ITEMID: 001-101586
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SULTANOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (in case of extradition to Uzbekistan);Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in Uzbekistan in 1979. In March 2008 he left Uzbekistan and moved to Russia.
7. On 4 June 2008 the Main Investigations Department of the Uzbek Ministry of the Interior charged the applicant in absentia with organisation of a criminal group, attempts to overthrow the State's constitutional order and dissemination of the views of a radical extremist movement. The applicant's name was put on the wanted list.
8. On 5 June 2008 Namangan Criminal Court authorised the applicant's arrest.
9. On 9 July 2008 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant to Uzbekistan for prosecution.
10. On 18 September 2008 the Russian Prosecutor General's Office decided to extradite the applicant to Uzbekistan. The extradition order stated, inter alia, the following:
“... the Main Investigations Department of the Uzbek Ministry of the Interior is investigating a criminal case against N.N. Sultanov ...
The charges against N.N. Sultanov state that between 2000 and 2008, in the Namangan region of Uzbekistan, with the aim of overthrowing the State's constitutional order, he organised a criminal group... directed its units...actively participated in the criminal activities of the supporters of an extremist religious movement ... publicly called for the overthrow of the constitutional order of the Republic of Uzbekistan by carrying out “jihad” holy war and for the creation of an Islamic state ...
... The actions of N.N. Sultanov are punishable under Russian criminal law and correspond to part 1 of Article 210 (organisation of a criminal group), Article 278 (actions aimed at violent change of the constitutional order), part 1 of Article 280 (public calls for extremist activities) of the Russian Criminal Code; the penalties envisaged under those Articles exceed one year of deprivation of liberty. The limitation period for the above crimes under Russian and Uzbek law has not expired ...”
11. On 25 September 2008 the applicant was informed about the extradition order. According to him, he signed the documents certifying that he had been familiarised with the extradition order and refused to appeal against it without being aware of the contents of the document owing to his lack of Russian.
12. On 10 November 2008 the applicant's lawyer requested Moscow City Court to reinstate the statutory time-limits for the appeal procedure against the extradition order. On 20 November 2008 Moscow City Court refused the request. The applicant appealed, and on 9 February 2009 the Russian Supreme Court granted his request and reinstated the time-limits.
13. On 17 March 2009 Moscow City Court rejected the applicant's complaint against the extradition order and upheld his extradition to Uzbekistan.
14. On 19 March 2009 the applicant appealed against this decision to the Supreme Court of the Russian Federation.
15. On 20 March 2009 the European Court of Human Rights granted the applicant's request for application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan.
16. On 7 May 2009 the Supreme Court upheld the Moscow City Court decision and the extradition order became final. Referring to the applicant's complaints that he risked ill-treatment and torture in Uzbekistan, the court stated:
“... the [applicant's] references to human rights violations in Uzbekistan... are of a general nature and there is no objective information in the case file indicating that these methods [of ill-treatment] would be applied to N.N. Sultanov ...
... the initiator of the search provided certain guarantees in respect of N.N. Sultanov. Failure to comply with these guarantees would provide the authorities of the Russian Federation with grounds to refuse future extradition requests [from Uzbekistan] in respect of other persons ...”
17. On 17 June 2008 the applicant was detained at Perm-2 railway station.
18. On 18 June 2008 the Perm transport prosecutor's office decided to arrest the applicant in accordance with the decision of Namangan Criminal Court in Uzbekistan and placed him in pre-trial detention facility no. 1 in Perm (SIZO-1). The decision did not provide time-limits for the applicant's detention.
19. On 6 August 2008 the Perm transport prosecutor's office again issued a decision to place the applicant in custody pursuant to the extradition order de facto extending the applicant's initial arrest of 17 June 2008. The decision did not provide time-limits for the applicant's detention.
20. On 18 September 2008 the Russian Prosecutor General's Office decided to extradite the applicant to Uzbekistan.
21. On an unspecified date between August and November 2008 the applicant was transferred from Perm to detention facility no. IZ-77/4 in Moscow.
22. On 21 January 2009 the applicant complained about his detention to Babushkinskiy District Court in Moscow. The complaint was submitted to the administration of the detention facility for further transmission to the court on 26 January 2009 and registered with the number C-12. However, on 16 June 2009 Babushkinskiy District Court informed the applicant that they had not received this complaint.
23. On 24 June 2009 the applicant complained to Tverskoy District Court in Moscow that his detention pending extradition was unlawful. He stated firstly that he had been detained pending extradition for more than a year without any legal extension of the detention, secondly that he had not had any opportunity to challenge the lawfulness of his detention, in violation of Article 5 § 4 of the Convention, and thirdly that the provisions of Russian criminal procedure legislation concerning detention pending extradition did not meet the 'quality of law' standard prescribed by Article 5 § 1(f) of the Convention.
24. On 21 July 2009 Tverskoy District Court rejected the applicant's complaint, stating the following:
“... Chapter 13 of the Code of Criminal Procedure [concerning measures of restraint] regulates the procedure for the extension of pre-trial detention only in respect of those suspects and the accused against whom the Russian authorities have initiated criminal proceedings ...
The procedure concerning the imposition of the measure of restraint in respect of the applicant is regulated by Article 466 of the Code of Criminal Procedure, which does not provide for an extension of detention with a view to extradition.
At the same time it should be noted that the maximum term of detention of eighteen months, as prescribed by Article 109 of the Criminal Procedure Code ... has not been violated ...
Therefore, the court finds that the applicant's complaint is unsubstantiated and should be rejected ...”
25. The applicant appealed against this decision to Moscow City Court. On 7 October 2009 the latter upheld the decision of 21 July 2009 and left the applicant's complaint that his detention was unlawful unexamined.
26. The applicant further appealed to Moscow City Court through the supervisory review procedure. On 17 November 2009 his appeal was dismissed by the City Court as unsubstantiated.
27. On 8 December 2009 the applicant complained to the Prosecutor General's Office and the Moscow Prosecutor that his detention was unlawful and requested to be released. He stated that his detention had not been extended by domestic courts and that the application of the interim measures by the Court (see paragraph 15 above) could not serve as the basis for his continued detention.
28. On 8 December 2009 the applicant lodged a supervisory appeal with Moscow City Court concerning unlawfulness and excessive length of his detention. This appeal was dismissed on 9 February 2010.
29. On 21 December 2009 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired, but the applicant remained in detention.
30. On 23 April 2010 Babushkinskiy District Court rejected the prosecutor's request for the applicant's house arrest.
31. On 23 April 2010 the Babushkinskiy inter-district prosecutor's office ordered the applicant's release from detention. On 26 April 2010 the prosecutor's office ordered the applicant to sign an undertaking not to leave the area.
32. On 6 November 2008 the applicant lodged a request with the Moscow Department of the Federal Migration Service (the FSM) for refugee status in Russia. On 5 December 2008 he was interviewed in the detention facility by an officer of the FMS, in the presence of his lawyer.
33. On 11 March 2009 the FMS refused the applicant's request for refugee status, stating “... there are no substantiated concerns that he would become a victim of persecution in Uzbekistan”. The applicant appealed against this refusal to Zamoskvoretskiy District Court in Moscow.
34. On 2 June 2009 Zamoskvoretskiy District Court upheld the refusal, stating that the applicant had failed to provide sufficient evidence that he risked ill-treatment if extradited to Uzbekistan, and that he had applied for refugee status only after his arrest, which demonstrated that he was trying to avoid lawful criminal prosecution in Uzbekistan.
35. The applicant appealed to Moscow City Court. On 3 November 2009 the City Court dismissed the appeal as unsubstantiated and upheld the decision of 2 June 2009.
36. On 18 January 2010 the applicant lodged a request with the FSM for temporary asylum in Russia.
37. On 3 March 2010 the Russian Department of the UN High Commissioner for Refugees informed the FMS that the applicant's fear of politically motivated ill-treatment in Uzbekistan was well-founded and that he was eligible for international protection under their mandate.
38. On 12 April 2010 the FMS refused the applicant's request for temporary asylum and informed the applicant about it on 16 April 2010 without providing a copy of this decision.
39. On 30 April 2010 the applicant appealed against this refusal to the Russian FMS. The proceedings are pending.
40. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
41. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within eighteen days of arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed forty days from the date of that arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
42. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2).
43. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent. A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61).
44. A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
45. Chapter 13 of the Russian Code of Criminal Procedure (“Preventive measures”) governs the use of preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period to six months (Article 109 § 2). Further extensions to twelve months, or in exceptional circumstances eighteen months, may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).
46. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The court must examine the complaint within five days of its receipt.
47. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)).
48. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6).
49. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article 258 § 1).
“Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... once six months has passed since the case was sent to it, extend a defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending a defendant's detention once the previously authorised timelimit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution ...”
51. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established 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.
52. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms laid down in Chapter 13 of the CCP on preventive measures, 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 abiding by the procedure established in the CCP, or in excess of the time-limits fixed therein.
53. 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 the aim of extradition.
54. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits on the keeping of a person in custody with the aim of extradition. That was a matter for the courts of general jurisdiction.
55. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.
56. In this ruling the Supreme Court reiterated that the arrest and detention of a person with the aim of extraditing him or her under Article 466 of the CCP should comply with the requirements of Article 108 of the CCP, and that detention pending extradition could be extended only in compliance with the requirements of Article 109 of the CCP.
57. UN General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148)) reads as follows:
“The General Assembly ...
12. Urges States not to expel, return (refouler), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement ...”
58. In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions:
“51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return.
52. The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognised as refugees.”
59. Specifically referring to the situation regarding torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006:
“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.”
60. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008:
“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...”
61. The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows:
22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases.
23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling
'... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.'
24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and non-derogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that:
'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'”
62. United States Department of State, 2009 Country Reports on Human Rights Practices – Uzbekistan, 11 March 2010.
“... Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Prisoners were subjected to extreme temperatures. Observers reported several cases of medical abuse, and one known person remained in forced psychiatric treatment.
...
Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities.
There were reports of politically motivated medical abuse. Victims could request through legal counsel that their cases be reviewed by an expert medical board. In practice, however, such bodies generally supported the decisions of law enforcement authorities.
...
Prison and Detention Center Conditions
Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Family members frequently reported that officials stole food and medicine that were intended for prisoners.
There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.”
63. The European Committee for the Prevention of Torture (“the CPT”), in its 15th General Report of 22 September 2005 on its activities covering the period from 1 August 2004 to 31 July 2005, expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture:
“38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment.
39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case?
40. In response, it has been argued that mechanisms can be devised for the post-return monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.”
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-58063
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF MATOS E SILVA, LDA., AND OTHERS v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection joined to merits (ratione materiae);Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (ratione materiae);No violation of Art. 13 (access);No violation of Art. 6-1 (access);Violation of Art. 6-1 (length);Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 9. The first applicant, Matos e Silva, Lda. ("Matos e Silva"), is a private limited company entered in the companies’ register at Loulé (Portugal). It, alone among the applicants, was a party to the domestic proceedings (see paragraphs 13 to 45 below). The second and third applicants, Mrs Maria Sofia Machado Perry Vidal and Teodósio dos Santos Gomes, Lda., another company, are the only shareholders in and owners of Matos e Silva. The second applicant manages both companies.
10. Matos e Silva works land in the municipality of Loulé. It cultivates the land, extracts salt and breeds fish.
11. It owns part of this land, having bought the parcels in question on different occasions.
The remainder was worked under a concession granted under a royal decree of 21 July 1884 to Basilio de Castelbranco. Article 2 of the decree provided that the parcels of land over which the concession had been granted could be expropriated without any right to compensation for the grantees. In 1886 Basilio de Castelbranco assigned the concession to the Compagnia Exploradora de Terrenos Salgados do Algarve. When that company was wound up, some of its former shareholders purchased the concession. They formed the Matos e Silva company whose object was in particular to purchase and work part of the salt marshes which were the subject matter of the concession. On 12 August 1899 that company executed a sale and purchase agreement before a notary in respect of those parcels of land. On 16 September 1899 it had the agreement recorded in the Loulé land register in the following terms: "1899 - 16 September ... The transfer of the usable area of the third glebe of the Ludo parcel [prazo] ... together with the parcels of land known as Ludo and Marchil ... is registered in favour of the Matos e Silva company ..., which purchased them ... for a total price of 79,500 $ 000 reis [sic] ..." Since then, Matos e Silva has acted in respect of that land uti dominus, paying the taxes and duties provided for by Portuguese legislation on land ownership.
12. On 2 May 1978, by Decree no. 45/78, the Portuguese Government created a nature reserve for animals (Reserva Natural da Ria Formosa) on the Algarve coast (municipalities of Loulé, Olhão and Faro), including the parcels of Matos e Silva’s land known as "Herdade do Muro do Ludo", or "Quinta do Ludo" or again "Herdade do Ludo". The Government took various measures in connection with this scheme, including the five contested by the applicants.
13. By Legislative Decree no. 121/83 of 1 March 1983 the Government declared that half of Matos e Silva’s land was needed for public purposes. This public-interest declaration was a preliminary to expropriating the land with a view to building an aquacultural research station on it.
14. On 18 April 1983 Matos e Silva challenged this administrative decision in the Administrative Proceedings Division of the Supreme Administrative Court. The appeal - lodged with the Prime Minister’s office in accordance with Article 2 of Legislative Decree no. 256-A/77, which was applicable at the time (see paragraph 49 below) - was forwarded to the Supreme Administrative Court on 9 May.
15. On 17 April 1985, after an exchange of pleadings, Matos e Silva, relying on Article 9 para. 2 of the Expropriations Code (see paragraph 47 below), made an application to discontinue the proceedings on the ground that they had become devoid of purpose in view of the fact that the public-interest declaration in Legislative Decree no. 121/83 was no longer valid.
It renewed this application on 21 May 1986, 20 July 1987 and 19 April 1988.
16. On 6 May 1988 the Supreme Administrative Court decided not to rule on the validity of the declaration before examining the application which had in the meantime been lodged by Matos e Silva against Legislative Decree no. 173/84 and was under consideration in the Prime Minister’s office (see paragraph 32 below).
Accordingly, the Supreme Administrative Court requested the Prime Minister to send it the application instituting the proceedings (petição do recurso). No reply was forthcoming to its reminders of 11 May 1988, 23 September 1988 and 13 December 1988.
17. On 16 May 1989 State Counsel applied for a stay of the proceedings until the application for an order quashing Legislative Decree no. 173/84 had been determined. Matos e Silva opposed the application for a stay and renewed its application to discontinue the proceedings.
18. In a decision of 28 September 1989 the Supreme Administrative Court decided to stay the proceedings and dismissed the company’s application. It held that Article 9 para. 2 of the Expropriations Code was not applicable to the case before it because Legislative Decree no. 173/84 had suspended the effect of the public-interest declaration contained in Legislative Decree no. 121/83. A measure which had no existence in the legal order could not lapse. Moreover, it was necessary to await the outcome of the application against Legislative Decree no. 173/84. In any event, the public-interest declaration contained in Legislative Decree no. 121/83 could be revived if Legislative Decree no. 173/84 were to be quashed.
19. On 8 February 1990 Matos e Silva appealed against that decision to a full court of the Administrative Proceedings Division of the Supreme Administrative Court. That appeal was dismissed in a judgment of 17 October 1992. On 1 April 1993, arguing that there had been conflicting decisions on the same point of law, the company appealed against the Supreme Administrative Court’s ruling. However, on 23 April 1993 the reporting judge declared the appeal inadmissible. The company filed an objection to that decision, but to no avail.
20. The proceedings are still pending.
21. In a joint order of the Prime Minister and the Ministers of Finance and for the Environment (Qualidade de Vida) of 4 August 1983, the Government made a public-interest declaration with a view to the expropriation of the other half of Matos e Silva’s land in order to set up a single nature reserve for the protection of migrant birds and other important species. The order authorised "the immediate taking of possession" of the land by the State.
22. On 15 November 1983 Matos e Silva appealed against that order. The Supreme Administrative Court registered the appeal on 20 December, the Prime Minister’s office having forwarded it on 15 December 1983 (see paragraph 49 below).
23. On 9 October 1985 Matos e Silva made an application to discontinue the proceedings identical to the one it had lodged in the earlier proceedings (see paragraph 15 above). It renewed its request on 7 July 1986 and 15 June 1989, but without success.
24. The Supreme Administrative Court again held that it could not rule on the appeal before examining the application which had in the meantime been lodged against Legislative Decree no. 173/84 (see paragraph 16 above and paragraph 32 below) and was under consideration in the Prime Minister’s office.
With a view to obtaining the application instituting those proceedings, the court issued eight orders to the Prime Minister between 23 April 1987 and 26 January 1989, but they were not complied with.
On 18 May 1989 the Prime Minister responded to a ninth order issued on 24 April 1989. He informed the court that the original of the application instituting the proceedings had disappeared and that he had only a copy. No documents were enclosed with his letter.
25. On 10 July 1989 Matos e Silva itself produced to the Supreme Administrative Court a copy of the application in question.
26. On 3 December 1989 State Counsel asked the court to stay the proceedings on the same grounds as those given in his application in relation to the previous appeal (see paragraph 17 above).
27. On 3 April 1990 the court delivered a judgment staying the proceedings for reasons identical to those set out in its judgment of 28 September 1989 (see paragraph 18 above).
On 24 April 1990 Matos e Silva appealed against that decision to a full court of the Administrative Proceedings Division of the Supreme Administrative Court, which dismissed the appeal by a decision of 17 June 1993.
28. The proceedings are still pending.
29. By Legislative Decree no. 173/84 of 24 May 1984 and "with a view to carrying out works in the public interest, and more particularly to creating a single reserve...", the Government "withdrew the concession to work all the parcels of land referred to in Article 1 [of the decree of 21 July 1884]". The withdrawal "[was] to be effected in the manner in which expropriation [was permitted] by the [1884 decree]" (see paragraph 11 above). Under Articles 3 and 4 of Legislative Decree no. 173/84, the State was to take immediate possession of the land without any formalities or compensation except that payable for necessary and useful improvements made to the property.
30. Matos e Silva then made an application to the Government on 25 June 1984 requesting them to reconsider their decision; the outcome of that application is not known.
31. At the same time, the company applied to the Administrative Proceedings Division of the Supreme Administrative Court for the effects (eficacia) of Decree no. 173/84 to be suspended. By a decision of 18 July 1985, which was upheld by a full court, the court granted the application and decided to suspend the effects of the decree in question pending a decision on the merits.
32. On 9 July 1984 Matos e Silva applied to the same court for an order quashing the decree. This application was submitted to the Prime Minister’s office (see paragraph 49 below).
The company relied on the following grounds, among others:
(a) there had still been no compensation for the two earlier expropriations;
(b) the reasons given by the Government on each occasion to justify the expropriations were different and inconsistent, a bird sanctuary and an aquacultural research station being incompatible with each other; and Legislative Decree no. 173/84 purported to create a single reserve on the land;
(c) the expropriation order was discriminatory in that it concerned almost exclusively Matos e Silva’s land and not other land in the same area and with the same conditions and characteristics belonging to other persons or companies.
33. The Prime Minister’s office decided to send the file to the Ministry of the Environment. The new Minister issued an order dated 9 August 1984 (see paragraph 53 below) setting up a committee entrusted with the task of making, within thirty-seven days, a proposal for, among other things, repealing Legislative Decree no. 173/84.
34. However, in October 1985, a new Government was formed and the proposed repeal came to nothing.
35. Having seen the Prime Minister’s letter of 18 May 1989 (see paragraph 24 above) and forwarded a copy of its application (see paragraph 25 above), Matos e Silva, in accordance with Articles 1074 et seq. of the Civil Code, requested reconstitution (reforma) of the administrative file. In an interlocutory decision of 18 October 1990 the reporting judge stated that the copy of the application instituting the proceedings had been communicated by the Government. When the company sought rectification of this statement, he accepted in a decision of 31 October 1991 that the application had in fact been submitted by the company. However, the administrative file was not reconstituted.
36. On 17 February 1992 Matos e Silva applied to discontinue the proceedings on the same grounds as those it had invoked in the proceedings concerning Legislative Decree no. 121/83 (see paragraph 15 above).
37. On 17 September 1992 the Supreme Administrative Court decided that it would not proceed until it had been sent the file relating to the administrative application (processo gracioso). To this end, on 26 January and 23 April 1993, it ordered the Government to send it the file in question.
The Government did so on 25 October 1993. However, the application instituting the proceedings was not on the file.
38. At the beginning of 1994 Matos e Silva filed a memorial and an opinion. On 8 March 1995 State Counsel made his final submissions in favour of quashing the contested measure. In an order of 26 April 1995 the reporting judge expressed the view that all the issues raised in the appeal were essentially dependent on whether the company was the owner of the land. In these circumstances the Supreme Administrative Court should stay the proceedings until the relevant civil court had ruled on ownership in separate proceedings. Consequently, pursuant to Article 4 of Legislative Decree no. 129/84 governing the administrative and tax courts (see paragraph 51 below), it was ordered that the proceedings be stayed.
On an appeal by the company, the First Division of the Supreme Administrative Court quashed that order on 19 December 1995 on the ground that the reporting judge did not have jurisdiction to make it. After itself considering the issue, the court stayed the proceedings to enable the company to commence proceedings in the civil courts, given that if the parties took no action for more than three months, the issue would be decided on the evidence in the file (see paragraph 50 below).
The company has appealed against that decision to a full court of the Supreme Administrative Court which has not, at the date of adoption of the present judgment, yet decided the appeal.
39. By Legislative Decree no. 373/87 of 9 December 1987 the Government created the Ria Formosa Nature Reserve on the Algarve and adopted rules for the protection of the area’s ecosystem. Among other things, these rules prohibited, in addition to all building, any change in the use of the land and the starting up of any new agricultural and fish-farming activities without permission.
40. On 8 February 1988 Matos e Silva challenged this decree in the Administrative Proceedings Division of the Supreme Administrative Court. It claimed that the rules governing the exercise of its right of property over its land that were contained in the decree were more restrictive than the restrictions affecting adjoining land. It pointed out in addition that the offending measure amounted to an expropriation in view of the number of restrictions imposed.
41. On 18 April 1994 the court decided to stay the proceedings pending a determination of the merits of the application for an order quashing Legislative Decree no. 173/84. The proceedings are therefore still pending.
42. By "regulatory" Decree no. 2/91 of 24 January 1991 the Government approved a "Plan for the organisation and regulation of the Ria Formosa Nature Reserve" (Plano de Ordenamento e Regulamento do Parque natural da Ria Formosa).
43. On 23 March 1991 Matos e Silva challenged this decree in the Administrative Proceedings Division of the Supreme Administrative Court. It alleged a violation of the principles of equality and proportionality and argued that the decree constituted a further expropriation measure.
44. Following an exchange of pleadings the court sought information on 7 April 1992 concerning the course of the proceedings in connection with Legislative Decree no. 173/84.
45. On 9 June 1993 the court stayed the proceedings on the grounds given above.
46. Article 62 of the Constitution provides:
"1. The right to private property and the right to transfer property inter vivos or by succession shall be guaranteed to everyone, in accordance with the Constitution.
2. Requisition and expropriation in the public interest may be effected only in accordance with law and subject to payment of fair compensation."
47. The 1976 Expropriations Code, as it applied at the material time, contained the following provisions:
"Real property and the rights relating to it may be expropriated on public-interest grounds in so far as such grounds fall within the competence of the expropriating authority, subject to payment of fair compensation."
"A public-interest declaration shall lapse if the property has not been acquired within a period of two years or if no arbitration board has been set up within that same period."
"Expropriation of a property or right on public-interest grounds shall confer on the expropriated person the right to receive fair compensation."
48. Articles 1 and 22 para. 1 of the 1991 Expropriations Code, which is currently applicable, provide as follows:
"Real property and the rights relating to it may be expropriated on public-interest grounds in so far as such grounds fall within the competence of the expropriating authority, subject to immediate payment of fair compensation."
"Expropriation of any property or right on public-interest grounds shall entitle the expropriated person to immediate payment of fair compensation."
49. Article 2 of Legislative Decree no. 256-A/77 of 17 June 1977 provided as follows:
"1. Administrative decisions which are final and enforceable may be challenged by means of an application for judicial review, which shall be made to the competent court and lodged with the authority that took the decision in question.
2. The administrative authority may, within a period of thirty days, revoke or confirm the impugned decision in whole or in part.
3. In any event, the administrative authority shall, within the same period, forward the administrative file containing the relevant documents to the appropriate court or tribunal.
4. If there is no production, the applicant may ask the court to take possession of the file and documents concerning the applicant so that the proceedings may continue.
5. ..."
50. This provision was amended by Legislative Decree no. 267/85 of 16 July 1985, which contains the following relevant Articles:
"Where either party fails, for more than three months, to make, or diligently pursue an application on a preliminary issue then the main proceedings shall continue and the preliminary issue shall be decided on the basis of such evidence as is admissible in those proceedings. The effects of such a decision shall be confined solely to the proceedings in question."
"1. Where, without good cause, evidence relevant to the determination of the case is not produced, the court may order any appropriate measures, including the one provided for in Article 4 of Legislative Decree no. 227/77 of 31 May, and shall issue an injunction to the administrative authority in question, in accordance with Article 84.
2. Where the administrative authority again fails to comply, the court may draw such inferences from that conduct as it thinks fit."
"1. In its decision the court shall stipulate the time within which the injunction is to be obeyed.
2. Refusal to comply with the injunction shall give rise to civil, disciplinary and criminal liability in accordance with Article 11 of Legislative Decree no. 256-A/77 of 17 June."
51. Article 4 para. 2 of Legislative Decree no. 129/84 of 27 April 1984 governing administrative and tax courts is worded as follows:
"Where a decision on the merits of the action or appeal turns on the determination of an issue within the jurisdiction of other courts, the tribunal may defer judgment until the relevant court has given its ruling; the consequences of a failure by the interested parties to make or diligently pursue the proceedings concerning the preliminary issue shall be laid down in procedural provisions."
52. Article 4 of Legislative Decree no. 227/77 of 31 May 1977 provides:
"1. Where, without justification, the case file relating to an administrative application [processo gracioso], or any other evidence requested by a court in order to assist its examination of an appeal, is not produced within a period of thirty days the reporting judge shall forward the appeal to State Counsel’s office, in order that the latter may make its submissions within thirty days, failing which the penalties set out in the following paragraph shall apply.
2. Where a period of thirty days has elapsed following submission of the opinion of State Counsel’s office, as provided for in paragraph 1, and the documents requested have, without good cause, not been produced, the proceedings shall resume and the court may draw such inferences from the conduct of the authority in question as it sees fit."
53. Order no. 77/84 of 9 August 1984 issued by the Ministry of the Environment is worded as follows:
"1. Taking note of Legislative Decree no. 173/84 of 24 May, which concerns all the land that is the subject of a royal concession granted by Government Decree no. 165 of 21 July 1884, without any restriction or discrimination in respect of such land;
2. Observing that much of this land, amounting to several thousand hectares, is now private property which has nothing to do with the aims of protecting the environment and natural resources which it is said will be achieved by withdrawing the concession, thereby entailing a flood of potential lawsuits and payment by the State of huge amounts of compensation;
3. Observing that the statutory provision refers expressly to the "Herdade do Ludo" or, in other words, "Herdade do Muro do Ludo", which represents only a small part of the land covered by the royal concession of 1884;
4. Observing likewise that even the "Herdade do Muro do Ludo" is only partly of special interest from the point of view of protecting bird life;
5. Decides to set up a committee ... to make a proposal concerning:
(i) the repeal of Legislative Decree no. 173/84 and any other legislation on this subject;
(ii) the tabling of a draft of a new legislative decree intended to transfer to the State as part of the national heritage all the land which, being part of the estate designated as "Herdade do Ludo" or outside it, is of value for the bird life which it is sought to protect by means of establishing a sanctuary;
(iii) compensation or a fair method for calculating such compensation based on the improvements [benfeitorias] made to the land to be transferred to the State;
(iv) the final regularisation of the land in private hands [dominio particular] which is of no value for the sanctuary and was covered by the royal concession of 1884.
6. The committee thus appointed is to carry out its task before 15 September 1984; however, the proposal for the repeal of Legislative Decree no. 173/84, duly reasoned, shall be submitted to the Ministry of the Environment by 21 August so as to be put on the agenda of the next meeting of the Cabinet and shall contain any provisions that may be necessary to make clear that the State remains interested in the sanctuary and is determined to transfer as part of the national heritage the land to be incorporated in it."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22296
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: HOLDING AND BARNES PLC v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Holding And Barnes Plc, is public limited company incorporated in 1964 and with a registered office in Canvey Island, Essex. It is represented before the Court by Mr T. Pittas, a solicitor practising in London.
The facts of the case, as submitted on behalf of the applicant, may be summarised as follows.
The applicant company is involved in the storage and sale of damaged vehicles. It applied for planning permission to relocate part of its business. On 2 May 2000 the local authority resolved that it was minded to grant planning permission. However, on 25 July 2000 the Secretary of State for the Environment wrote to the Council requesting it to direct the application to him under Section 77 of the Town and Country Planning Act 1990 (see below).
The Secretary of State considered that he should exercise his power to “call-in” the applicant’s application because of the nature of the proposed use, the impact it could have on the future economic prosperity of the region, and the proposed site’s location next to hazardous gas storage installations.
The applicant challenged the Secretary of State’s power to “call-in” the application as a breach of Article 6 § 1 of the Convention, and the case together with three others raising a similar issue was heard by the Divisional Court on 13 December 2000, which found in favour of the applicants. The Secretary of State appealed to the House of Lords which held, on 9 May 2001, that there had been no breach of Article 6 § 1. Reversing the decision of the Divisional Court, the House of Lords held that, although the Secretary of State was not himself an independent and impartial tribunal when dealing with called in or recovered matters, the crucial question under Article 6 of the Convention was whether there was sufficient judicial control to ensure determination by such a tribunal subsequently. The jurisprudence of the European Court of Human Rights (in particular, the judgment of the Court in Bryan v. the United Kingdom: see below) did not require such control to constitute a rehearing on an application by an appeal on the merits. What was required was that there should be a sufficient review by a court satisfying the requirements of independence and impartiality of the legality of the decisions and the procedures followed. The judicial review jurisdiction of the High Court constituted such a review (R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929).
Following the House of Lords’ decision the applicant was forced to abandon part of its relocation plans and substantially to amend its request for planning permission. The Secretary of State granted the amended application on 6 December 2001.
Under English law, most applications for planning permission are determined by elected local authorities, with the possibility of appeal to an inspector appointed by the Secretary of State for the Environment. However, under section 77 of the Town and Country Planning Act 1990 (“the 1990 Act”), the Secretary of State has a power to “call-in” planning applications for his own determination. The Secretary of State has a number of other roles in the field of planning, including the development of policy and the provision of guidance to be taken into account by others determining planning applications and the control of development plans for all areas of the country.
The Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999, contained in Circular 07/99, contain guidance on the call-in of applications. Paragraph 2 of the Circular advises that the Secretary of State will “maintain his policy of, in general, only calling in for his own determination those applications which raise planning issues of more than local importance”.
Under section 77(5) of the 1990 Act, before determining a “called-in” application, at the request of either the applicant or the local authority, the Secretary of State must appoint an inspector to hear oral submissions from both parties. The parties are allowed to call and cross-examine witnesses at these hearings (Town and Country Planning (Inquiries Procedure) (England) Rules 2000: “the 2000 Rules”). Following such a hearing, the inspector will prepare a report in which he or she sets out his or her conclusions and recommendations. If the Secretary of State is inclined to reach a different conclusion because he or she differs from the inspector on any material question of fact or takes into consideration new evidence or new facts, the parties are entitled to be informed before the Secretary of State makes a decision, and must be given the opportunity to make written representations or ask for the inquiry to be reopened to assess the new evidence (2000 Rules, rule 17).
The 1990 Act provides in section 288 for judicial review of an order made by the Secretary of State following the call-in procedure:
(1) If any person -
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds -
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds -
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section.”
In the House of Lords’ judgment in the present case, Lord Slynn of Hadley described the scope of judicial review under the 1990 Act as follows:
“It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.”
Lord Slynn continued that he was further of the view that the court had jurisdiction to quash the Secretary of State’s decision for a misunderstanding or ignorance of an established and relevant fact (§§ 50 and 53 of the judgment; and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169).


ITEMID: 001-88681
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ANATOLIY VLADIMIROVICH ZAKHAROV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 4. The applicant was born in 1939 and lives in Okha, a town in the Sakhalin Region.
5. The applicant owned a flat in a decrepit house. The local council decided to demolish the house, and on 27 June 2000 the applicant sued the council for a replacement flat.
6. On 28 October 2003 the Okha Town Court ordered the council to provide the applicant with a flat in Okha of the same quality as his demolished flat. This judgment became binding on 24 February 2004 but was never enforced.
7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-67720
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GELFMANN v. FRANCE
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3
TEXT: 4. The applicant was born in 1953 and is currently in Poissy Prison after periods in other prisons, including Fresnes. He is suffering from Aids, which he says he contracted in 1985, approximately nine years before he was sent to prison.
5. On 8 October 1994 a warrant was issued for the applicant's arrest in connection with a number of serious offences. On 26 June 1996 the Alpes Maritimes Assize Court convicted him of murder, attempt, armed robbery, and the false imprisonment and kidnapping of minors aged under fifteen and of adults. It sentenced him to twenty-one years' imprisonment, of which a minimum of fourteen years were to be served. On 3 March 1998 he received an eighteen-month sentence from the Albertville Criminal Court for attempted escape from lawful custody and assault. On 7 May 1998 the Savoie Assize Court convicted him of false imprisonment followed by mutilation, murder and attempted armed robbery. It sentenced him to twenty-two years' imprisonment, with a minimum of fourteen years and eight months to be served.
6. On 19 November 2002 the Investigation Division of the Chambéry Court of Appeal ordered that the sentences imposed by the two Assize Courts should run concurrently in part, with the overall sentence not to exceed the statutory maximum of thirty years. The minimum period to be served was increased to twenty years. The applicant will now become eligible for parole on 28 September 2023.
7. He has been held in various prisons. At the time his application was lodged, he had been in Fresnes Prison since April 2003.
8. In September 2003 it was decided to transfer him to Poissy Prison on the grounds that: “This transfer will enable family ties to be maintained with his partner, as the prisoner's condition appears to warrant”.
9. According to information supplied by the Government, the applicant lodged an application for a pardon on medical grounds on 1 February 2001 with the support of an association called Act Up. The Ministry of Justice asked the Principal Public Prosecutor at Reims Court of Appeal to appoint a medical expert to report on the applicant's condition and life expectancy, and to advise whether his condition and current or foreseeable treatment were compatible with his detention in prison or in a special facility.
10. The Government stated that the application was turned down on 21 November 2001, after the applicant had refused to agree to a medical examination or to allow the expert access to his records.
11. While in Clairvaux Prison the applicant made an initial application for his sentence to be suspended under Article 720-1-1 of the Code of Criminal Procedure, a provision that had only recently been introduced.
12. The judge responsible for the execution of sentences ordered a medical report advising, inter alia, on the applicant's condition, whether he was suffering from an illness that compromised his chances of survival and whether his condition was permanently incompatible with his continued detention.
13. The expert, Dr B., lodged his report on 2 December 2002. After stating that the applicant had refused to undergo an examination and that the report was based solely on the medical records, he noted that the infection had spread and that the applicant's condition had deteriorated, in particular because he had refused all treatment for a year. He added:
“His condition necessitates his total, unfailing commitment to take his medication regularly and to undergo regular biological tests to assess how he is responding to treatment and whether the illness has been stabilised. All opportunistic infection must be warded off. The promiscuous nature of the prison environment makes it a source of such infection. The current increase in the viral load means that the prognosis is very poor and, and unless the patient responds to treatment, things may deteriorate very rapidly.”
14. Dr B. also noted that mentally the applicant was opposed to and refused all medical treatment and regular monitoring. He said in conclusion:
“Mr Jean-François Gelfmann's chances (of survival) can be regarded as compromised. While it is neither possible, nor realistic, to predict the future, the following remarks may be made on the basis of the information in the medical records:
Despite having had no treatment for a year and the increase in his viral load, Mr Gelfmann has not had any major life-threatening problems of infection requiring highly specialised care in a special facility.
The treatment Mr Jean-François Gelfmann is required to take is oral, simple and can be administered in a prison environment. Monitoring is the responsibility of a medical team that is aware of the problem and composed of prison doctors and specialists in infectious diseases of the highest order.
No one can safely predict what Mr Jean-François Gelfmann's attitude will be and whether he will agree to treatment in a particular environment.
Although I have not been able to examine Mr Gelfmann, having read the voluminous file and last year's medical records and having questioned prison staff, I consider that his condition is currently compatible with continued detention. It will always be possible, if he so wishes and if his symptoms worsen, for him to be re-examined at a later date, at which point the opinion of a psychiatrist should also be sought.”
15. Following his transfer to Fresnes Prison, the applicant made a fresh application to the Paris Regional Parole Court on 4 March 2003 for an order suspending his sentence.
16. In an order of 14 May 2003, the judge responsible for the execution of sentences requested medical reports from Dr F. and Dr S.
17. In his report of 28 May 2003, Dr F. noted:
“Mr Jean-François Gelfmann is carrying a serious disease: Aids. The diagnosis has been confirmed by the biological analyses (serology, viral and lymphocyte T4 count) and by the existence of other diseases, so called communal diseases, in association with HIV.
The disease was contracted long ago. Mr Jean-François Gelfmann himself says that it dates from 1985 and openly admits that he refused treatment until 1997.
The prognosis, whether in the short, medium or long-term, is grim. The specific treatment is onerous and can only be administered – with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure. This is the crux of the matter. In view of the seriousness of Mr Jean-François Gelfmann's condition and his disorders, which may be described as severe borderline syndrome, what is the solution? On one point, we entirely agree with the prisoner: he must be admitted to hospital for an assessment of the Aids position and its potential evolution and a check on the associated diseases: mycosis of the digestive tract, cutaneous mycosis, neuropathy and particularly tuberculosis. Although the tuberculosis appears to have been cured, in the United States Aids patients with tuberculosis are kept in permanent quarantine, as the American specialists consider that they are unable to cure tuberculosis in Aids patients and that the risk of infection is too high. That concern needs to be addressed.
All things considered, Mr Jean-François Gelfmann is able to tolerate detention in prison provided he is kept under strict medical supervision.
Detention in a hospital would, however, be more compatible with his condition. Beyond the short term, that is to say the assessment of the potential evolution of the diseases, the question of compatibility will need to be reviewed, it being borne in mind that, since we are dealing with diseases that are severe, infectious and fatal, continued treatment outside the current setting would be risky.”
18. Dr F. said in conclusion:
“Jean-François Gelfmann is receiving treatment for a confirmed case of Aids. He has also been treated for tuberculosis. These diseases, related illnesses (mycosis, various infections, neuropathy) and severe psychopathy require assessment and his admission to hospital.
The treatment he is receiving in detention in Fresnes is entirely appropriate, compatibility with detention is reasonable under medical supervision, but it would be more coherent for him to be treated in hospital.”
19. In his report of 30 May 2003, Dr S. gave the following answers to questions he had been put by the judge:
“... 3/ Seriousness of the illness and prognosis
Mr Gelfmann has been infected by the Aids virus, category C3 under the Atlanta classification. He has had opportunistic complications that have been treated. He will shortly have been receiving treatment for five years, starting with a bitherapy which proved ineffective after six months followed by tritherapy, which was effective, but was suspended five months later in May 2000 owing to neurological complications.
A few months later he began quadritherapy in Troyes but stopped taking his medication for a period of a year and a half.
He resumed treatment in July 2002 following the reappearance of adenopathy and a genital infection, but this has produced no results as he has refused treatment since October 2002. Since his transfer to Fresnes, the situation has got worse and the level of T4 has decreased.
There is a risk of death in the short to medium term.
4/ Treatment required
The quadritherapy started four years ago is no longer effective. The patient is due to attend Fresnes Hospital for medical treatment which has become more onerous as a result of his poor general health. A more thorough examination is needed and can only be performed in a special facility. There is virtually no other treatment left to offer Mr Gelfmann against the Aids virus, beyond the detection and treatment of other opportunistic infections, in particular, of the digestive tract...
5/ Whether his condition is compatible with detention in prison or requires special treatment that is only available in hospital
Mr Gelfmann's condition is no longer compatible with detention in prison and requires treatment that is only available in hospital.
6/ Whether he is suffering from a disease that compromises his chances of survival
Yes, Mr Gelfmann is suffering from a disease that compromises his chances of survival in the short to medium term.
7/ Information and observations that may assist the court
If the position concerning the viral load and T4 continues to deteriorate, complications may develop (lymphoma, pneumopathy, toxoplasmosis, CMV infection or dementia). The hospital assessment will afford more detailed information on the evolution of the illness. Unforeseeable intercurrent lethal complication is possible.”
20. The judge also ordered a psychiatric report, which stated that the applicant was not suffering from a mental disorder amounting to insanity warranting psychiatric treatment, but had presented since childhood emotional imbalance marked by personality organisation with characteristic psychopathic traits which was not incompatible with continued detention. It was further noted that the applicant remained of dangerous criminal propensity and that, owing to his refusal to receive any psychotherapeutic treatment, there was no point in offering him such treatment in detention or making it a condition of a suspended sentence, since his active participation was the only guarantee of possible success.
21. The Paris Regional Parole Court met on 25 June 2003. In a judgment delivered that same day, it ordered the applicant's sentence to be suspended on the grounds that it had been established by two concurring expert reports that he was suffering from a disease that compromised his chances of survival and was thus eligible for a suspended sentence.
22. The Principal Public Prosecutor's Office appealed against that judgment, which the National Parole Court quashed on 18 July 2003 for the following reasons:
“... a medical report dated 28 May 2003 shows that the treatment for the diseases from which Mr Gelfmann is suffering is onerous and can only be administered '– with difficulty because the prisoner is uncooperative – in custody or in a relatively restrictive structure'. The practitioner adds: 'This is the crux of the matter' and that detention remains 'compatible with his condition'. Another medical expert, in a report lodged on 2 December 2002, states that the treatment which Mr Gelfmann must take is 'simple and can be administered in a prison environment'.
Lastly, the impugned decision notes that a psychiatric expert has stated that Jean-François Gelfmann 'remains of' dangerous criminal propensity and that his 'active participation' in the treatment is the only guarantee of possible success, 'in view of the way his personality is structured'.
In these circumstances, it does not appear appropriate to suspend the sentence and the impugned decision must be reversed.”
23. In a letter of 23 July 2003, the applicant's lawyer was advised by a member of the Conseil d'État and Court of Cassation Bar whom he had contacted that, by virtue of Article 720-1-1 of the Code of Criminal Procedure, no appeal lay against a decision of the National Parole Court, unless it could be shown that it had acted in excess of its authority, which did not appear to be the position in the applicant's case.
24. Legislation introduced on 18 January 1994 transferred responsibility for treating prisoners to the public hospital service. Medical treatment for prisoners is thus provided by medical structures within the prisons (consultation and outpatient care units) directly affiliated to the local public hospitals that are to be found in the vicinity of each prison (Article D. 368 of the Code of Criminal Procedure).
25. A prisoner's state of health may be taken into account in deciding whether he or she should receive a pardon from the French President (Articles 17 and 19 of the Constitution) or be granted parole under Article 729 of the Code of Criminal Procedure.
26. Further, the Rights of Patients and Quality of the Health Service Act of 4 March 2002 inserted a new Article 720-1-1 into the Code of Criminal Procedure which enables an application to be made for suspension of sentence on medical grounds.
27. An Act of 15 June 2000 brought issues relating to parole within the sole jurisdiction of the ordinary courts and, in particular, the judge responsible for the execution of sentences. It also created two new bodies, the Regional Parole Courts and the National Parole Court.
28. The relevant provisions of the Code of Criminal Procedure now provide:
“Irrespective of the type of sentence or the length of sentence still to be served, suspension [of sentence] may also be ordered, for a period that not need be specified, for convicted persons who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention, other than persons in respect of whom a hospital order has been made owing to mental disorder.
Suspension may be ordered only if two medical experts state in separate, concurring reports that the convicted person comes within one of the categories referred to in the preceding sub-paragraph.
The judge responsible for the execution of sentences shall have jurisdiction to suspend the sentence, in accordance with the procedure set out in Article 722, if the custodial sentence passed is for ten years or less or if, irrespective of the initial sentence, the period still to be served is three years or less.
In all other cases, the Regional Parole Court shall have jurisdiction to suspend the sentence, in accordance with the procedure set out in Article 722-1.
The judge responsible for the execution of sentences may at any time order medical reports on a convicted person whose sentence has been suspended under this Article and reinstate it if the conditions on which the sentence was suspended have not been complied with...”
The regional parole court shall have power to grant, adjourn, refuse or revoke measures relating to parole that are not within the jurisdiction of the judge responsible for the execution of sentences in a reasoned decision on an application by the convicted person or the principal public prosecutor, after consulting the Execution of Sentences Consultative Board.
A regional parole court shall be attached to each court of appeal and be composed of a divisional president or judge of the court of appeal, who shall preside, and two judges responsible for the execution of sentences within the jurisdiction of the court of appeal, including one from the court with jurisdiction for the prison in which the convicted person is being held if the decision concerns a grant or refusal of parole or an adjournment.
The functions of the public prosecutor shall be performed by the principal public prosecutor or one of his or her advocates-general or deputies and those of the registry by a registrar from the court of appeal.
The regional parole court shall give its ruling in a reasoned decision following an adversarial hearing in private at which it shall hear the submissions of the prosecution and the observations of the convicted person and, if applicable, his counsel.
The convicted person or the prosecution may appeal to the National Parole Court against a decision of the regional parole court within ten days after being notified of it. Such decisions shall be provisionally enforceable. However, an appeal by the principal public prosecutor within twenty-four hours after receiving notification shall operate to stay execution of the decision until the National Parole Court has given its ruling. The National Parole Court shall examine the case no later than two months after the appeal, failing which the appeal will be void.
The National Parole Court shall be composed of the President of the Court of Cassation or a judge of that court appointed as his or her representative, who shall preside, two judges from the seat of the court, a representative of the national association for the rehabilitation of convicted offenders and a representative of the national association for victim support. The functions of the prosecution shall be performed by the Principal Public Prosecutor at the Court of Cassation. The National Parole Court shall give its ruling in a reasoned decision against which there shall be no right of appeal whatsoever. The hearing shall be held and the decision given in private, after the court has heard the observations of the convicted person.
The arrangements for implementing this Article shall be determined by decree. The decree will specify where the adversarial hearing which the regional parole courts are required to hold will be held when it concerns convicted prisoners.”
The system has been changed by an Act of 9 March 2004 which came into force on 1 January 2005. Henceforth, the relevant decisions are to be taken by the judge responsible for the execution of sentences and a new court, the court responsible for the execution of sentences.
In a judgment of 12 February 2003 concerning the application of the aforementioned Article 720-1-1 (Papon, Gazette du Palais, 11-12 April 2003), the Court of Cassation stated:
“The principal public prosecutor argued that – in view of the seriousness and impact of a conviction for crimes against humanity – the court of appeal was not entitled to decide that Mr [Papon]'s age and condition made it unlikely that suspending his sentence would prejudice public order, without first examining whether there were external factors that needed to be taken into consideration. That argument must fail.
Article 720-1-1 sub-paragraph 1..., which enables a custodial sentence to be suspended for a period that not need be specified, irrespective of the type or length of sentence, in respect of convicted prisoners who are shown to be suffering from a disease that compromises their chances of survival or whose condition is permanently incompatible with continued detention, does not lay down any conditions as to the nature of the offences for which sentence has been passed or risk of prejudice to public order.”
29. According to figures published in an article in the Le Monde newspaper on 25 March 2004, 83 prisoners had had their sentences suspended since the entry into force of the Act of 4 March 2002: “In the year 2003, 63 applications for suspension of sentence were granted, 52 were refused and 49 were being examined. At the same time, there were 82 non-suicide related deaths in custody in 2003”.
30. The appendix to the Recommendation provides, inter alia:
“I. Prison Aspects
A. The general principles
...
14. Prisoners with terminal HIV disease should be granted early release, as far as possible, and given proper treatment outside the prison.”
Reference should also be made to Recommendation no. R (98) 7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-99090
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SHENOYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1971 and is serving a prison sentence in colony no. 18 in the Yamalo-Nenetskiy Region.
5. The applicant was arrested on 27 March 2003. He was suspected of unlawful possession of firearms and two robberies of local post offices, as well as robbery, triple murder and attempted murder of security officers transporting money. It appears that the applicant was informed of his procedural rights, including the privilege against self-incrimination. The investigator interviewed him in the presence of a lawyer; the applicant made admissions in relation to the above offences. A search was carried out of the applicant's garage and another location indicated by the applicant; certain evidence such as coins, guns and gun cartridges were seized. On 28 March 2003 one of the victims identified the applicant in a line-up procedure as the alleged perpetrator.
6. On 29 March 2003 the applicant was brought before a judge of the Oktyabrskiy District Court of Ulan-Ude. Having heard the parties, the district judge authorised the applicant's continued detention on account of the admissions, the identification of the applicant by one of the victims and the evidence seized. The judge excluded any less intrusive preventive measure on account of the number and gravity of the offences of which the applicant was suspected and the risk that he would reoffend or abscond.
7. The applicant's detention was examined again on 17 April 2003 and he was remanded in custody on the same grounds. The judge also referred to the applicant's personality and that he “had committed several criminal offences within a short period of time”. Lastly, the judge noted that the period asked for (more than two months) by the investigating authority was justified by the need to carry out specific investigative measures and to obtain ten expert reports.
8. According to an out-patient psychiatric report dated 26 May 2003, the applicant had symptoms of “an accentuated personality” prone to gambling; however, this condition was not considered as requiring treatment or entailing any legal consequences (see also paragraph 22 below).
9. At a remand hearing on 19 June 2003 the applicant chose to remain silent; his counsel made no comment on the prosecution's extension request. The judge extended the applicant's detention with reference to the number and gravity of the charges, and the risk that he would abscond or interfere with the course of the investigation.
10. The investigator applied for a further extension on 15 August 2003. The judge heard the applicant and his counsel, none of whom objected to the remand request, referring to their wish to continue the study of the case file. The judge granted the prosecutor's request, referring to the gravity of the charges and the risk that the applicant would abscond, reoffend or interfere with the course of the proceedings. A further detention order was issued on 17 September 2003. The applicant and his counsel raised no objection to the extension request.
11. On 14 October 2003 the criminal case against the applicant was listed for trial before the Supreme Court of the Buryatiya Republic (“the Regional Court”). The selection of a jury panel was carried out between 27 November and 9 December 2003. Between 11 December 2003 and 23 March 2004 the jury heard evidence and witnesses. On an unspecified date the applicant retracted statements that he had made previously. On 23 March 2004 the jury found the applicant guilty as charged.
12. On 13 April 2004 the Regional Court approved the applicant's detention for a further three months, referring to the gravity of the charges and the need to complete the trial.
13. On 20 April 2004 the trial judge sentenced the applicant to life imprisonment. Thereafter and until July 2004 the parties studied the trial record and submitted their objections to it.
14. The applicant appealed against the verdict, considering that the composition of the jury panel had been unlawful because the next of kin of some jurors had criminal records, which under the applicable legislation should have prevented those jurors from sitting on a panel.
15. In August 2004 the case was sent to the Supreme Court of Russia. Between October 2004 and February 2005 the applicant submitted further statements of appeal. After the applicant's unsuccessful attempts, in February 2005 the Supreme Court itself sought to obtain further particulars on the criminal records of jurors' next of kin.
16. On 8 June 2005 the Supreme Court set the verdict aside on account of irregularities in the jury selection procedure, including the above issue of next-of-kin convictions. However, the appeal court rejected the remaining points of appeal as unfounded. Lastly, it indicated without further reasons that “the preventive measure (detention) in respect of the applicant should be maintained”.
17. The retrial started on 17 August 2005. The Regional Court held a hearing and decided that “the applicant should remain in custody”. Subsequently, the Supreme Court held that there had been no need for the decision of 17 August 2005. Noting that the applicant did not challenge his detention, the Supreme Court stated that, in any event, the question of remand had already been determined in the decision of 8 June 2005.
18. In the meantime, on 7 September 2005, the Regional Court held a remand hearing. It appears that the applicant and his counsel made no comment on the prosecution's request, leaving the matter to the Court's discretion. The judge granted an extension with reference to the gravity of the charges and the risk that the applicant would abscond or interfere with the course of the proceedings.
19. Further extensions were issued on 7 December 2005, 22 February and 23 May 2006. On each occasion the Regional Court considered that the reasons referred to since the order of 29 March 2003 remained valid, namely, the risk that the applicant would abscond, reoffend or interfere with the course of the proceedings, supported by the gravity of the charges against the applicant.
20. On 22 February 2006 the trial judge ordered a further extension. He rejected the applicant's arguments that were based on the considerable length of detention, his permanent residence and the need to take care of an underage child. The judge stated that the length of detention was not a matter to be taken into account for the remand, and that the reasons for it were still valid. Another remand decision in similar terms was issued on 23 May 2006.
21. The jury selection procedure lasted from 27 March to 4 April 2006. On 27 June 2006 the jury returned a guilty verdict on all counts except for unlawful procurement and possession of gun cartridges.
22. On 13 October 2006 an in-patient psychiatric report was commissioned. Remand orders were issued on 28 August and 21 November 2006. The report was issued in February 2007.
23. On 21 February 2007 the Supreme Court held a remand hearing. The applicant did not attend because he had been admitted to a Moscow hospital for the in-patient forensic examination. However, he was represented at that hearing by counsel who consented to proceed without the applicant being present. The remand judge extended the applicant's detention indicating that “the applicant had been charged with and found guilty by a jury of particularly serious offences and risked a heavy sentence of imprisonment”. Thus, the judge concluded that the applicant would abscond if at large and would thus obstruct the proceedings.
24. On 22 May 2007 the trial judge upheld the jury verdict and sentenced the applicant to life imprisonment. As follows from the trial judgment, the applicant underwent an in-patient examination by psychiatrists who concluded that he had a serious addiction to gambling; that at the time of the offences he had been unable to fully comprehend the dangerousness of his actions; and that at the time of the psychiatrists' report he had needed no compulsory medical treatment (see also paragraphs 8 and 22 above). While accepting the report in evidence, the trial judge considered that the applicant was legally liable for the relevant offences.
25. On 14 June 2007 the Supreme Court upheld the extension order of 21 February 2007. It refused the applicant leave to be present at the appeal hearing or to participate in it by way of a video link.
26. On 27 February 2008 the Supreme Court examined the parties' appeals and ordered a retrial because one of the jurors had a mental illness, which under the applicable legislation prevented him from sitting as a juror. Referring to the gravity of the charges, the appeal court held that the applicant should remain in detention pending the retrial.
27. On 8 April 2008 the Regional Court extended the applicant's detention noting that the retrial was pending. It considered that there was a risk of the applicant fleeing justice on account of (i) the gravity of the criminal offences leading, if convicted, to long custodial sentences or life imprisonment; (ii) the fact that the applicant had been previously subject to criminal prosecution for unspecified offences. The judge also referred to the 2007 psychiatric report concluding that the applicant had a serious addiction to gambling which had led to changes in his social, family and professional behaviour and to his being prone to unlawful conduct. In addition to the above, the judge held as follows:
“On the facts of the case, including the nature of the offences (several robberies and murders)...related to the [the applicant's] passion for gambling, which in its turn led to the incurring of debts and misappropriation of property, the Court concludes that a less intrusive preventive measure would allow the applicant to resume his criminal activity and the damage caused to the public interest would manifestly exceed the damage related to the limitation inherent in the deprivation of liberty.
The Court has taken due account of the fact that [the applicant] has a permanent place of residence, provided positive accounts from his employer and has an underage child in his care.
This detention order is based on the persistence of the circumstances justifying the initial arrest and detention. No sufficient reasons for varying the preventive measure have been adduced.”
28. On 29 April 2008 the trial judge returned the case to the prosecutor to amend the list of evidence to be presented at the trial. The judge also upheld the applicant's continued detention on account of the risk that he would reoffend (based on the gravity of the offences and eventual sentences, as well as the previous prosecution against the applicant). On 9 July 2008 the Supreme Court set aside the part of the decision of 29 April 2008 relating to the remittal but upheld the detention.
29. On 27 June and 24 September 2008 the Regional Court extended the applicant's detention on the same grounds as were given in the order of 8 April 2008.
30. The trial resumed on 14 August 2008. On 14 December 2008 the jury convicted the applicant as charged. On 29 December 2008 the trial judge sentenced the applicant to life imprisonment.
31. On 4 June 2009 the Supreme Court quashed the conviction on one count and upheld the remainder of the verdict and the sentence. It appears that the applicant obtained a copy of the appeal decision on an unspecified date in July 2009.
32. Pursuant to Article 109 § 1 of the Code of Criminal Procedure, detention of an accused pending investigation should not exceed two months. It may, however, be extended to six months. Further extensions to up to twelve months are possible only in relation to persons accused of serious or very serious criminal offences, in view of the complexity of the case and if there are grounds justifying detention. An investigator's request for extension must be approved by the regional prosecutor (§ 2). Further extension of detention beyond twelve months and up to eighteen months may be authorised only in exceptional circumstances in respect of persons accused of very serious offences, upon an investigator's request approved by the Prosecutor General or his deputy (§ 3). Extension of detention beyond eighteen months is prohibited and the detainee must be released, unless the court decides to extend his detention to the date when the accused has finished studying the case file and the case has then been submitted for trial (§§ 4 and 8 (1)). After the completion of the investigation, an accused kept in detention must be provided with access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (§ 5). If such access was given later than that, the detainee must be released after the expiry of the maximum period of detention (§ 6). If the thirty-day time-limit was complied with, but was insufficient for the accused, the investigator, with the approval of the regional prosecutor, may request the court to extend the accused's detention. Such a request should be submitted no later than seven days before the expiry of the maximum detention period (§ 7).
33. Under Article 255 of the Code, after a criminal case has been submitted for trial to a court, the latter may, on the party's request or proprio motu, vary or annul a measure of restraint in respect of the defendant, including placement in custody or detention pending trial. The period of detention pending trial cannot normally exceed six months from the date when the case was submitted to a court and up to delivery of a judgment in the case. However, after the expiry of that period the trial court may extend the detention of a defendant charged with a serious or very serious offence. Each extension must not exceed three months.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1