a certain Mrs A.
7. On 24 June 1996 five police officers arrived at a summer house outside the town of Svetlodarsk, in the Donetsk region, as it was believed that the applicant and Mr B. were hiding there. When the officers approached the house and identified themselves, they were shot at from a Kalashnikov assault rifle and hand grenades were thrown at them. As a result one police officer was killed and two sustained severe injuries. The perpetrators escaped.
8. On the same day the Artemiskiy District Prosecutor’s Office (hereafter “the Prosecutor’s Office”) instituted criminal proceedings for murder and attempted murder of police officers on duty.
9. On 3 July 1996 the Prosecutor’s Office charged the applicant in his absence with the above offences and ordered his arrest. On the following day he was placed on the list of wanted persons.
10. On 10 July 1996 the criminal proceedings against the applicant were suspended because of failure to establish the whereabouts of the applicant and his co-accused.
11. On 9 March 2000 the applicant was arrested in Greece under an international arrest warrant.
12. On 9 August 2000 he was extradited from Greece to Ukraine and the criminal proceedings against him were resumed. On the same day the Donetsk Regional Bar appointed lawyer R. to represent the applicant in the above proceedings from 11 August 2000. The applicant’s relatives signed a contract with lawyer R. for the applicant’s representation.
13. The applicant alleged that following his arrival in Ukraine he had been placed in police custody and beaten for three days until he incriminated himself. According to the domestic court’s findings in the judgment against the applicant (see paragraph 29 below), on 10 August 2000 police officers I.S. and D.S. visited the applicant in the police detention unit for a confidential talk (доверительная беседа) about unrelated matters, namely arms trafficking in the region. The officers did not ask him about the police officer’s murder, but the applicant himself told them that on the day of the murder he had been on the first floor of the summer house in question and that, when escaping, he had thrown a hand grenade, which had not exploded. Two other police officers, N. and A., also visited the applicant in connection with yet another unrelated crime. They stated that he had proclaimed his innocence but refused to make any official statement in the absence of his lawyer. All four officers denied any coercion towards the applicant.
14. On 11 August 2000 the applicant was presented with charges, amended to take account of evidence collected since June 1996. After being formally charged the applicant was questioned in the presence of his lawyer R. He confirmed his earlier confession statements. He did not complain of any ill-treatment. According to the applicant, after this interview he was not allowed to see his lawyer for fifteen days. According to the Government, on 29 August 2000 the applicant was questioned in the absence of his lawyer as he had expressed a wish to be questioned without a lawyer; on other days during this period the lawyer R. did not ask to see the applicant.
15. On 1 and 5 September 2000 an ambulance was called for the applicant in connection with renal colic.
16. On 4 September 2000 the applicant’s brother asked the investigator to allow lawyer K. to act as defence counsel in the case, as lawyer R. was busy in other proceedings. This request was allowed.
17. On 6 September 2000 the applicant, assisted by lawyer K., participated in an on-site reconstruction of the events of the crime.
18. On 8 September 2000 lawyer R. asked the investigator to allow him unlimited visits to the applicant during the investigation. On 11 September 2000 the investigator allowed him one visit to the applicant. On 28 September 2000 lawyer R. challenged the investigator’s decision before the Donetsk Regional Prosecutor’s Office. In October 2000 the Head of the Investigation Department of the Donetsk Regional Prosecutor’s Office allowed lawyer R. unlimited visits to the applicant.
19. On 22 September 2000 the Artemivsk District Prosecutor extended the applicant’s detention until 26 October 2000. On 14 October and 25 December 2000 the Donetsk Regional Prosecutor further extended the applicant’s detention until 26 December 2000 and 26 January 2001 respectively. On 11 January and 20 February 2001 the applicant’s detention was extended until 9 March and 9 June 2001 respectively by the General Prosecutor’s Office.
20. On 20 October 2000 the applicant’s mother complained to the General Prosecutor’s Office that the applicant had been ill-treated and that his access to his lawyer had been limited. By letter of 28 November 2000, the Donetsk Regional Prosecutor’s Office replied to this complaint. They noted, among other things, that there had been no evidence that the applicant had been ill-treated and the applicant himself denied any ill-treatment. They also noted that the applicant had been questioned in the presence of his lawyer R. on 11 August 2000 and that there had been no obstacles to communication between the applicant and his lawyer. All requests by lawyer R. for meetings with the applicant had been satisfied and the lawyer had obtained a permit to see the applicant at any time without limitation on the duration of his visits.
21. In November 2000 the applicant changed his evidence and claimed that his confessions had been extracted under duress. The applicant stated that he could not have been involved in the imputed offences to him, as he had been in Vladikavkaz (Russia) at the relevant time. The applicant alleged that, having learned from his relatives that the police were looking for him in relation to the shooting, he had decided not to return to Ukraine.
22. On 13 May 2001 the Donetsk Regional Prosecutor’s Office refused to institute criminal proceedings against the police officers for alleged ill-treatment of the applicant on the ground of lack of corpus delicti.
23. On 2 July 2001 the Prosecutor’s Office submitted to the Donetsk Regional Court of Appeal (hereafter “the Court of Appeal”) a bill of indictment against the applicant and his co-defendant, Mr B. They were to stand trial for the murder and attempted murder of police officers on duty and for illegal possession of firearms.
24. On 1 August 2001 a preparatory hearing was held before a judge of the Court of Appeal. Neither the applicant nor his lawyer was present. The judge considered that the case was ready for trial and decided, without giving any reasons, that the applicant was to remain in detention on remand.
25. The trial started on 19 September 2001 in the premises of the Debaltseve Local Court. During the court hearings the applicant was held in a metal “cage” in the court room. His lawyer sat in the courtroom at some distance from the “cage”.
26. On 10 January 2002 the applicant lodged an application for release. In a letter of 23 January 2002 the presiding judge informed him that this request would be examined at the next court hearing. That hearing took place on 11 April 2002, when the court examined the above request and refused to change the preventive measure imposed on the applicant on the ground that he could flee from justice or obstruct the investigation. The court took into account that the applicant was accused of serious crimes punishable by more than three years’ imprisonment, that he had no permanent residence or work on the territory of Ukraine and that he had been hiding in Greece with false documents and had been extradited from that country.
27. On 21 July 2002 the Court examined another application for release lodged by the applicant on 3 July 2002 and rejected it on the same grounds as on 11 April 2002.
28. During the trial the applicant and his mother requested family visits to the applicant on several occasions. By letters of 31 October 2001, 23 January 2002 and 5 August 2003 the Donetsk Regional Court of Appeal rejected their requests and informed them that under Article 345 of the Code of Criminal Procedure detained defendants could receive family visits only after a conviction.
29. On 6 April 2004 the Court of Appeal, composed of two professional and three lay judges (народні засідателі), found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The applicant’s conviction was based on his and Mr B.’s confession statements, given during the investigation in the presence of their lawyers, and on the statements of four police officers involved in the incident of 24 June 1996, two of whom had identified the applicant as one of the perpetrators. The trial court also took into account an airplane ticket issued in the name of the applicant, which had been found at the scene during the investigation, and the applicant’s passport, discovered in bushes near the perpetrators’ escape route. The court examined the applicant’s complaints about violation of his defence rights. It noted that the initial questioning of the applicant, his confrontation with one of the victims and the reconstruction of the scene of the crime, on which the court relied in its decision, had been conducted with the participation of the applicant’s lawyer. As to his questioning on 29 August 2000 without a lawyer, the court noted that the applicant had voluntarily agreed to make statements without his lawyer and had not complained on that date of any ill-treatment.
The court also examined the applicant’s complaints of ill-treatment by the police, who had allegedly forced him to incriminate himself during the first days of the investigation. The court found that on the day after his arrest he had been informally questioned by four police officers on matters unrelated to his criminal case and had confessed to being at the scene of the crime without having been asked about this event (see also paragraph 14 above). The court noted that the applicant’s allegations had not been supported by any evidence and that the applicant did not complain about any ill-treatment in the presence of his lawyer on 11 August 2000. The court further noted that the prosecution had investigated the applicant’s complaints and refused to institute criminal proceedings against the police officers. The court agreed with the prosecutor’s decision and dismissed the applicant’s complaints.
30. On 6 April 2004 the court also allowed the applicant to see his parents.
31. The applicant appealed to the Supreme Court. In his appeal, among other things, the applicant challenged the bench that had delivered the judgment of 6 April 2004, alleging that, whereas section 65 of the Judiciary Act provided that lay judges were to be appointed from lists approved by the municipal authorities, the names of two out of the three lay judges who had participated in his trial did not appear in the list approved by the Debaltseve Town Council on 27 November 2003.
32. On 16 December 2004 the Supreme Court upheld the judgment of 6 April 2004. It noted, in particular, that the bench of the appellate court had been composed in compliance with law.
33. On his arrival from Greece on 9 March 2000 the applicant was placed in the Donetsk City Temporary Detention Centre (“the ITT”). He was subsequently detained in a number of other detention facilities, including the Donetsk Pre-trial Detention Centre (“the SIZO”) and the Debaltseve ITT.
34. In July 2002 the Court of Appeal held several hearings in his case in the town of Debaltseve. In consequence, he was transferred to the Debaltseve ITT, where he was held from 8 to 15 July 2002. During the court hearings, the applicant complained about the conditions of his detention. He alleged that the food supply was inadequate and that he had not been allowed to receive parcels from his relatives. He further complained that, in spite of the summer heat, the cell had no water supply, which rendered the sanitary conditions unbearable.
35. On 23 August 2002 the Donetsk Regional Prosecutor’s Office instructed the Debaltseve Town Prosecutor’s Office to investigate the applicant’s allegations that the applicant was not provided with food and not allowed parcels from his relatives during his stay in the Debaltseve ITT in the period May to June 2001.
36. On 27 August 2002 the Debaltseve Town Prosecutor’s Office issued a decision refusing to institute criminal proceedings against the officers of the Debaltseve ITT, for lack of evidence of a crime. The prosecution established that during his stay in the Debaltseve ITT the applicant had received three parcels from his mother and she had never made any complaint. The prosecution further referred to statements by ITT wardens, who alleged that the applicant had been provided with food regularly. The prosecution further noted that during the applicant’s stay in the ITT the Debaltseve Prosecutor’s Office carried out several inspections of the conditions and lawfulness of the applicant’s detention, following his complaints.
37. Whilst in the Donetsk SIZO the applicant was held in a cell designated for (former) law-enforcement officers. The applicant states that on 25 September 2002, he was transferred to a medical wing in a cell assigned to inmates infected with tuberculosis. He was then allegedly transferred to a cell with another inmate, who threatened him with violence on the ground that he was a former police officer.
38. From October 2002 the applicant filed a number of complaints with the Prosecutor’s Office concerning the above incident in the Donetsk SIZO and the conditions of his detention in the Debaltseve ITT; he also alleged that this detention was unlawful.
39. On 7 October 2002 the Deputy Prosecutor of the town of Debaltseve issued a certificate (довідка) concerning the hygiene norms in the Debaltseve ITT. The certificate stated that the representatives of the Prosecutor’s Office and the specialists of the Sanitary-Epidemiological Station had inspected the conditions of detention in the above ITT. They found that the ITT had six cells, equipped with sanitary facilities and a water supply. The toilets and wash basins were in order. Drinking water was supplied as per the schedule. The ITT had a shower which was also in order. The cells were equipped with bunk beds, a table and benches. The certificate further noted that the ITT had a sufficient quantity of mattresses and bed linen, but the inmates used their own bedding. The inmates were provided with three hot meals per day. It also noted that the applicant had complained about the conditions of his detention in the ITT during his stay there in 2001. During the prosecutor’s regular (every ten days) inspections of the conditions of detention in the ITT in 2002 the applicant had made no complaints to him. In conclusion, it was noted that no violation of the relevant legislation had been established.
40. In a letter of 22 October 2002 the Prosecutor’s Office stated that in September 2002 the applicant had been examined by a prison doctor and was diagnosed as suffering from chronic gastritis. The doctor recommended that he be moved to the medical wing. There was no indication that the applicant was ever placed in a cell with inmates suffering from tuberculosis. The medical wing did not have a cell designated for (former) lawenforcement officers. However, immediately after his request, the applicant was removed from the cell he was sharing with the person who had allegedly threatened him.
41. On 16 October 1996 the Ministry of the Interior, the Ministry of Justice, the General Prosecutor’s Office, the Supreme Court and the Security Service, by a joint order, approved the Instruction on the Procedure for Escorting Accused or Convicted Persons) to and from, or in, Courts at the Judicial Authorities’ Request. The relevant provisions of the Instruction read:
“7. ...The area in the courtroom where defendants are held shall be equipped with a bench and a wooden barrier of one metre in height, which shall be fastened to the floor. In courtrooms located on the ground floor the windows shall be barred. In each court building, up to 50% of the courtrooms in which criminal cases are heard shall be equipped with stationary metal barriers separating the defendants from the judges’ bench and from others persons present in the room... The windows in these rooms shall be barred irrespective of the floor on which they are located.”
“23. On an oral instruction by the presiding judge, the head guard shall allow the accused or convicted person to speak to his counsel, experts or public prosecutors and shall allow a doctor to examine the accused or convicted person; during such exchanges, however, the accused or convicted person shall continue to be guarded.
Such talks are usually conducted in an available room designated for holding accused or convicted person during breaks in court hearings and may be conducted in any language...”
42. Under section 12(1) of the Pre-Trial Detention Act 1993, permission for relatives to visit a detainee (in principle, once a month for one to two hours) can be given by the authorities of the place of detention, but only with the written approval of an investigator or a court dealing with the case, depending on whether it is the investigation or the trial stage.
43. The relevant provisions of the Code of Criminal Procedure 1960 read:
Article 162
Visiting a detainee
“Visits by relatives or other persons to a detainee may be authorised by the person or institution which is dealing with the case. The duration of the visit shall be fixed from one to two hours. As a rule, visits may be authorised no more than once a month.”
Article 345
Granting relatives permission to visit a convicted person
“Prior to the entry into force of the judgment, the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person, upon their request, permission to visit the detained convicted person.”
Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005-II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 39-42, 4 March 2010).
“b. Militia central holding facilities (ITT)
...
49. Despite the measures announced in the responses of the Ukrainian authorities to the recommendations made by the CPT in its two previous reports, the delegation could not identify any noticeable improvements in the conditions of detention of the ITTs visited... The Committee believes that it would be more useful to highlight the main deficiencies in the ITTs from an overall perspective, rather than to enter into an in-depth analysis of each ITT visited; indeed, the challenges facing ITT establishments are, to all intents and purposes, similar.
50. The majority of ITTs visited were overcrowded. For example, in Sebastopol ITT, up to 10 persons were being held in cells of 15 m² and in several cells there were more persons than beds.
51. In all the ITTs visited, access to natural light was obstructed by dense metal netting on the windows or jalousies and the artificial lighting was, in general, insufficient. Reading of any kind was a strain on the eyes. The ventilation was inadequate and the air in the cells visited heavy. The lack of ventilation was exacerbated by the fact that the cells tended to be fetid, detainees being provided with neither products for cleaning their cells nor the possibility of washing themselves other than in a basin of cold water. Only in Lytne ITT did all detainees have the possibility of a shower during their stay. Further, the sanitary facilities in nearly all the ITTs visited left something to be desired. A notable exception was Simferopol ITT, where the delegation noted the cells were clean and the detainees possessed basic hygiene products.
In several ITTs there was an insufficient quantity of mattresses and blankets for all the detainees, while the cleanliness of those available was questionable. Further, with one or two exceptions, the ITTs visited did not possess outdoor exercise facilities. Nor was there any provision for activities; in many ITTs, detainees were not even permitted newspapers.
52. In most ITTs, the single daily meal was supplemented by food parcels from relatives. Those without relatives shared the food of others. Given the fact that the Militia are unable financially to provide sufficient food to detainees, food parcels should not be subject to undue restrictions.
The CPT has already made its position clear ... as regards ready access to drinking water; it is concerned that detainees in Kyiv ITT were denied such access.
53. In the light of the unacceptable conditions referred to above, the CPT was all the more concerned to learn that a significant number of detainees were being held in ITTs for periods much longer than the 10 day legal limit.
...
57. The CPT has already welcomed the measures taken by the Ukrainian authorities in response to the immediate observation made by its delegation. Notwithstanding those measures, the Ukrainian authorities still have some way to go to fulfil their responsibility to detain persons deprived of their liberty under conditions fully consistent with human dignity. It is clear that, in order to achieve lasting improvements, the highest priority should be given to the objective of reducing overcrowding. Only then can the efforts made by the Ukrainian authorities be expected to bear fruit. However, certain steps must be taken in the interim in order to ameliorate the situation. Consequently, the CPT calls upon the Ukrainian authorities to take, without further delay, the following steps already identified in its two previous reports:
- ensure that all persons detained in ITTs are:
supplied with essential personal hygiene products and have the opportunity to wash every day;
able to take a warm shower on arrival and at least once a week during their period of detention;
given the necessary products to keep their cells clean and hygienic;
authorised to receive parcels from the very outset of their detention.
- ensure that detained persons, in all ITTs, are provided with reading matter (if the establishment does not have a library, detained persons should be authorised to receive newspapers or books from relatives);
- review the regulations and practice concerning detainees’ contact with the outside world.”
The relevant parts of the report read:
“b. Militia central holding facilities (ITTs)
...
40. The follow-up visit to the ITT in Kyiv revealed certain improvements: the establishment was not overcrowded (100 detainees for 156 places); the third floor had been properly renovated and all the detainees on that floor had a bed; the ventilation system on the second floor had been improved. In addition, there were now two exercise areas. However, there were numerous allegations that access to those areas was limited to ten minutes or so. Mattresses and blankets (although dirty) were available. That said, the cell windows were still hidden by shutters and the other detention floors remained in a state of severe dilapidation (cf., inter alia, paragraph 48 of the report on the 2000 visit).
41. As regards the other ITTs visited, the CPT would stress that the best material conditions observed were in the Uzhgorod facility. The cells were well-lit, in part by natural light, clean, correctly equipped (bed, mattress, blankets, table, bench) and spacious (between 11 and 25 m²). There was, however, one important deficiency, namely the absence of an outdoor exercise yard.
Elsewhere, material conditions were very mediocre. In reality, the descriptions in the previous reports still very much apply. While some efforts had been made by the authorities shortly before the CPT’s visit, such as repainting cells or ensuring that mattresses and blankets were provided (as in Zhytomyr or Odessa, for example), the cells still had no access to natural light, the artificial lighting was often of poor quality and the ventilation deficient. The toilets in the cells were not properly partitioned off, if at all, and the sinks were in a bad state of repair. As in the past, access to hygiene products was dependent on parcels received by the detained persons and there were no arrangements enabling them to maintain adequate personal hygiene.
The situation was variable where food was concerned: in some ITTs, three daily meals were provided, whereas in others there were two or even just one per day.
...
43. In addition, there was rampant overcrowding: for example, an analysis of the detention registers revealed that the Mukachevo ITT, with an official capacity of 28 places, regularly held up to 42 persons, and the Khust facility, with a capacity of 22 places, held up to 35.
...
45. ...it further recommends that steps be taken to ensure:
- without delay that, in those ITTs already possessing outdoor exercise areas, detained persons actually have access to them for one hour each day;
- without delay that, in all ITTs, detained persons are supplied with a full set of clean bedding, which is cleaned at regular intervals;
- without delay that, in all ITTs, detained persons are provided with essential personal hygiene products and are able to wash every day (this includes a hot shower once a week, throughout their detention);
- without delay that, in all ITTs, detained persons are given food at appropriate times;
- the proper and progressive partitioning off of toilets in cells;
- that detained persons, in all ITTs, have access to reading matter;
- that the official occupancy level of ITT facilities is not exceeded and that efforts are made gradually to reduce them; the objective should be to offer living space of at least 4 m² per person.”
VIOLATED_ARTICLES: 13
3
5
6
8
VIOLATED_PARAGRAPHS: 5-4
6-1
6-3
8-1
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 13
3
5
6
8
NON_VIOLATED_PARAGRAPHS: 5-3
6-1
6-3
8-1
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-107660
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: FRANK GMBH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant company, Frank GmbH, is a limited liability company under German law with its seat in Koblenz, Germany. Mr Stefan Frank, a German national who was born in 1964 and lives in Koblenz, is its managing director. The applicant company is represented before the Court by Mr I. Fromm, a lawyer practising in Koblenz.
The facts of the case, as submitted by the applicant company, may be summarised as follows.
On 22 August 2005 the applicant company was approached by the Kassel Regional Government (Regierungspräsidium) and asked to specify who had been driving a lorry owned by the applicant company on motorway no. 3 at 4.02 a.m. on 11 August 2005. There was a standard notice printed on the form which read: “Please indicate the name and address of the person responsible for the offence, by doing so you will avoid further investigations”. The applicant company indicated the full name and address of the driver J.S.
On 17 October 2005 the Kassel Regional Government accused J.S. of having exceeded the maximum speed limit by 44 km/h at the named date and time while driving a lorry registered to the applicant company; it imposed a fine of 150 euros (EUR) on him for a speeding offence and suspended his driving licence (Fahrverbot) for a month. J.S. objected to the fine, claiming that he had not been the driver of the vehicle at the relevant time.
On 26 October 2005 the applicant company refused to hand over to the police the tachograph (Tachoscheibe) that had been in use at the relevant time in the lorry at question.
On 8 November 2005 the Koblenz District Court issued a search warrant to search the applicant company’s business premises and if necessary its cars in order to seize the specific tachograph which had been in use in the lorry in question on 11 August 2005. In its reasoning the court mentioned that the tachograph was indispensable for clearly identifying the driver of the lorry.
On 11 November 2005 the police entered the office premises of the applicant company. The specific cabinet where the tachographs were stored was searched and the tachograph which was specified in the search warrant was seized.
The applicant company and J.S. appealed against the search and seizure warrant after the seizure took place. The applicant company argued that the search warrant had not been proportionate, as the company was not suspected of any infringement or regulatory offence. What was at stake, a fine of 150 EUR and a temporary suspension of the driving licence for one month, did not justify a search warrant for the premises of third persons. Besides, the search warrant had not been necessary, as the applicant company had previously specified the driver’s name and address.
On 12 December 2005 the Koblenz Regional Court dismissed the appeal. Whereas the appeal by J.S. was not admitted for lack of standing, the appeal by the applicant company was considered on the merits. The Court acknowledged that the search order by its nature had infringed the right to respect for the company’s domicile, which was an acknowledged right for legal persons also, even if to a lesser extent. However, the infringement had been justified as the search had served a legitimate interest and had been proportionate to the aim pursued. The court pointed out that the proportionality of a search warrant concerning a third person’s domicile had to be scrutinised even more intensively when only a regulatory offence was at stake and not a criminal one. Nevertheless, the legislator had not excluded searches and seizures for regulatory offences in general. Otherwise, the identity of a driver suspected of a traffic offence would often remain unclear and the offence could not be prosecuted. There was a legitimate public interest in controlling road traffic and prosecuting offenders, as this protected the general public against the dangers inherent in road traffic. In this particular case the search had been proportionate as the police had merely looked for the cabinet where the tachographs were kept and taken only the tachograph in question. The functioning of the company had not been disturbed, nor had this particular tachograph been in any way significant for the proper functioning of the business. The court further underlined that in the particular circumstances of this case a tachograph had been an undisputable way to identity the person who had committed the regulatory offence as there had been no other means for the prosecution to establish his or her identity. For these reasons, the seizure of the tachograph was declared proportional.
On 16 January 2006 the applicant company raised a constitutional complaint with the Federal Constitutional Court. It pointed out that, contrary to the assumption of the Koblenz Regional Court, there had been other ways to identify the driver in question. Firstly, the District Court could have requested a photograph of J.S. in order to compare it with a radar photograph. Secondly, the applicant company could have identified its employee by the radar photo. In its legal reasoning the applicant company explicitly referred to the Court’s reasoning in Buck v. Germany, no. 41604/98, ECHR 2005IV. It further mentioned that the execution of the search and seizure warrant had had negative effects for the company’s public reputation.
On 4 September 2006 J.S. conceded that he had been driving the lorry and confessed to the traffic offence in a hearing before the Limburg District Court.
On 5 September 2007 a panel of three judges of the Federal Constitutional Court refused to admit the complaint. In its reasoning the Court mentioned that there was no appearance of arbitrariness or disproportionality in the prior court decisions, in particular the decision of the Koblenz Regional Court. It pointed out that the applicant company had in fact not fully cooperated with the investigating authorities as it had refused to hand over the tachograph voluntarily. The court added that the applicant company itself had mentioned in the proceedings before the Koblenz Regional Court that the identity of the driver who had committed the regulatory offence might not have been determined without the contested measures.
According to section 24 § 1 of the Road Traffic Act (Straßenverkehrsgesetz), a violation of a regulation of the Road Traffic Regulations (Straßenverkehrsordnung), is considered a regulatory offence (Ordnungswidrigkeit). Under regulation 39 § 1 traffic signs have to be complied with.
Regulatory offences are governed by the Act on Regulatory Offences (Ordnungswidrigkeitengesetz). According to its section 46 § 1, the provisions of ordinary law governing criminal procedure - in particular the Code of Criminal Procedure - are applicable by analogy to the procedure in respect of regulatory offences, subject to the exceptions laid down in the said Act.
Article 103 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate traces of an offence or to seize specific objects, provided always that there are facts to suggest that such person, traces or objects is or are to be found on the premises to be searched.