ITEMID: 001-89964
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF K.U. v. FINLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1986.
7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.
8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”.
9. The applicant’s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol (IP) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.
10. The police then asked the Helsinki District Court (käräjäoikeus, tingsrätten) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).
11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen; Act no. 450/1987) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act (laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence.
12. On 14 March 2001 the Court of Appeal (hovioikeus, hovrätten) upheld the decision and on 31 August 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address.
14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act (henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender.
15. The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed.
16. At the material time, Chapter 27, Article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 908/1974) provided:
“A person who in a manner other than that stated above commits an act of malicious misrepresentation against another by a derogatory statement, threat or other degrading act shall be sentenced for malicious misrepresentation to a fine or to imprisonment for a maximum period of three months.
If the malicious misrepresentation is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”
17. At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided:
“Preconditions of telecommunications monitoring
Where there is reason to suspect a person of
(1) an offence punishable by not less than four months’ imprisonment;
(2) an offence against a computer system using a terminal device, a narcotics offence; or
(3) a punishable attempt to commit an offence referred to above in this section;
the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect’s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...”
18. Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which came into force on 1 July 1999 and was repealed on 1 September 2004, provided:
“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:
(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9 (a), Chapter 17, Article 13 § 2 or Chapter 24, Article 3 (a) of the Penal Code (Act no. 39/1889) ...”
19. Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory advertisement on its website. Section 47 provides that the service provider is also liable in damages.
20. At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the subject’s consent was criminalised as a data protection offence in section 43 of the Personal Files Act (Act no. 630/1995) and Chapter 38, Article 9 (Act no. 578/1995) of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 (Act no. 471/1987) of the said Act.
21. Section 17 of the Exercise of Freedom of Expression in Mass Media Act (laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation; Act no. 460/2003), which came into force on 1 January 2004, provides:
“Release of identifying information for a network message
At the request of an official with the power of arrest, a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court, within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”
22. The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989, when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, in 1995 the Committee of Ministers adopted Recommendation No. R (95) 13 concerning problems of criminal procedural law connected with information technology. In point 12 of the principles appended thereto, it recommended that:
“Specific obligations should be imposed on service providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.”
23. The other principles relating to the obligation to cooperate with the investigating authorities stated:
“9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority.
10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.”
24. In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyberspace offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and came into force on 1 July 2004. It is the first and only international treaty on crimes committed via the Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or a computer system, misuse of devices, computer-related forgery and fraud, child pornography, and the infringement of copyright and related rights. The additional protocol to the Convention on Cybercrime, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of the Convention’s procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system:
“1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.
2. ... each Party shall apply the powers and procedures referred to in paragraph 1 of this Article to:
(a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;
(b) other criminal offences committed by means of a computer system; and
(c) the collection of evidence in electronic form of a criminal offence.
3. ...”
25. The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment:
“1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:
(a) a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and
(b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.
2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.
3. For the purpose of this Article the term ‘subscriber information’ means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services, other than traffic or content data and by which can be established:
(a) the type of communication service used, the technical provisions taken thereto and the period of service;
(b) the subscriber’s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;
(c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.”
26. The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, the type of other associated services used (for example, call forwarding, voicemail), or the telephone number or other technical address (for example, the e-mail address). Secondly, where a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21 of the Convention on Cybercrime).
27. A global conference, “Cooperation against Cybercrime”, held in Strasbourg on 1-2 April 2008 adopted the “Guidelines for the cooperation between law enforcement and Internet service providers against cybercrime”. The purpose of the Guidelines is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cybersecurity and minimise the use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The Guidelines outline practical measures to be taken by law enforcement agencies and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers are encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law.
28. Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly Resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on combating the criminal misuse of information technologies. Among the measures to combat such misuse, it was recommended in Resolution 55/63 that:
“(f) legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;”
29. The subsequent Resolution took note of the value of the various measures and again invited member States to take them into account.
30. On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data-retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period of between six months and two years. Article 5 specifies the data to be retained:
“1. Member States shall ensure that the following categories of data are retained under this Directive:
(a) data necessary to trace and identify the source of a communication:
...
(2) concerning Internet access, Internet e-mail and Internet telephony:
...
(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;”
31. Member States had until 15 September 2007 to implement the Directive. However, sixteen States, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet email until 15 March 2009.
32. A comparative review of the national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime.
33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State’s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States.
34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity.
VIOLATED_ARTICLES: 8


ITEMID: 001-58094
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF TROMBETTA v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mrs Maria Luisa Trombetta lives in Catania, where she is employed at the local health unit (“the USL”).
8. The present application concerns five sets of proceedings, the first two of which were instituted by the USL against the applicant in the Sicily Regional Administrative Court (“the RAC”) and the last three by Mrs Trombetta against the USL in the same court. They concern the post assigned to the applicant at the USL and her remuneration following the dissolution of the Catania Provincial Consortium for the Prevention of Tuberculosis (Consorzio provinciale antitubercolare), where she had formerly worked as an administrator. She contested in particular a series of decisions by which her new employer had assigned her to a staff category lower than the one to which she considered herself to be entitled.
9. The first set of proceedings began on 12 June 1987. In a decision of 6 November 1987 the RAC ordered a stay of execution of the decision being challenged. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited.
10. The second set of proceedings began on 20 July 1987. In a decision of 6 November 1987 the RAC ordered a stay of execution of the decision in question. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited.
11. The third set of proceedings began on 19 November 1987. In a decision of 15 December 1987 the RAC dismissed the application for execution of the decision to be stayed. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 9 May 1994 the applicant applied to the court registry for the proceedings to be expedited.
12. The fourth set of proceedings began on 16 December 1988. In a decision of 23 February 1989 the RAC allowed, in part, the application for execution of the decision to be stayed. In an interlocutory judgment of 13 October 1993 it ordered the USL to file certain documents. On 25 May 1994, the applicant applied to the court registry for the proceedings to be expedited.
13. The fifth set of proceedings began on 13 November 1989. In an interlocutory judgment of 13 October 1993 the RAC ordered the USL to file certain documents. On 25 May 1994 the applicant applied to the court registry for the proceedings to be expedited.
14. According to the observations submitted by the applicant in October 1996, the proceedings were then still pending.


ITEMID: 001-95947
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GOCHEV v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1958 and lives in Varna. He is a graduate in international economic relations.
6. On 3 April 2001 the Sofia District Court, acting on a claim by a company V., issued an enforcement order against the applicant on the basis of a promissory note. The debt amounted to 55,331.03 Bulgarian levs (BGN) (or about 28,230 euros (EUR)), plus statutory interest. The costs of the proceedings amounted to BGN 1,108 (about EUR 565).
7. On 2 October 2001 company V. contacted the bailiffs’ service, requesting that the applicant be subjected to an order prohibiting him from leaving the territory.
8. On 2 November 2001 the bailiffs’ service suggested to the director of the Department for Identity Documents (“the director”) that the applicant’s passport be withdrawn. That request was based on section 76 (3) of the Bulgarian Identity Documents Act 1998 (see paragraphs 34 to 37 below), which provided for the possibility of prohibiting natural persons who had debts towards other natural or legal persons amounting to more than BGN 5,000 (about EUR 2,550) from leaving the territory.
9. On 12 November 2001 the applicant was invited to submit evidence that he had provided security to his creditor.
10. By a decision of 21 December 2001, the director, referring to section 76 (3) of the Bulgarian Identity Documents Act 1998 and the request by the bailiffs’ service, imposed the proposed measure for an indefinite period. He ordered that the applicant’s passport be withdrawn and instructed the relevant authorities not to issue him with a new passport.
11. The applicant brought an application for judicial review, arguing that the domestic legislation allowed for the imposition of those measures only where the existence of the debt had previously been recognised by a judicial decision that had become final. He submitted that, since his debt arose from a promissory note, that condition had not been met in his case.
12. On 30 May 2002, following a request submitted by the applicant, the director contacted the bailiffs’ service, requesting its opinion on the appropriateness of lifting the prohibition on leaving the territory, and indicated that the applicant had submitted evidence that he had provided security to his creditor. By a letter of 11 July 2002, the bailiffs’ service replied that the applicant had not paid his debts, that he had not provided security and that it was therefore appropriate to continue to apply the measure in question.
13. By a judgment of 11 February 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The court held that a enforcement order issued by a court represented sufficient judicial recognition of the debt in question. It further noted that the applicant had not provided a security to his creditor, that he did not possess assets of a value equivalent to the amount of his debt and that he had not submitted evidence concerning a possible termination of the enforcement proceedings.
14. The applicant appealed on points of law.
15. By a judgment of 21 July 2003, a five-judge bench of the Supreme Administrative Court dismissed the appeal and endorsed the reasoning given by the lower court.
16. On 7 May 2008 the bailiffs’ service suggested to the director that the decision of 21 December 2001 be revoked on the ground that the enforcement proceedings had been closed, given that the creditor had not requested new execution measures over a period of more than two years.
17. The decision in question was revoked on 17 May 2008.
18. On 25 October 1999 the Karlovo District Court, acting on a claim by a company B., issued an enforcement order against the applicant on the basis of another promissory note. This debt amounted to BGN 17,531 (about EUR 8,765).
19. By a request of 20 February 2002, company B. called for the imposition of a measure prohibiting the applicant from leaving the territory. Its representative argued that the applicant had disposed of some of his property that was under attachment, namely vehicles. He noted that company B. had succeeded in attaching real estate belonging to the applicant, but that its value was considerably lower than the sum owed.
20. On 5 March 2002 the bailiffs’ service, on instructions from company B., requested the imposition of an order prohibiting [the applicant] from leaving the territory under section 76 (3) of the Bulgarian Identity Documents Act 1998. On that date the amount of default interest due was BGN 7,421 (about EUR 3,786).
21. By a letter of 25 April 2002, the applicant was informed of the director’s intention to apply the requested measure. He was invited to submit evidence that he had provided security to his creditor.
22. By a decision of 27 May 2002, the director, again referring to section 76 (3) of the Bulgarian Identity Documents Act 1998 and to the proposal by the bailiffs’ service, ordered that the applicant’s passport be withdrawn and instructed the relevant bodies not to issue him with a new passport for an indefinite period.
23. The applicant brought an application for judicial review. He claimed that the order prohibiting him from leaving the territory had no legal basis, that he had intended to effect a set-off using a debt owed by company B., that he had provided security and that he had reimbursed part of his debt.
24. By a judgment of 29 December 2002, the Supreme Administrative Court dismissed the applicant’s application. The court held that the judicial recognition of a debt within the meaning of section 76 (3) of the Bulgarian Identity Documents Act 1998 could arise from a judicial decision that was not res judicata, such as the decision to issue an enforcement order. The other arguments raised by the applicant were dismissed as unsubstantiated or of minor relevance.
25. The applicant appealed on points of law.
26. On 23 April 2003 a five-judge bench of the Supreme Administrative Court upheld the contested decision.
27. It was common ground between the parties that the applicant had been free to leave the national territory since 17 May 2008.
28. The applicant’s daughters, T.G. and M.G., were born in 1986 and 1997 respectively.
29. On 19 December 2001 the Sofia District Court granted a divorce to the applicant and S.G., the mother of his children. A residence order in respect of the two girls was given in favour of S.G. The applicant was given contact rights, amounting to two weekends per month and two two-week periods during the winter and summer holidays.
30. S.G. subsequently settled in the United Kingdom with the two children. Since September 2003, T.G. and M.G. have lived permanently in the UK, where they are being educated.
31. On 5 March 1999 the applicant created, in St Petersburg, a branch of the limited liability company “Univeks” OOD, of which he was an associate. He indicated that in 2002 the Russian market had stabilised and had opened up to Bulgarian products. The prohibition on leaving Bulgarian territory had prevented him from developing his commercial activity in Russia, as it had obliged him to remain permanently in Bulgaria.
32. On 12 March 2002 the applicant, representative and only associate of the limited liability company “Geomark” EOOD, signed a contract for the sale of Bulgarian cosmetics and cleaning products with a Russian company. This contract was worth 500,000 American dollars (USD) and was valid until 31 December 2004. Among the terms and conditions, a clause specified that the applicant was to have the products approved by the Russian authorities.
33. On 29 July 2002 the purchaser and the applicant signed an amendment to the contract, concerning the shipment of products with a value of USD 10,114.28. As the applicant could not travel to Russia in order to obtain approval for the goods, he subsequently withdrew. The reasons for his withdrawal were considered as a case of force majeure by the other party to the contract, and the applicant was not required to pay penalties. As the prohibition on leaving the territory was maintained until the end of the period of validity of the contract, it was not performed. The applicant indicated that he had expected to earn twenty percent of the value of the orders placed.
34. The Bulgarian Identity Documents Act 1998 (Закон за българските документи за самоличност – “the 1998 Act”), which entered into force on 1 April 1999, provides that the relevant bodies of the Ministry of the Interior may impose a prohibition on leaving the territory on an individual who has debt “established by judicial means” amounting to more than BGN 5,000 (about EUR 2,550) towards other physical or legal persons (section 76 (3) taken together with paragraph 1 (5) of the supplementary provisions to the 1998 Act). In addition, at the material time, the Act provided for two other measures, namely the withdrawal of passports and the refusal to issue a passport to a debtor.
35. These preventive measures cannot be imposed if the debtor has provided security to his or her creditor or if he or she possesses assets of sufficient value to be used as reimbursement of the debts (section 76 (3)).
36. The Supreme Administrative Court considers that the instruction by which a court issues an enforcement order on the basis of a promissory note constitutes judicial recognition of the debt within the meaning of the 1998 Act (see, inter alia, Decision no. 8907 of 23 November 2001 in case no. 4766/2001, and Decision no. 6937 of 7 July 2003 in case no. 4150/2003, Решение № 8907 от 23.11.2001 г. по адм. д. № 4766/2001 г., Решение № 6937 от 07.07.2003 г. по адм. дело № 4150/2003 г.).
37. Furthermore, the Supreme Administrative Court considers that the administrative body which imposes a prohibition on leaving the territory has discretionary power with regard to the appropriateness of that measure (see Decision no. 10998 of 9 December 2005 in case no. 4980, and Decision no. 10908 of 8 November 2007 in case no. 7909/2007, Решение № 10998 от 09.12.2005 г. по адм .дело № 4980/2005 г., Решение № 10908 от 08.11.2007 г. по адм. д. № 7909/2007 г.). Thus, courts were required merely to verify that the legal conditions set out in the 1998 Act had been fulfilled.
38. The liability of the maker of a promissory note lapses by limitation three years from the date on which it is payable (section 531 of the Commerce Act). The limitation period is interrupted if enforcement proceedings are brought, and the interruption causes a new limitation period to begin to run (sections 116 and 117 of the Obligations and Contracts Act).
39. If in the course of two years the creditor does not request new execution measures, the enforcement proceedings must be closed (Article 330 of the 1952 Code of Civil Procedure). This provision was reproduced in similar terms in Article 433 of the new Code of Civil Procedure, in force since 1 March 2008.
40. The applicant alleged that there had been a violation of his right to leave the country, guaranteed by Article 2 of Protocol No. 4 to the Convention. This Article provides:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
41. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
42. The applicant considered that the preventive measures envisaged in the 1998 Act were inapplicable in his case. He considered that the domestic courts had incorrectly applied the relevant legal provisions, given that the existence of his debts had not been recognised by decisions that were res judicata. In particular, he alleged that an enforcement order issued on the basis of a promissory note could not be equated with a document entailing judicial recognition of his debts. Accordingly, he considered that his debts had not been “established by judicial means”. The applicant concluded that the measure taken against him had not been “in accordance with law”.
43. The Government submitted that the prohibition on leaving the territory had been imposed in compliance with the legislation in force, that it pursued the protection of the rights of others and that it had been necessary in order to ensure that that objective was met.
44. The Court reiterates that Article 2 of Protocol No. 4 to the Convention guarantees to any person a right to liberty of movement, including the right to leave any country for such other country of the person’s choice to which he or she may be admitted. Any measure restricting that right must be lawful, pursue one of the legitimate aims referred to in the third paragraph of the above-mentioned Convention provision and strike a fair balance between the public interest and the individual’s rights (see Baumann v. France, no. 33592/96, § 61, ECHR 2001-V, and Riener v. Bulgaria, no. 46343/99, § 109, 23 May 2006).
45. The Court observes that in this case it was not disputed that there had been interference with the rights conferred on the applicant by Article 2 of Protocol No. 4.
46. With regard to the lawfulness of the measure, the Court reiterates its settled case-law according to which the expression “in accordance with law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). In order for the law to meet the criterion of foreseeability, it must set forth with sufficient precision the conditions in which a measure may be applied, to enable the persons concerned – if need be, with appropriate advice - to regulate their conduct.
47. The Court observes that the expression “established by judicial means” could have given rise to various interpretations at the time the 1998 Act was enacted. In so far as the applicant complains of the lack of precision and foreseeability of section 76 (3) of that Act, the Court reiterates that it is normally in the first place for the national authorities, notably the courts, to interpret and apply domestic law. It notes in the instant case that there exists a settled case-law of the Supreme Administrative Court on this provision. In those circumstances, the Court considers that, even if it could have resulted in a certain degree of uncertainty at the time, the ambiguity referred to by the applicant cannot in itself lead to the conclusion that the interference was unforeseeable to the extent that it was incompatible with the principle of lawfulness set out in Article 2 of Protocol No. 4 (see Riener, cited above, § 112, and, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000I). Moreover, the existence of the debt as established by a promissory note could be challenged before the courts.
48. The Court also considers that the imposition of a measure such as that in the instant case was intended to guarantee the interests of creditors and that in principle it pursued a legitimate aim, namely the protection of the rights of others.
49. With regard to the proportionality of a restriction imposed on account of unpaid debts, the Court reiterates that it is justified only so long as it furthered the pursued aim of guaranteeing recovery of the debts in question (see Napijalo v. Croatia, no. 66485/01, §§ 78 to 82, 13 November 2003). Furthermore, even were it justified at the outset, a measure restricting an individual’s freedom of movement may become disproportionate and breach that individual’s rights if it is automatically extended over a long period (see Luordo v. Italy, no. 32190/96, § 96, ECHR 2003-IX; Földes and Földesné Hajlik v. Hungary, no. 41463/02, § 35, ECHR 2006...; and Riener, cited above, § 121).
50. In any event, the domestic authorities are under an obligation to ensure that a breach of an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in view of the circumstances. They may not extend for long periods measures restricting an individual’s freedom of movement without regular reexamination of their justification (see Riener, cited above, § 124, and Földes and Földesné Hajlik, cited above, § 35). Such review should normally be carried out, at least in the final instance, by the courts, since they offer the best guarantees of the independence, impartiality and lawfulness of the procedures (see Sissanis v. Romania, no. 23468/02, § 70, 25 January 2007). The scope of the judicial review should enable the court to take account of all the factors involved, including those concerning the proportionality of the restrictive measure (see, mutatis mutandis, Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 60, Series A no. 43).
51. Turning to the circumstances of the present case, the Court notes that the applicant was prohibited from leaving the territory for the first time on 21 December 2001. That measure was lifted on 17 May 2008. It therefore remained in force for more than six years and four months.
52. The Court observes that the parties have not submitted detailed information on the conduct of the enforcement proceedings which were used to justify the restriction on the applicant’s freedom of movement. It is consequently impossible to assess whether or not the steps taken by the authorities and creditors to recover the debts were sufficient, or to evaluate the applicant’s capacity to pay the amounts due to his creditors. Nor were those circumstances discussed in the decisions and judgments of the domestic authorities. The director explained his decisions by the existence of a request from the bailiffs’ service, while the domestic courts merely noted in their judgments that the applicant did not possess assets of a value equal to the amount of his debt and that he had not provided security to his creditors. Accordingly, the Court is unable to rule on whether the imposition and maintenance of this restriction over a considerable period was objectively justified by the aim of guaranteeing recovery of the debts.
53. On the other hand, the Court considers that the facts of the case suggest that the applicant was subjected, from the outset, to a measure of an automatic nature. The measure in question was imposed by the director without a request for explanations by the applicant concerning his personal situation or even about the circumstances surrounding the non-payment of his debts, and without these issues being examined in his decision. While it is true that the effectiveness of a preventive measure frequently depends on the speed of its implementation, this does not dispense the relevant domestic body from an obligation to gather the relevant information once the measure has been imposed. In the instant case, the applicant was merely invited to indicate, before the director issued his decisions, whether he had provided security to his creditors. Thus, the Court is of the opinion that the administrative body did not take account of all the relevant information in order to ensure that the restriction on the applicant’
54. The Court further notes that the director’s decisions to impose a prohibition on leaving the territory were examined by the Supreme Administrative Court. In so far as that court held that it did not have jurisdiction to rule on the appropriateness of imposing such measures (see paragraph 37 above), the Court considers that the scope of the judicial review also failed to satisfy the requirements of Article 2 of Protocol No. 4 (see paragraph 50 above).
55. As to whether the domestic authorities fulfilled their duty to re-examine regularly the measures restricting the applicant’s freedom of movement, the Court notes that no re-examination of the impugned measures was carried out following the Supreme Administrative Court’s confirmation of the decisions by the director of the Department for Identity Documents (see paragraphs 15 and 26 above).
56. Admittedly, the applicant has not specified whether he asked the director of the Department for Identity Documents to lift the impugned measures after the Supreme Administrative Court had given its judgments. However, given that in reality it appears that he could obtain a lifting of the prohibition on leaving the territory only in the event of payment of the debts, presentation of a sufficient guarantee or, as was the case here, in the event of termination of the enforcement proceedings, the Court considers that the applicant cannot be criticised for failing to avail himself of that possibility.
57. In view of the foregoing considerations, the Court considers that the applicant was subjected to measures of an automatic nature, with no limitation as to their scope or duration (see Riener, cited above, § 127). It concludes that the Bulgarian authorities have failed in their obligation under Article 2 of Protocol No. 4 to the Convention to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances. In view of this conclusion, the Court does not consider it necessary to address the issues of whether the application of a measure restricting the freedom to leave the country on account of debts owed to private persons can be justified by the high amount of the debts in question or by their particular importance for the creditor, as, for example, in the case of a maintenance order.
Accordingly, there has been a violation of the applicant’s right to freedom of movement, guaranteed by Article 2 § 2 of Protocol No. 4.
58. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
59. The applicant claimed EUR 150,000 in respect of pecuniary damage, which he linked to loss of earnings arising from the prohibition on leaving the territory of Bulgaria. He alleged that had the branch of his company “Univeks” OOD been able to develop its commercial activity in Russia, it would have made a profit of EUR 6,000 per year, or EUR 36,000 for the period covered by the prohibition. He also considered that the sales contract for cosmetics and cleaning products, signed in 2002, could have earned him EUR 114,000. Finally, he requested payment of interest on these amounts, at the statutory rate, to run from the date on which the application was lodged with the Court.
60. The applicant also claimed EUR 50,000 in respect of non-pecuniary damage. He argued that, on account of the prohibition on leaving the national territory, he had been unable to meet his daughters after their departure for the United Kingdom, in spite of the fact that he had extensive visitation rights. Finally, he alleged that he had been unable to exercise his profession and that his reputation had been tarnished among his trading partners abroad.
61. The Government considered that the applicant’s claims were illfounded.
62. The Court does not perceive a sufficient causal link between the violation found and the alleged pecuniary damage. In particular, it considers that the applicant has not submitted convincing evidence that his presence was essential for the performance of the contract signed in March 2002. Furthermore, it notes that the finding of a violation of a breach of the State’s duty to examine the proportionality of the measure restricting the applicant’s freedom of movement does not amount to a finding that the measure lacked any justification. Accordingly, the Court dismisses the claim concerning pecuniary damage. It considers, however, that it is appropriate to award the applicant EUR 5,000 in respect of non-pecuniary damage.
63. The applicant claimed EUR 1,934 for the costs and expenses incurred before the Court, of which EUR 1,534 were for lawyer’s fees and EUR 400 were for postage, translation and certification of a document. With regard to the remuneration of his lawyer, he also claimed the difference between the sum of EUR 1,534 and the equivalent of 25 percent of the amounts that would be awarded to him in respect of pecuniary and nonpecuniary damage. He submitted a fee agreement and invoices with regard to the other costs.
64. The Government considered these amounts excessive.
65. The Court reiterates that an applicant may recover his costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum. In the instant case, having regard to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the applicant the aggregate sum of EUR 1,500.
66. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.


ITEMID: 001-72886
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MELNIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Zoryana Bortnovska
TEXT: 4. The applicant, Mr Aleksandr Vasilyevich Melnik, is a Ukrainian national who was born on 17 May 1961. He is currently serving a prison sentence.
5. In December 1999 M.O.D. (a private person) found a packet of opium (макова соломка). M.O.D., with the applicant's agreement, later hid the packet in the applicant's house with a view to its subsequent sale and the purchase of alcohol.
6. On 28 February 2000 the captain of the Vinnytsia District of the Interior's Division on Combating the Illegal Circulation of Drugs (the “CICD”) issued a resolution authorising the purchase of opium from the applicant on the basis of information received from undisclosed sources. This resolution was approved by the Vinnytsia District prosecutor and the Head of the Vinnytsia Department of the Interior.
7. On the same date C.I.S. (an undercover police agent operating under a pseudonym) received instructions from police officers (міліціонерів) to purchase some of the opium. He also received the sum of 12 hryvnas (UAH) for that purpose.
8. On the same date the applicant and M.O.D. were apprehended for selling drugs to C.I.S. The opium, which weighed 190 grams, was seized by the police, together with the marked money received by the applicant from C.I.S. The police prepared records of the purchase (про оперативну закупку), finding, confiscation (віднайдення та виїмки) and weighing (взвішування) of the substance and of the search of the buyer (акт огляду покупця). Statements were drawn up in the presence of two witnesses, as required by the relevant provisions of the Code of Criminal Procedure. The applicant and M.O.D. were not placed in detention, but were released on an undertaking not to abscond.
9. On 9 and 10 March 2000 the investigator of the Investigative Division of the Ministry of the Interior's Vinnytsia District Department (the “Division”) questioned two witnesses (V.V.M. and P.Yu.M.). They were the police officers from the CICD who had organised the purchase and subsequently arrested the applicant and M.O.D.
10. On 24 March 2000 the Division's investigator informed the applicant that he was entitled to have a representative. The investigator relied on Articles 21, 44 and 45 of the Code of Criminal Procedure. The applicant stated that he refused to be represented by a lawyer and that this decision was not related to his financial situation.
11. On the same date the Division's investigator issued a resolution accusing the applicant of being involved in the purchase, sale and storage of narcotic substances with intent to sell, premeditated by a group of persons (Article 229-1 of the former Criminal Code). The applicant was questioned by the investigator as an accused.
12. The applicant claims that in the course of the investigation he and his relatives requested legal representation.
13. On 25 April 2000 the Vinnytsia District Court of the Vinnytsia region (Вінницький районний суд Вінницької області) held a preliminary hearing. It assumed jurisdiction over the case and adjourned the hearing to 22 May 2000 at the applicant's request. The applicant informed the court that he did not wish to be represented by a lawyer but wished to represent himself at the hearing. The hearing was adjourned upon M.O.D.'s request.
14. On 22 May 2000 the court resumed its examination of the case. The participants in the hearing were the prosecutor, the applicant and M.O.D., a witness police officer from the CICD (S.V.V.) and G.A.I., the applicant's neighbour, who had witnessed the arrest and seizure of money by the police officers.
15. During the hearing the court accepted the applicant's decision not to be represented by a lawyer. It also decided to hear the case in the absence of certain prosecution witnesses (P.Yu.M. and V.V.M.), who had been duly informed about the date and time of the hearing but did not appear before the court. The judge also informed the applicant and his co-accused that a guilty plea might be accepted by the court as a mitigating factor.
16. On 23 May 2000, at the hearing, the applicant pleaded partly guilty to the charges against him. In particular, he stated that he considered himself guilty of storing the opium. In the course of the trial the applicant again rejected legal assistance and stated that he wished to present his own arguments for reasons unrelated to his difficult financial situation.
17. During the hearing the applicant and his co-accused did not attempt to challenge any evidence and made no pleas, except those relating to the acknowledgment of their guilt and the mitigation of their sentence. On the same date the Vinnytsia District Court convicted the applicant of involvement in the unlawful purchase and possession of drugs, with intent to sell, premeditated by a group of persons (Article 229-1 of the former Criminal Code). It sentenced him to five years' imprisonment and ordered that his personal property be confiscated. In particular, the Vinnytsia District Court found that,
“... in the course of the hearing [the applicant] partly acknowledged his guilt ...
... in the course of the preliminary investigation witnesses [P.Yu.M.] and [V.V.M.] (police officers) explained that [C.I.S.] was to purchase [opium] at Melnik's place of residence ...
The defendant's guilt ... is also proved by other evidence, in particular the act of purchase, the record of searching the buyer, the record of the undercover purchase, the record of seizure, the record of the weighing, [and] the forensic expert's conclusion [as to the amount of dry opium poppy]...
... the court considers that the following corpus juris, envisaged by Article 229-1 of the Criminal Code..., can be found in the actions of Melnik O.V.: - the unlawful purchase [and] possession with intent to sell, premeditated by a group of persons...”
18. On 29 May 2000 the applicant appealed against his conviction to the Vinnytsia Regional Court. In particular, he stated that he had only been storing the opium, and that his sentence should be milder, not involving a deprivation of liberty.
19. On 12 July 2000 the Vinnytsia Regional Court, in the absence of the applicant and in the presence of a prosecutor, rejected the applicant's appeal and upheld the judgment of 23 May 2000. The judgment became final.
20. On 24 October 2000 the Committee reviewed a petition from the applicant's wife, asking that he be assigned legal representation. On the same date the Committee appointed Mr Shulgin as the public defender (громадський захисник) to represent the applicant.
21. On 30 October 2000 Mr Shulgin lodged complaints with the President of the Vinnytsia District Court, seeking permission to review the case file and authorisation to meet the applicant in order to prepare an appeal against the judgment.
22. On 2 November 2000 the judge of the Vinnytsia District Court refused this application on the ground that the law did not allow for such an action by a public defender. In particular, the court informed Mr Shulgin:
“... Vinnytsia District Court informs you that your application of 30 October 2000 with regard to providing the materials of the criminal case ... and an opportunity to meet the defendant in order to represent him in supervisory proceedings cannot be allowed because, in accordance with the legislation of Ukraine, a public defender (громадський захисник) can only participate in the judicial consideration of the case and the law does not afford him a right of appeal against the verdict.
Also, Article 384 of the Code of Criminal Procedure... provides an exhaustive list of those persons who have the right to lodge protests against court verdicts, rulings or resolutions that have entered into force, and Chapter 31 of the Code of Criminal Procedure ... sets out the grounds and the procedure for [such a] supervisory review...”
23. On 28 September 2000 the applicant was detained for the purpose of serving his sentence and placed in the Vinnytsia Temporary Detention Centre.
24. On 29 September 2000 the applicant was transferred to Vinnytsia Prison No. 1, where he stayed from 29 September to 18 October 2000.
25. On arrival at Vinnytsia Prison No. 1 the applicant was examined by doctors from the prison's medical unit and found to be generally healthy.
26. On 2 October 2000 the applicant underwent a chest X-Ray examination. This examination found no signs of illness.
27. Between 29 September and 18 October 2000, the applicant lodged no complaints or applications with the prison administration for dispatch to third persons.
28. At some time between 18 October and 31 October 2000, the applicant was transferred from Vinnytsia Prison No. 1 to Arbuzynsk Penitentiary No. 316/83 in the Mykolayiv Region (“Penitentiary No. 316/83”).
29. On 31 October 2000 the applicant arrived at Penitentiary No. 316/83. However, he did not undergo the mandatory medical examination for possible tuberculosis.
30. The applicant was detained in Penitentiary No. 316/83 from 31 October 2000 to 23 April 2001. He was accommodated in dormitory no. 10. He had a separate bed and essential furniture, and was provided with clothes and linen. There were 32 other inmates in the dormitory, which had natural ventilation, large glass windows and electricity.
31. During the applicant's stay there, he had two visits from relatives: one from his brother on 7 December 2000 and one from his wife on 8 December 2000.
32. Between October 2000 and April 2001, the administration of the Penitentiary recorded no correspondence from the applicant. Furthermore, there was no record of a request from the applicant's representative to meet the applicant among the entries in the prison's register of citizens' complaints for 2000-2001.
33. On 13 April 2001, for the first time, the applicant applied to a doctor in Penitentiary No. 316/83, complaining that he was experiencing shortness of breath and was coughing up phlegm. On the same date he was examined and an X-ray was taken. Following this examination, a doctor from the Arbuzynsk Central District Hospital diagnosed the applicant as suffering from pneumonia and suspected lung cancer. Another chest X-ray was ordered to establish a final diagnosis.
34. On 14 April 2001 a further chest X-ray was taken. A radiologist at the Arbuzynsk Central District Hospital concluded that the applicant was suffering from lung cancer.
35. On 19 April 2001 the applicant was transferred to the Hospital of Daryivska Penitentiary No. 10 for further medical examinations and treatment. Between 19 April and 22 June 2001, the applicant received treatment and underwent further clinical examinations. The final diagnosis was tuberculosis in its early stages.
36. On 23 April 2001 the applicant was transferred to Snigurivska Penitentiary No. 5 in the Mykolayiv Region (“Penitentiary No. 5”; an interregional tuberculosis hospital for convicts), where the diagnosis of tuberculosis was confirmed.
37. From 26 June 2001 the applicant underwent in-patient treatment at Penitentiary No. 5. The Government claimed that he received all the medication prescribed by the recommendations of the Ministry of Public Health.
38. On 4 June 2002, owing to an improvement in his state of health, the applicant was transferred to outpatient treatment. From 11 August 2003 onwards, the applicant received regular outpatient treatment in order to prevent a relapse. However, the lengthy treatment for tuberculosis led to side-effects, such as sight impairment (погіршення зору) and dizziness.
39. Since 12 March 2004 the applicant has been detained at Penitentiary No. 5, with a diagnosis of clinically cured tuberculosis.
40. According to the register of correspondence of Penitentiary No. 5, the applicant sent a letter to his wife on 12 November 2002. No other correspondence was sent by him.
41. On 20 December 2001 the applicant received a 24-hour visit from his brother.
42. The Government alleged that, in the course of serving his sentence, the applicant received no visits from lawyers or public defenders, and did not submit any applications concerning such visits.
43. The relevant extracts from Articles 59 and 63 of the Constitution of Ukraine read as follows:
“Everyone has the right to legal assistance. Such assistance is provided free of charge in those cases envisaged by law. Everyone is free to choose the defender of his or her rights...”
“... A suspect, an accused or a defendant has the right to a defence...”
44. The relevant provisions of the Code of Criminal Procedure read as follows:
“The defence rights of suspects, accused persons or defendants shall be ensured.
Persons conducting an inquiry, investigators, prosecutors, judges and the courts are obliged to explain to the suspect, accused or defendant that, in order to have the benefit of a defence lawyer before the first examination, they [the competent officials] must draw up a written statement. They should also provide the suspect, accused or defendant with an opportunity to defend himself in accordance with the means established by law, and ensure the protection of his or her personal and property rights.”
“The participation of a defence lawyer during the inquiry and the preliminary investigation and during consideration of the criminal case in the first-instance court is obligatory, save where the suspect, accused person or defendant refuses legal representation in accordance with the procedure established by Article 46 of the Criminal Code of Ukraine.”
“Suspects, accused persons and defendants have the right to refuse legal representation. A refusal of this nature is only possible at the initiative of the suspect, accused or defendant, and cannot be an obstacle to the continued participation of the prosecutor or public accuser in the criminal case, or of defence counsel acting for other suspects, accused persons or defendants.
In the event of a refusal to be represented ... the person conducting the inquiry or the investigator shall draw up a written statement, [and] the court shall issue a ruling or the judge shall deliver a resolution. ...”
“Defence counsel ... shall be requested to participate in the proceedings by the suspect, accused or defendant, by their lawful representatives, relatives or other persons, in accordance with the authority granted by the suspect, accused person or defendant, or on the basis of an application by them. ...”
“...The verdict must be annulled in the following circumstances:
...(4) if the case was examined by the court without the participation of defence counsel, where his or her participation is obligatory under the law.”
45. Resolution No. 1752 of the Cabinet of Ministers of 27 December 2001 “On the ration of individuals suffering from tuberculosis and infected with micro-bacteria of tuberculosis” provides that each adult convict suffering from tuberculosis must receive 3,198 kcal per day in food rations.
46. Resolution No. 336 of the Cabinet of Ministers of 16 June 1992 “On the approval of the norms of daily food rations of convicts and persons who are held in pre-trial detention facilities [SIZO], sobering-up facilities [LTP] and police detention facilities [ITT]” and its Appendix No. 1 (Norm No. 1 “On providing food for convicts held in penitentiaries”) provide that each convict must receive 3,026 kcal (general norm) and 3,059.4 kcal (norm for special diets).
47. The relevant extracts from the 2nd General Report on the CPT's activities, covering the period 1 January to 31 December 1991 (CPT/Inf (92) 3 of 13 April 1992), read as follows:
“43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
48. The relevant extracts from the 7th General Report of the Committee for the Prevention of Torture (CPT/Inf (97) 10), relating to “prison overcrowding” and “large capacity dormitories”, read as follows:
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports. As the CPT's field of operations has extended throughout the European continent, the Committee has encountered huge incarceration rates and resultant severe prison overcrowding. ...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions. No doubt, various factors – including those of a cultural nature - can make it preferable in certain countries to provide multi-occupancy accommodation for prisoners rather than individual cells. However, there is little to be said in favour of - and a lot to be said against – arrangements under which tens of prisoners live and sleep together in the same dormitory.
Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives. Moreover, the risk of intimidation and violence is high. Such accommodation arrangements are prone to foster the development of offender subcultures and to facilitate the maintenance of the cohesion of criminal organisations. They can also render proper staff control extremely difficult, if not impossible; more specifically, in case of prison disturbances, outside interventions involving the use of considerable force are difficult to avoid. With such accommodation, the appropriate allocation of individual prisoners, based on a case by case risk and needs assessment, also becomes an almost impossible exercise. All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
The CPT must nevertheless stress that moves away from large-capacity dormitories towards smaller living units have to be accompanied by measures to ensure that prisoners spend a reasonable part of the day engaged in purposeful activities of a varied nature outside their living unit.”
“An overcrowded prison entails cramped and unhygienic accommodation; a lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention.”
50. In so far as it concerns tuberculosis, the Committee for the Prevention of Torture's report on its visit to Ukraine in 2002 (CPT/Inf (2002)23), reads as follows:
“... In its two previous reports, the CPT dealt at length with this major problem affecting the Ukrainian penitentiary system. In 2000, the state of affairs in the establishments visited was just as desperate as in the past when it came to combating tuberculosis and caring for prisoners suffering from this disease.
The CPT calls on the Ukrainian authorities to ensure that the penitentiary system is in a position to pursue a strategy for effective screening and action against tuberculosis, in keeping with the recommendations it has already made (cf. paragraphs 153 and 154 of the report on the 1998 visit and paragraph 51 of the report on the 1999 visit, as well as paragraph 104 above).
... The conditions observed were favourable to the spread of the disease and as such constituted a clear health hazard for patients: in particular, there was no access to natural light or fresh air and hygiene was inadequate. ... Furthermore, in the light of other findings made by its delegation, the Committee recommends that all tuberculosis patients be offered at least one hour in the open air per day.
... Recommendations (on health care services):
- the necessary measures to be taken to ensure that penitentiary establishments have a sufficient supply of appropriate medicines, a particularly high priority to be given to the supply of medicines for the treatment of tuberculosis (paragraphs 104, 106 and 111);
- ensure in all penitentiary establishments that every newly-arrived prisoner is properly interviewed and physically examined by a medical doctor as soon as possible after his/her arrival; save for in exceptional circumstances, that interview/examination to be carried out on the day of admission, especially in so far as remand establishments are concerned (paragraph 108);
- the Ukrainian authorities to ensure that the penitentiary system is in a position to pursue a strategy for effective screening and action against tuberculosis, in keeping with the recommendations already made by the Committee (paragraph 111);
- all tuberculosis patients to be offered at least one hour in the open air per day (paragraph 112).”
51. The relevant extracts from the World Health Organisation's report on Ukraine read as follows:
“... Tuberculosis is another important problem facing Ukraine. Although coverage with BCG has been increasing since 1993 to around 97% by the end of the 1990s, reported case notification rates have more than doubled since independence, from 32.2 per 100,000 in 1991 to 66.5/100,000 in 2000, with an estimated case notification rate of 91.3 per 100,000 in 2002. The situation is especially critical in the prison population, which accounts for about 30% of all tuberculosis patients in Ukraine. It has been estimated that of a prison population of now 200,000 about 14,000 have active TB, which equates a prevalence rate of 7,000 per 100,000. Moreover, 40% of deaths in prisoners are reported to be due to TB. At the same time, drug-resistant tuberculosis is also increasing rapidly, which poses a substantial additional burden to the health care system as it is vastly more difficult and costly to treat. A study from Chernihiv suggests that about 50% of new tuberculosis patients have resistance to at least one drug; multi-drug resistant tuberculosis appears to be present in 10–15% of new cases...
The worsening of the tuberculosis epidemic in Ukraine noted earlier has been attributed to a number of factors. Lack of sufficient funds has resulted in failure to modernize and equip tuberculosis facilities and, more generally, to maintain overall treatment services, leading to a decline in access to services. Also, the continuing increase of tuberculosis rates was facilitated by the emergence of the HIV epidemic, with a reported 50% of adults dying from AIDS in 1997 having tuberculosis. At present, the share of tuberculosis cases that are HIV-positive is estimated at 54 per 100,000 population. The increase in multi-drug resistant tuberculosis resulted from inadequate treatment and shortages in the drug supply. In response to the tuberculosis epidemic, the Ministry of Health adopted a National Programme for Tuberculosis Fighting for 2002–2005. This initiative gained major support by the World Bank with a loan of US $ 60 million for the Tuberculosis and HIV/AIDS Control Project.”
52. The relevant extracts from the World Bank's Sector-related Country Assistance Strategy (CAS) read as follows (document no. 20723-UA, August 16, 2000):
“... Ukraine has had a long history of effectively controlling tuberculosis and other infectious diseases. The specialized physicians and other medical workers are well-trained, and the system of tuberculosis control has a long and proud history. The system, however, has proven financially difficult to maintain in periods of economic uncertainty. Throughout the country, both in the Ministry of Health (MOH) and in prisons, TB facilities need to be modernized, especially laboratory services, so that TB cases can be detected faster and more effectively. Outpatient services also need to be improved so that treatment regimens can be better monitored and complied with. A detailed analysis of TB sector issues is presented in section B.
... Epidemiological Situation of Tuberculosis: As an outcome of its comprehensive and effective tuberculosis (TB) control system, in 1990, Ukraine reported its lowest number of TB cases in the modern era, 16,465 for a case rate of 32.0 per 100,000 population. As in many of the newly independent states, tuberculosis has increased dramatically in Ukraine following independence from the former Soviet Union. By 1999, the number of cases had reached 32,691, with a case rate of 65.0, a doubling of the rate compared to 1990. Case rates in the administrative regions ranged from 35.9 in Kiev to 72.9 in the Zaporozhye region. About 30 percent of all TB patients in Ukraine are in prison and pre-[trial] detention centres (SIZOs). The problems of over-crowding, malnutrition, late diagnosis and lack of drugs are particularly well-known in prisons and aggravate the TB situation. About 14,000 of the 200,000 prisoners in Ukraine have active TB (prevalence of an astronomical 7,000 per 100,000). Forty percent of deaths in prisoners are due to TB.
Drug-resistant TB, which is significantly more difficult and costly to treat, is also increasing rapidly. Preliminary results indicate that half of all patients have resistance to at least one drug, while resistance to isoniazid and rifampicin (referred to as multi-drug resistant TB, or MDR-TB, see annex I1, technical terms) is present in 1015 percent of new cases.
... Overall, 75-80 percent of cases occur in the 20 to 59 age groups. The ratio of reported cases of TB in men to women is 7 to 1. The disease had risen 141 percent in urban populations between 1990 and 1998, while the increase in rural populations was 67.2 percent. Cases of TB in Ukraine tend to be diagnosed at a much later, more advanced stage of the disease than in other areas of the world.
A combination of factors has contributed to the worsening epidemic. Treatment services were not sustainable during the period of economic decline. Access to care was reduced and treatment default rates increased with the decentralization of services to region and rayon dispensaries... an early merging of the TB and the HIV epidemics was witnessed. In 1997, about 30 percent of adults diagnosed with AIDS and 50 percent of adults dying from AIDS had tuberculosis. The increase in multi-drug resistant TB resulted from inadequate treatment and drug supply shortages.”
53. The relevant extracts from the State Department report read as follows:
“... Ukraine's estimated tuberculosis case rate of 95 cases per year per 100,000 people is the eighth highest in Europe and Eurasia. According to the World Health Organization's Global Tuberculosis Control: WHO Report 2004, Ukraine had nearly 47,000 TB cases in 2002. Of these, about half were cases of sputum smear-positive (SS+) TB, a rate of 43 cases per 100,000 people. In 2003, the National Tuberculosis Control Program (NTP) reported 40,271 SS+ cases for an incidence rate of 76 cases per 100,000 people, a near doubling of the rate. In Ukraine, significant barriers to implementation of the WHO-recommended Directly Observed Therapy, Short-Course (DOTS) approach to TB existed, a result of entrenched and outdated medical approaches to TB treatment and management. The TB indicators also reflect the deterioration of Ukraine's health care system since the break-up of the Soviet Union in the early 1990s. This break-up facilitated the spread of infectious diseases, including TB and multidrug-resistant TB (MDR-TB), in many former Soviet republics. Ukraine was unable to sustain the previous TB infrastructure and needed new approaches to combat the growing TB problem.”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-118750
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: YARTSEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 1. The applicant, Mr Yevgeniy Borisovich Yartsev, is a Russian national, who was born in 1979 and lived in Irkutsk until his arrest. He was represented before the Court by Mr I. Trunov and Ms L. Ayvar, lawyers practising in Moscow.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Between 30 August 2008 and 15 November 2010 and subsequently between 17 April 2011 and 29 May 2012 the applicant was held in remand prison IZ-38/1 in Irkutsk. According to him, the conditions of his detention were inadequate; the Government disputed that.
5. By the Irkutsk Regional Court’s judgment of 2 March 2010 following a jury trial, the applicant was convicted of forming and leading a criminal syndicate, murder, unlawful possession of weapons and ammunition and armed robbery, and sentenced to nineteen years’ imprisonment in a high-security institution. On 22 September 2010 the Supreme Court of the Russian Federation upheld the judgment on appeal.
6. On 3 March 2010 the web-sites of the Prosecutor General’s Office and the Irkutsk Regional Prosecutor’s Office and the Regions.Ru news portal published information about the conviction of the applicant and his co-defendants. On 12 August 2010 the applicant lodged a defamation claim against the prosecutors’ offices and the news site, alleging in particular a breach of his presumption of innocence. He sought leave to appear in person before the court but his request was rejected. On 21 December 2010 the Tverskoy District Court of Moscow dismissed his claim, finding that the prosecutors had accurately reported the findings contained in the Regional Court’s judgment of 2 March 2010 and that the news items concerned a matter of public interest. The case file does not contain a copy of a statement of appeal or of an appeal judgment.
7. On 9 March 2010 the applicant sent a letter to the Court, containing an outline of his complaints. It was registered under application no. 19987/10 and the applicant was invited to return the completed application form no later than 9 June 2010. As no further correspondence had been received from the applicant for more than six months, his complaints were taken to have been withdrawn and the file opened in respect of the application was destroyed.
8. On 25 February 2011 the applicant’s representative Mr Trunov sent a letter to the Court, indicating that the applicant wished to lodge a complaint under Article 3 of the Convention about the conditions of his detention in the Irkutsk remand prison and the conditions of his transport to the Irkutsk Regional Court, a complaint under Article 5 of the Convention concerning his pre-trial detention and a complaint under Article 6 about alleged irregularities in the criminal proceedings against him and in the subsequent defamation proceedings. This application was given number 13776/11.
9. By letter of 2 March 2011, the Court acknowledged receipt of the letter to the applicant’s representative and informed him as follows (translated from Russian):
“You should return by post the completed application form not later than eight weeks from the date of the present letter. In other words, the date on which you send back the completed application form must not be later than 27 April 2011. Failure to comply with this time-limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application. Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time-limit set out in Article 35 § 1 of the Convention (see para. 18 in the enclosed Notes for Guidance to applicants).”
10. On 7 June 2011 the Court received the completed application form. It was signed by Mr Trunov and Ms Ayvar, the applicant’s representatives, and dated “1 July 2011”.
11. On 12 July 2011 the Court received a letter from the applicant which was dated 22 June 2011. In that letter, the applicant stated his intention to lodge a complaint under Articles 3 and 13 of the Convention about the conditions of his detention in the Irkutsk remand prison in the period after 17 April 2011. On 4 October 2011 the Court received a letter which was identical in its contents but it was dated 13 September 2011 and signed by Ms Pushkareva, the applicant’s representative.
12. By letter of 10 October 2011, the Court informed the applicant that another application in his name had already been registered on the basis of Mr Trunov’s letter of 25 February 2011. The applicant was requested to clarify whether he would like to introduce a new application or to have his communication joined to the existing file. The Court did not receive any reply from the applicant.
13. On 15 September 2011 the Court received an undated letter from Mr Trunov, which referred to application no. 19987/10. He requested in particular priority treatment of the applicant’s case, alleging that his life and health were in danger. On 12 October 2011 the President of the First Section rejected the request.
14. By another undated letter received at the Court on 27 January 2012, Mr Trunov petitioned the Court for a joinder of applications no. 19987/10 and 13776/11 and reiterated his request for priority treatment. On 10 February 2012 the Court advised him that the file opened in respect of application no. 19987/10 had been destroyed and that his renewed request for priority did not contain any new factual information.