ITEMID: 001-98173
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ABDURASHIDOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of P1-1;Violation of Art. 13
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1978. She lived in the village of Solnechnoye in the Khasavyurt district of Dagestan, Russian Federation. Currently she lives abroad after seeking asylum. The applicant is the mother of Summaya (also spelled Sumaya) Abdurashidova, born in 1998.
6. At about 5.30 a.m. on 14 March 2005 approximately fifty men in two APCs (armoured personnel carriers) and a white VAZ 2121 Niva car with the registration plate 008 26 arrived at the applicant's house in Solnechnoye.
7. The men were armed and equipped with portable radio sets. They neither introduced themselves nor produced any documents. The applicant thought that they were State servicemen. It appears that the servicemen arrived to apprehend the applicant's husband and two men who were staying in the house that night. The men broke into the applicant's house and opened gunfire. The applicant's husband shouted to the servicemen: “Do not shoot! There are children in the house.” In spite of the warning the servicemen continued shooting. They took the applicant's husband outside; the applicant's three children remained in their rooms and the applicant was in the corridor.
8. During the shooting the applicant's two sons Bilal (born in 1997) and Ilyas (born in 2002) ran out from their bedrooms into the corridor. At some point Bilal ran out of his sister's bedroom, screaming that Summaya had been wounded and was bleeding. It appears that Summaya Abdurashidova had been hit by a fragment of a rifle grenade.
9. The applicant tried to go into her daughter's room, but the servicemen pushed her outside the house into the yard. When the applicant asked them to let her go inside, the servicemen forbade her under gun point. She was made to lie down on the ground with her hands behind her head.
10. When the shooting was over, their neighbour Mr I.I. went into the house and carried out the body of Summaya Abdurashidova.
11. As a result of the shooting the two men who were staying in the applicant's house were killed, and the applicant's husband was taken to the Department of the Interior of the Khasavyurt district (“the Khasavyurt ROVD”).
12. After the shooting the applicant saw that her house, as well as her family possessions in it, had been damaged by the gunfire. In addition, the family's identity documents, including passports and birth certificates, had been taken away by the servicemen.
13. The applicant submitted that after the shooting, the servicemen had taken away two plastic bags with the applicant's family documents and valuables, including the applicant's golden bracelet and two rings.
14. The applicant's description of the events of 14 March 2005 is based on several undated accounts provided by her to her representatives and on the letters which the applicant sent to the authorities. The applicant also submitted articles published in the newspaper “Druzhba” (Дружба) on 8 April 2005 and on 15 April 2005 and an article published in the newspaper “Niyso-Dagestan” (Нийсо-Дагестан) on 14 April 2005.
15. The Government submitted, with reference to the documents from the criminal investigation file (see below), that the two men who had been at the applicant's house on the night of 14 March 2005 had been suspected of the armed robbery of a woman and of an attack on a serviceman of the traffic police, Mr M.M., who had later died. The crimes had been committed by three persons on 31 December 2004, and on 1 January 2005 the Khasavyurt district prosecutor's office (the district prosecutor's office) opened a criminal investigation into the incident. The investigation was assigned file number 5111. It has been established that during the attack the criminals took hold of M.M.'s police identity document and his PM service pistol with a known serial number.
16. The police obtained information that two suspects, Mr S.Ya. and Mr R.Yu., had found refuge at the applicant's house and that they had stored weapons and armaments there, including the PM pistol. On 14 March 2005 the investigator of the district prosecutor's office decided to carry out an urgent search at the applicant's house with the aim of finding the two suspects and the weapons. Since the suspects could have been armed, the prosecutor had been assisted by servicemen of the Khasavyurt ROVD and of the special police force of Dagestan.
17. Upon arrival at the applicant's house, police officers Mr P.A. and Mr S.O. informed the applicant and her husband about the aim of their visit and suggested that they evacuate the building for their own safety. The applicant, her husband and their two sons Bilal and Ilyas came out of the house. Then the applicant informed the policemen that her daughter Summaya had remained in the house. Mr P.A. and Mr S.O. returned to the house in order to take the child out, but Mr S.Ya. and Mr R.Yu., who had taken refuge in the house, threw hand grenades at them. Both policemen were injured. Their colleagues, in order to cover them, opened gunfire and killed both suspects.
18. After the skirmish was over, the site was inspected by the investigator of the district prosecutor's office and by forensic and medical experts, in the presence of two attesting witnesses. They discovered the bodies of Mr S.Ya. and Mr R.Yu. and of the applicant's daughter, Summaya Abdurashidova. In the room where the two fugitives had been hiding, they also found safety pins from hand grenades and a PM hand pistol with the serial number corresponding to the one stolen from M.M.
19. Shortly after the shooting had ended, experts from the Khasavyurt ROVD took pictures of Summaya Abdurashidova and wanted to take her body to the morgue for an autopsy. The applicant and her relatives refused to give their permission and wrote down an official statement of refusal.
20. From the beginning of her correspondence with the authorities the applicant was assisted by Mr B., head of the local human rights organisation Romashka (Ромашка). The applicant and Mr B. contacted various official bodies, including the Russian President, the Dagestan Government, the Khasavyurt district administration, the mass media and prosecutors' offices at different levels, describing the circumstances of Summaya Abdurashidova's killing and requesting an investigation into the crime. The applicant retained copies of a number of their letters and submitted them to the Court. The relevant information is summarised below.
21. On 16 March 2005 the applicant wrote to a number of the State authorities, including the district prosecutor's office, the Dagestan prosecutor's office and the Prosecutor General. She described the events of 14 March 2005 and requested an investigation into the death of her daughter and prosecution of the culprits. The applicant also complained that her property had been unlawfully destroyed during the special operation and requested compensation for the pecuniary and non-pecuniary damage caused by the actions of the servicemen.
22. In March or April 2005 the applicant informed the Dagestan prosecutor's office that servicemen of the Khasavyurt ROVD had participated in the special operation on 14 March 2005.
23. On 20 April 2005 the Dagestan prosecutor's office informed the applicant that her complaint about unlawful actions of servicemen of the Khasavyurt ROVD during her husband's apprehension had been forwarded to the district prosecutor's office for examination.
24. On 26 April 2005 the district State registry office (ЗАГС) issued a statement confirming the death of Summaya Abdurashidova on 14 March 2005.
25. On 26 April 2005 the Solnechnoye village administration issued a death certificate for Summaya Abdurashidova.
26. On 28 April 2005 the applicant again wrote to the authorities, including the district prosecutor's office, the Dagestan prosecutor's office and the Prosecutor General. In her letter she pointed out that on 16 March 2005 she had already complained about her daughter's killing, but the authorities had failed to initiate a criminal investigation into the death. She requested explanations concerning the reasons for the failure to initiate the investigation and to prosecute the perpetrators.
27. On 17 May and 30 June 2005 the Dagestan prosecutor's office informed the applicant that her complaint about the death of Summaya Abdurashidova had been forwarded to the district prosecutor's office for examination.
28. On 25 May 2005 the Khasavyurt District Court sentenced the applicant's husband to three months' imprisonment for harbouring two criminals. In its judgment the court stated, inter alia, that his “minor daughter Summaya had been killed in the course of a special operation aimed at apprehending the criminals who had been hiding in the house”. The applicant's husband accepted his guilt and did not appeal against the sentence.
29. It appears that Mr B., who had assisted the applicant in the preparation of her complaints to the domestic authorities, was arrested in November 2005 on suspicion of illegal possession of weapons. Following allegations of torture and ensuing public pressure, he was released and acquitted. He left Russia in 2006 and sought asylum in another country.
30. On 15 March 2005 a commission of the administration of Solnechnoye, including the head of the administration, the chief accountant and the applicant's two neighbours, visited the applicant's house. They examined the scene and drew up the following report on damage:
“During the special operation on 14 March 2005 the house ... was practically destroyed; as a result of gunfire and explosions the windows and doors were blown out, the roof was damaged by shots, a powerful blast resulted in cracks in the walls and in the ceiling; the furniture in the living room and in the kitchen, the refrigerator and the TV set were rendered unusable.”
According to the report, the applicant's house was uninhabitable and required major repairs. The report further estimated the cost of repairs at between 650,000 and 800,000 Russian roubles (RUB), without specifying additional details.
31. In response to a specific request from the Court, the Government submitted 26 pages of documents from the criminal investigation files mentioned above. Although this was not marked on many documents, it appears that the Government submitted copies of the decisions to open the criminal proceedings in the cases assigned file numbers 5111, 51151 and 51153.
32. The Government submitted that on 14 March 2005 the district prosecutor's office had opened criminal investigation no. 51151 into the attack on the police officers and the unlawful purchase and storage of arms and ammunition. The investigation was opened in view of the wounding of two policemen, Mr P.A. and Mr S.O. The decision did not mention the suspects' and the applicant's daughter's deaths. The investigation obtained information that Mr S.Ya. and Mr R.Yu. had been involved with illegal armed groups and had fought against the authorities in Chechnya. Thus, on 14 March 2005, the district prosecutor's office opened a new investigation file concerning participation in illegal armed groups, which was assigned number 51153.
33. On 14 March 2005 the investigator of the district prosecutor's office, assisted by medical and forensic experts, in the presence of two witnesses, examined the body of Summaya Abdurashidova. They noted two large open wounds: one measuring 10 cm by 8 cm to the head and one measuring 10 cm by 6 cm to the upper part of the torso. The Government submitted a copy of the expert report. The experts also took photographs; however, as follows from subsequent documents and the Government's submissions, the photographs could not be developed because the film was defective.
34. On 21 March 2005 criminal investigation files nos. 51151 and 51153 were joined and assigned number 51151. The decision did not refer to the death of the applicant's daughter or to the deaths of the suspects.
35. No separate criminal investigation was opened into the applicant's daughter's death. The Government submitted that in the course of the investigation of file no. 51151 the authorities had established that Summaya Abdurashidova had died of splinter wounds caused by hand-grenade explosions. The police officers had not used grenades and had only employed hand guns. The forensic reports on the bodies of Mr S.Ya. and Mr R.Yu. concluded that they had died as a result of bullet wounds. Seeing that no autopsy had been carried out on the body of Summaya Abdurshidova owing to her relatives' refusal to submit it for such an examination, the investigation relied on the description of her body, which referred to splinter wounds. It concluded that her death had resulted from the explosion of hand grenades thrown by the suspected criminals.
36. On 2 April 2005 the criminal proceedings against Mr S.Ya. and Mr R.Yu. were terminated on account of their deaths. The investigation of criminal case no. 5111 continued.
37. On 26 April 2005 the district prosecutor's office took statements from two investigators, medical and forensic experts who had examined the child's body and two attesting witnesses. The Government submitted copies of their testimonies, except for the medical expert's statement and one witness's statement. The forensic expert explained that he had taken photographs of the house, of two male bodies in the courtyard and of the girl's body in the neighbouring house. Once the film was developed, some photographs were spoiled because the film was defective. Thus, no photographs of the girl's body came out.
38. According to the Government, the medical expert stated that he had examined the girl's body in the neighbouring house and noted two large open wounds to the head and upper part of the torso. These wounds could have been caused by splinters from an explosive device. The body had then been transferred to the relatives, who had refused to submit it for an autopsy.
39. The investigator submitted that late at night on 14 March 2005 he had been alerted that the suspects in the murder of Inspector M.M. were hiding in the house of the imam of Solnechnoye. Early in the morning he went to the scene, accompanied by servicemen of the Khasavyurt ROVD and of the special police unit of Dagestan. They also invited two witnesses residing in Khasavyurt, Timur E. and Murat. Once at the house, the servicemen surrounded the house. After that the police ordered everyone to leave the house. A woman, a man and two children came out into the entry hall and the police led them outside the house. The woman said that another child remained in the house. Two servicemen of the special police unit entered the house and immediately afterwards there came the sound of explosions. Several policemen ran to the house and started to shoot in order to cover up their colleagues. The persons taking refuge in the house fired back and threw hand grenades, some of which exploded outside the house, and some inside the house. As soon as the two policemen were led out of the building, other servicemen shot at the doors and windows of the house with machine guns and automatic rifles. When the shooting from inside the house subsided, the policemen went in and brought out two male bodies. They said that there was a child's body in the house. A neighbour walked in and carried the body to the nearby house. Then the body was examined by the officials from the prosecutor's office, in the presence of two witnesses. They noted two large open splinter wounds – one to the front of the head and another near the shoulder blade. The investigator added that the police had not used hand grenades; they had fired from machine guns and automatic rifles. The investigator also answered a number of questions concerning the missing property and identity documents and the damage caused to the applicant's house. He stated that they had collected and seized two yellow rings and the applicant's passport. No other documents or valuables had been found or seized. As to the state of the house, the investigator specified that the window glazing, furniture and parts of the roof had been damaged. The walls had not been damaged. Some parts of the house were in any event unfinished and were not inhabitable. The state of the house could be ascertained from the photographs taken immediately after the attack.
40. Another investigator, a member of the team working on M.M.'s murder, stated that he had arrived at the applicant's house at about 9 a.m. on 14 March 2005. There he was instructed to examine the child's body, together with the criminal and forensic experts. They noted two large wounds, caused by splinters from an explosive device. The mother of the child refused to submit the body for an autopsy and signed a document to that effect. After the body was examined, the relatives took it for burial. The criminal expert later informed the investigator that the film had been defective and no photographs could be developed.
41. The witness Marat G. stated that he and his friend Timur E. had been doing their morning jogging when the police asked them to be witnesses to a search in Solnechnoye. When the two men arrived at the house, it was surrounded by police. They saw a man, a woman and two children come out, accompanied by servicemen. The woman said that another child remained in the house. Two police officers went in and there followed several explosions. Then several more policemen ran to the house and the witnesses were taken away to a safe distance, from where they could not see the house. They could hear shots being fired and explosions. Once the shooting was over, the witnesses were invited by the investigator to be present during the search. In front of the house there were two male bodies. Someone brought out a child's body, which was taken to the neighbouring house. The investigator found and seized two yellow rings and a woman's passport. The investigator also noted and seized a number of safety pins from hand grenades and empty cartridges, as well as a hand pistol. The rooms were first inspected by a bomb expert and then by the investigators and witnesses. The house was partially damaged, but the load-bearing walls and the roof were intact. Some rooms were unfinished. The Government submitted a copy of Marat G.'s testimony and stated that Timur E. had made similar statements.
42. In their observations the Government extensively cited an undated statement by Mr A.A., the head of the criminal investigation department of the Khasavyurt ROVD, no copy of which has been submitted. According to the Government, Mr A.A. stated that the department had been tipped off about the location of the suspects in M.M.'s murder. Early in the morning on 14 March 2005 he had arrived at the applicant's house, accompanied by servicemen of the special police force. The servicemen surrounded the house. One serviceman of the special police force walked up to the house and knocked on the door. He was let inside. About one minute later he came out of the house, together with a man, a woman and two children. The woman said that a third child remained in the house. She wanted to return to the house, but was not allowed to. Two servicemen of the special police force went to the house in order to retrieve the child. As soon as they had gone in, there came the sounds of explosions. Several more servicemen ran to the house to help their colleagues. They were shot at from inside the house and more grenades were thrown. The two wounded policemen were assisted in leaving the house, and the servicemen shot at the windows and doors of the house. The policemen were not equipped with grenades. When the shooting from inside the house subsided, several policemen went into the house. They found the bodies of two men and a girl. The male bodies were taken into the courtyard. A local resident took out the child's body and took it to the neighbouring house. Mr A.A. was told by his colleagues that the body had two large splinter wounds. An expert in explosives examined the house, following which an investigator conducted a search in the presence of two witnesses. Mr A.A. also stated that he had seen the seized pistol with the serial number corresponding to that taken from M.M. and a number of empty cartridges. The investigators put them in bags and sealed off the courtyard of the house.
43. The Government submitted a note dated 14 March 2005, in which Mrs Raisa Ya. stated that the family had refused to submit the body of Summaya Abdurashidova for an autopsy with the aim of establishing the cause of her death. The note stated that the family knew the cause of the child's death and that they wanted to proceed with the burial in accordance with religious rites.
44. The Government submitted an undated note signed by the applicant to the effect that she had received from the investigator of the district prosecutor's office two golden rings and her passport, which had been seized at her house on 14 March 2005.
45. The Government also submitted a number of letters sent by the district prosecutor's office to the applicant. On 4 April 2005 the investigator informed the applicant that the investigation had established that her daughter had died as a result of grenade explosions caused by S.Ya. and R.Yu. The criminal proceedings against the two men had been terminated on account of their deaths. Two rings had been returned to the applicant. She could seek compensation for other damage through the Khasavyurt District Court. The decisions of the investigators could be appealed against to a higher-ranking prosecutor or to a court.
46. From the documents submitted it does not appear that the investigators attempted to take statements from the applicant, her husband or their neighbours.
47. The Government stated that the investigation of criminal case file no. 5111 was in progress and that disclosure of other documents would be in violation of Article 161 of the Code of Criminal Procedure, since the files contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.
48. On 14 June 2005 the applicant complained to the Khasavyurt District Court of Dagestan (“the district court”) about the destruction of her property during the special operation conducted on 14 March 2005 and the failure of the authorities to initiate criminal proceedings into the death of Summaya Abdurashidova. She sought a ruling obliging the district prosecutor's office to initiate an investigation into the crime and to prosecute the perpetrators.
49. On 2 August 2005 the district court refused to examine her complaint. It stated that the applicant was entitled to appeal against actions of the district prosecutor's office only within the course of an ongoing criminal investigation or that she could appeal against the authorities' refusal to initiate criminal proceedings. The court pointed out that she had failed to submit any evidence of an ongoing criminal investigation or of the authorities' refusal to initiate criminal proceedings.
50. The applicant did not appeal against that decision.
51. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).
VIOLATED_ARTICLES: 13
2


ITEMID: 001-81352
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF HARUTYUNYAN v. ARMENIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-1 (other complaint);Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa
TEXT: 4. The applicant was born in 1980 and lives in Yerevan.
5. On 25 June 1998 the applicant was drafted into the army and assigned to military unit no. 33651, situated next to the border with Azerbaijan.
6. On 3 December 1998 the applicant, together with five fellow servicemen, was placed on watch in position no. 24.
7. On 4 December 1998 one of the six watchmen, serviceman H., was found dead in a nearby trench, having been killed by a machine-gun shot. At the time of the killing, only three of the remaining five watchmen were in the area of position no. 24, namely the applicant and servicemen T. and A. The latter two were apparently cutting wood together not far from the position. It appears that the applicant had been seen to have an argument with H. earlier that day.
8. On 4 March 1999 servicemen T. and A. were brought to a military police station. On 5 March 1999 the applicant was also brought to the same police station. The military police officers started to beat them, seeking to force them to confess to serviceman H.’s murder. According to the applicant, they told the police officers that serviceman H. must have been shot from the other side of the border, to which the officers replied that it had already been established that serviceman H. had been killed at close range, and continued to beat them.
9. The applicant was initially punched and kicked. The police officers then began to hit him with rubber clubs. The applicant lost consciousness on several occasions but was revived and continued to be beaten. After a while the police officers began to squeeze the applicant’s fingertips with pliers. The same torture techniques were applied to servicemen T. and A.
10. On 5 March 1999 serviceman T. confessed to the investigator that he had witnessed how the applicant had taken his machine gun and shot H. Since serviceman A. was with serviceman T. at the time of the murder, he was coerced into making a statement to the effect that serviceman T. had told him that he had witnessed the murder.
11. The police officers subsequently continued to torture the applicant, forcing him to confess to the murder. According to the applicant, this continued for over a month. He was unable to walk and talk properly, and all his fingertips were swollen.
12. On 16 April 1999 the applicant was interrogated as a suspect by the investigator examining the case, to whom he confessed that he had accidentally shot serviceman H.
13. On 17 April 1999 the applicant was formally charged with premeditated murder and questioned as an accused by the investigator; during this interview he repeated his confession. Thereafter he was taken to the crime scene, where he made the same statement in front of a video camera and the relevant record was drawn up. On the same date the applicant was placed in pre-trial detention.
14. According to the applicant, immediately after their release from the police station on an unspecified date, servicemen T. and A. informed the Military Prosecutor of Armenia (ՀՀ զինվորական դատախազ) in writing that they had been coerced into slandering the applicant.
15. On 19 June 1999 the applicant and servicemen T. and A. were subjected to medical examinations, during which various injuries to their fingers and A.’s head were noted.
16. On 11 August 1999 a confrontation was held between the applicant and serviceman T., during which the latter confirmed his earlier testimony against the applicant.
17. On an unspecified date, the applicant’s criminal case was brought before the Syunik Regional Court (Սյունիքի մարզի առաջին ատյանի դատարան).
18. On 26 October 1999 a hearing was held during which serviceman T. confirmed his earlier testimony against the applicant.
19. On 6 December 1999 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to thirteen years’ imprisonment.
20. On 15 June 2000 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) quashed this judgment and remitted the case for additional investigation.
21. On 12 September 2000, following the additional investigation, the case was brought again before the Syunik Regional Court.
22. On 13 June 2001 the Syunik Regional Court decided to remit the case for further investigation.
23. On 3 August 2001 the Criminal and Military Court of Appeal quashed this decision on an appeal by the prosecutor and remitted the case to the Syunik Regional Court for examination on the merits.
24. In the proceedings before the Syunik Regional Court, the applicant’s lawyer asked that the applicant’s confession statements of 16 and 17 April 1999 and the statements made by witnesses T. and A. during the investigation in 1999 be declared inadmissible, since they had been obtained under torture. By that time criminal proceedings had already been instituted against the relevant military police officers on account of the torture of the applicant and servicemen T. and A.
25. On 19 June 2002 the Syunik Regional Court found the applicant guilty of premeditated murder and sentenced him to ten years’ imprisonment. The sentence was to be calculated from the first day of the applicant’s detention on 17 April 1999. In its judgment, the Regional Court stated that “[T]he following ha[d] been established during the court examination” and went on to describe the circumstances in which the applicant had shot serviceman H. The Regional Court then stated:
“For these actions [the applicant] was charged [with premeditated murder].
During ... questioning on 16 April 1999 [the applicant] admitted to the investigating authority that [serviceman H.] had died from a bullet accidentally shot from [the applicant’s] machine gun.
On 17 April 1999 during questioning as an accused he again admitted that [serviceman H.] had died from a bullet which had been shot by [the applicant] as a result of a violation of the rules for the handling of weapons.
[The applicant] confirmed this statement during the re-enactment of the circumstances of the incident [on 17 April 1999], the video recording of which has been examined during the court proceedings.
[The applicant] later revoked this confession.
During the court proceedings [the applicant] pleaded not guilty and stated that he had not killed [serviceman H.]; they had not had an argument on the day of the incident, they had not sworn at each other, he was unaware of the circumstances of [serviceman H.’s] death, and his confession had been made under the influence of the violence and threats inflicted on him by the [police officers].
Such arguments [by the applicant] are unfounded, contradict the evidence obtained during the court examination and cannot serve as a basis for avoiding criminal liability and punishment.
[The applicant’s] ... arguments have been rebutted and his commission of the offence has been proven by the following evidence obtained during the court examination: ...”
26. As an example of such evidence, the Regional Court went on to cite the statement made by witness T. on 5 March 1999. It further stated:
“[Witness T.] made the same statement before the Syunik Regional Court at [the hearing of 26 October 1999].
During the investigation [witness T.] confirmed this statement at a confrontation with [the applicant on 11 August 1999]. Thereafter [witness T.] revoked this statement and submitted that he had not witnessed the circumstances in which [serviceman H.] had been killed. He also made a similar statement during this court examination, indicating that his statement about witnessing the killing of [serviceman H. by the applicant] had been made under the influence of the violence inflicted on him by the [police officers].
A similar statement was also made by [witness A.].”
27. The Regional Court went on to cite a number of circumstantial and hearsay witness statements and an expert opinion to the effect that the shot had been fired at close range, and concluded that:
“Having evaluated the contradictory statements made by [witnesses T. and A.] during the investigation and the court examination, the court finds that in reality the coercion was applied by [the police officers] at the military police station for the purpose of ensuring disclosure of the truth.
... The revocation at a later stage by [witness T.] of his [statements made during the investigation] was aimed at helping [the applicant] to avoid criminal liability. The fact that [witness T.] was aware of the circumstances of [serviceman H.’s] death was confirmed by the unconstrained submissions he made at the [court hearing of 26 October 1999], without being subjected to any ill-treatment or threats, and the stories he told to [two fellow villagers] following his demobilisation.”
28. The Regional Court concluded by citing other evidence substantiating the applicant’s guilt, such as (i) a forensic examination of the victim’s tissue samples and a medical examination of his corpse, according to which he had died from a shot fired at close range; (ii) a ballistic examination, to the effect that the shell found at the crime scene had been fired from AK-74 type machine gun no. 916236, which had been issued to the applicant; (iii) the record of examination of the crime scene, drawn up on 17 April 1999, and a number of other materials.
29. On 9 October 2002 the Avan and Nor Nork District Court of Yerevan (Երևան քաղաքի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) found military police officer M. and three other police officers guilty of abuse of power and imposed sentences ranging from three to three and a half years’ imprisonment. The District Court found:
“On 4 March 1999, in connection with the murder of [serviceman H.], ... [police officer M.] brought [servicemen A. and T.] and others to the military police station. On 5 March 1999 [the applicant was also brought to the station]. There [the police officers] beat them for several days, delivered numerous blows to [the applicant] and others with a rubber club and squeezed their fingertips with pliers, causing injuries of various degrees. Then [the police officers] forced them to take off their shoes, put their hands on the backs of their heads and get down on their knees, and started to club their soles. By threatening to continue the ill-treatment, [the police officers] forced [the applicant] to confess that he had murdered [serviceman H.], [serviceman T.] to state that he had witnessed that murder, and [serviceman A.] to state that he was aware of the murder. [The police officers] also threatened the victims with retaliation if they informed any higher authority about the ill-treatment ...
On 5 January 2000, in his office in the military police department in Yerevan, [police officer M.] forced [serviceman A.] to state in relation to the ill-treatment that he was not familiar with [police officer M.], that nobody had beaten him and that the injuries on his fingers had been sustained as a result of his hand being squashed by a car door ...
The systematic, unprecedented, essentially cruel and degrading actions inflicted by [the police officers on the applicant and others], which had the attributes of torture, entailed grave consequences in that such actions violated the legally guaranteed rights and interests of [the] servicemen ...”
30. This judgment was based on various witness statements, including those of the applicant and servicemen T. and A., and the results of the medical examinations.
31. In his witness statement, the applicant submitted, inter alia, that he had been detained until the end of March 1999 in the military police station, where he was regularly beaten. At the end of March 1999 he was transferred to a military prosecutor’s office but then brought back to the police station on 10 April 1999. On his return journey, police officer M. threatened him with retaliation if he refused to confess. On the same day another police officer also threatened him, but promised to qualify the offence as accidental if the applicant agreed to confess; after this the applicant made his confession statement.
32. In his witness statement, serviceman A. submitted, inter alia, that after testifying to the investigator, he and serviceman T. were kept in the canteen of the police station for about a month. At the beginning of April, police officer M. called him and serviceman T. and demanded that, when questioned by the investigator, they tell him that they had not been beaten or ill-treated in the police station, and that the injuries on their fingers had been sustained as a result of their fingers being squashed by a car door. On 5 January 2000 police officer M. threatened to kill him if he informed the investigator about the ill-treatment.
33. In his witness statement, serviceman T. submitted, inter alia, that on 30 November 1999, under pressure from police officer M., he had testified to the investigator that nobody had beaten him.
34. On an unspecified date the applicant’s lawyer lodged an appeal against this judgment.
35. On 14 November 2002 the Criminal and Military Court of Appeal refused to examine the appeal since, according to the domestic law, a victim in criminal proceedings had the right to appeal only if the proceedings had been instituted on the basis of his or her complaint.
36. On 26 December 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) upheld this decision.
37. On an unspecified date the applicant lodged an appeal against his conviction of 19 June 2002.
38. In the proceedings before the Criminal and Military Court of Appeal, the applicant submitted that he was not aware of the circumstances of serviceman H.’s death and that he had been coerced into making his confession statement.
39. Witness T. submitted that he had not seen who had killed serviceman H., since he and witness A. had been absent at the material time. He further submitted that the statement made by him during the preliminary investigation, to the effect that he had witnessed the murder, was untrue and that he had been forced to make it. Immediately after the incident all five servicemen had agreed to say that serviceman H. had been killed by an Azeri sniper, but in reality he knew nothing about the circumstances of H.’s death. Witness A. made similar submissions.
40. On 1 April 2003 the Criminal and Military Court of Appeal decided to uphold the applicant’s conviction. In doing so, the Court of Appeal found that the above submissions were made as a result of collusion between the applicant and the witnesses, aimed at helping him to avoid criminal liability. These submissions were rebutted by the evidence obtained in the case, such as:
(a) The applicant’s confession of 16 April 1999 to the investigator. Later and in court the applicant had revoked this statement, as having been made under coercion, but had failed to indicate the details of any coercion applied to him in the investigator’s office.
(b) Submissions by witnesses T. and A. to the Syunik Regional Court at the hearing of 26 October 1999, to the effect that one of them had witnessed and the other was aware of the murder. Witnesses T. and A. had later revoked these submissions but accepted that no coercion had been applied to them in court and that these submissions, albeit untrue, had been made voluntarily.
(c) Other circumstantial and hearsay witness statements, the relevant expert opinions, various records and the video recording.
41. The Court of Appeal concluded by statfor the charges and had not been used as evidence.
42. On 14 April 2003 the applicant’s lawyer lodged an appeal. He argued, inter alia, that the applicant’s confession statement of 16 April 1999, and the record and the video recording prepared at the crime scene on the following day, had been made as a result of the beatings, ill-treatment and threats inflicted on the applicant, and could not therefore be used as evidence against him. Furthermore, the Court of Appeal should not have relied on the submissions made by witness T. at the very early stage of the proceedings, including the hearing of 26 October 1999, to justify the credibility of his first accusatory statement, made under torture. These submissions had been the result of the fear experienced by witness T. following the unprecedented violence inflicted on him. He had been under constant pressure from the investigators, having been detained on several occasions, and at the time of the above-mentioned hearing he had not yet been demobilised and was afraid of being taken back into custody and subjected to ill-treatment again. As an example of witness T.’s fear of telling the truth, the applicant’s lawyer referred to T.’s testimony of 30 November 1999, in which he had submitted that the injuries to his fingers had been sustained as a result of his fingers being squashed by a car door. For the last three years, however, since he had revoked his earlier statements, witness T. had been insisting that he was not aware of the circumstances of serviceman H.’s death. Finally, the applicant’s lawyer argued that, contrary to what had been indicated in the Court of Appeal’s judgment, witness A. had never made any accusatory submissions against the applicant during the court examination of the case. On the contrary, he had always insisted that witness T. could not have witnessed the murder since they had been together at the material time.
43. On 8 May 2003 the Court of Cassation dismissed the lawyer’s appeal and upheld the Court of Appeal’s judgment. In doing so, the Court of Cassation found, inter alia, that:
“The conclusions in the judgment are corroborated by the evidence examined in court, in particular, statements by [witnesses T., A. and others, and the results of various expert opinions].
... It has been established that after the incident [servicemen T. and A., the applicant and others] agreed ... to testify that [serviceman H.] had been killed by [the Azeris], nevertheless, [serviceman T.] testified in the first-instance court on 26 October 1999 that [serviceman H.] had been killed ... by [the applicant].
The arguments of [the applicant’s] lawyer that the judgment was based on statements by [witnesses T. and A.] which had been obtained under torture are groundless, contradict the materials of the case and are rebutted by the following evidence.
[The applicant and witnesses T. and A. were beaten for several days by the police officers] who demanded that they make honest statements concerning the murder of [serviceman H.]. The police officers did not take any statements from them. The statements were taken by the relevant investigator from the military prosecutor’s office, who did not ill-treat them ...
[The relevant police officers were convicted]. No criminal proceedings were brought against any of the investigators dealing with the case.
... On 11 August 1999 a confrontation was held between [the applicant and serviceman T. in the presence of the applicant’s lawyer], during which [serviceman T.] contended that [serviceman H.] had been killed with a machine gun [by the applicant]. It has been established that no ill-treatment was inflicted on him at that time.
At a later stage [serviceman T.] revoked the above statements and submitted that he had not seen who had killed [serviceman H.], although he did not deny that on several previous occasions he had submitted that it was [the applicant] who had killed [serviceman H.]. The Court of Appeal rightly considered [T.’s] confession statement as reliable and regarded it as proof of [the applicant’s] guilt.
During the preliminary investigation [the applicant] testified to the investigator from the military prosecutor’s office that it was he who had killed [serviceman H.], albeit accidentally.
Thus, irrespective of the fact that during the preliminary investigation the military police officers ill-treated [the applicant and witnesses T. and A.], the evidence obtained in the case, if evaluated from the perspective of relativity and admissibility, is sufficient in its entirety to convict [the applicant] of the incriminated crime.”
44. On 22 December 2003 the applicant was released on parole.
45. The relevant provisions of the Code of Criminal Procedure (ՀՀ քրեական դատավարության օրենսգիրք) read as follows:
“In the course of criminal proceedings no one shall be subjected to torture and to unlawful physical or mental violence, including such treatment inflicted through the administration of medication, hunger, exhaustion, hypnosis, denial of medical assistance and other cruel treatment. It is prohibited to coerce testimony from a suspect, accused, defendant, victim, witness and other parties to the proceedings by means of violence, threat, trickery, violation of their rights, and through other unlawful actions.”
“No one shall be obliged to testify against himself ...”
“The following materials cannot constitute the basis for charges and be used as evidence in criminal proceedings: (1) materials obtained under violence, threat, trickery, humiliation of a person, and through other unlawful actions ...”
“The inadmissibility of factual data as evidence, and the possibility of their limited use in the proceedings, shall be established by the examining authority of its own motion or upon the request of a party.”
“Evidence obtained in the case must be thoroughly and objectively examined: it must be analysed, compared with other evidence, new evidence must be collected, and its sources must be verified.”
“A judgment shall be composed of introductory, descriptive-motivational and concluding parts.”
“The descriptive-motivational part of a judgment shall contain: (1) the content of the accusation; (2) the court’s conclusions with regard to tested and the defendant’s guilt; (3) the evidence on which the court’s conclusions are based; and (4) the legal provisions on which the court relied in reaching its decision.”
46. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides:
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23375
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BORGHI v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mario Borghi, is an Italian national who was born in 1964 and lives in Ozieri.
In 1996 four prostitutes, X, Y, V and Z, lodged a criminal complaint, alleging armed robbery, and gave the police information which they claimed would enable them to identify those responsible. After a police investigation proceedings were instituted against the applicant and two other persons, A and B. Among other offences, the applicant, a carabinieri officer, was charged with trafficking in soft drugs (hashish) and hard drugs (heroin), fraud, forgery, receiving and a number of counts of armed robbery and abuse of a public office.
During the preliminary inquiries A and B made confessions, stating that the applicant was the person who had committed the armed robberies with them. W, a client of the prostitutes, identified the applicant as one of their assailants.
In a decision of 27 December 1996 the Sassari judge responsible for preliminary investigations committed A, B and the applicant for trial in the Sassari District Court.
A hearing at which W was due to give evidence was fixed for 24 April 1997. Having received a number of threats by telephone, W had installed a system for recording calls onto audio cassettes. In the evening of 23 April 1997 the applicant rang W. A detective sergeant friend of W who was at his home at the time of the incoming call, suspecting that it might contain threats to the witness, switched on the recording apparatus.
The hearing scheduled for 24 April 1997 did not take place because one of the two parties did not appear. W at first kept the cassette at his home and then, a few days later, decided to give it to the police, who seized it. W gave evidence at a public hearing on 22 May 1997 and a transcript of the conversation of 23 April 1997 was added to the judge’s file. The applicant challenged the production of the transcript, asserting that it was the result of illegal and unauthorised telephone tapping. However, his arguments were rejected on the ground that the cassette had never been listened to by the detective sergeant, who had done no more than switch on the recording apparatus. W, who enjoyed the right to keep his communications secret, had then freely decided to give the cassette to the police. Accordingly, there had been no “telephone tapping” within the meaning of Articles 267 to 271 of the Code of Criminal Procedure (“the CCP”); the transcript was a document created by a private individual who had authorised it and produced it legitimately during the trial.
In the course of the proceedings it was established that X, Y, V and Z were now untraceable. Accordingly, on 22 May 1997, the District Court, having taken formal note of the parties’ agreement on the point, ordered the statements the witnesses concerned had made to the police to be added to the judge’s file (Article 512 of the CCP). A and B declared that they wished to exercise their right under Article 210 of the CCP to remain silent. Pursuant to Article 513 § 1 of the CCP, the statements they had made before the trial were also added to the file and used when the court determined the merits of the charges against the applicant.
At a later hearing the applicant challenged the production of the records of the statements made by three of the prostitutes, X, Y and Z, observing that it had been entirely foreseeable that they would be tempted to make themselves scarce. The court dismissed the applicant’s objection, noting that the prostitutes had given addresses in Italy where they could be contacted and that there was nothing to suggest that they would become untraceable. Moreover, the applicant had not immediately objected to the inclusion in the file of the statements he now sought to challenge, so that he was estopped from objecting to their use.
In a judgment of 5 December 1997 the Sassari District Court sentenced the applicant for armed robbery, trafficking in soft drugs (hashish), fraud, forgery and abuse of a public office to six years’ imprisonment and a fine of 4 million Italian lire (approximately 2,065 euros). It acquitted him of trafficking in hard drugs (heroin) and receiving, and of one count of abusing a public office.
The judgment was based on the statements by A and B, which were held to be precise, credible and corroborated by other evidence. In particular, the applicant, A and B had been recognised by some of the victims, and the version of events given by the women matched the evidence of the applicant’s two co-defendants. In addition, W had identified the applicant and, as appeared from the transcript of the telephone conversation on 23 April 1997, the latter had unlawfully tried to bring pressure to bear on his accuser. Admittedly, the applicant had pleaded that W’s evidence had been unlawfully admitted, since he should have been considered a co-defendant, not a witness, but the District Court held that it had not been established that W had been guilty of obscene behaviour in a public place. Lastly, a security guard had seen a car identical to the applicant’s near the place where one of the armed robberies had been committed, and it had been established, on the basis of evidence given at the trial and his own partial admissions, that the applicant had paid for certain goods with a cheque stolen from one of the victims.
The applicant appealed, contesting the credibility of the prosecution witnesses. He repeated his objections concerning the unlawfulness of admitting in evidence the conversation with W and the prostitutes’ statements.
In a judgment of 21 October 1998 the Cagliari Court of Appeal upheld the first-instance judgment. It repeated, for the most part, the reasoning of the Sassari District Court and observed that at the hearing on 22 May 1997 the applicant had accepted the reading out of the prostitutes’ statements and had thus implicitly waived any objection to their use.
The applicant appealed on points of law, arguing in particular that his co-defendants’ statements had not been credible and that the recording of the conversation on 23 April 1997 had amounted to unauthorised and therefore illegal telephone tapping.
On 14 September 1999 the applicant, as he was entitled to do by virtue of Law no. 14 of 19 January 1999, requested application of a sentence negotiated with the Principal Public Prosecutor at the Court of Cassation. At the same time he withdrew all his grounds of appeal.
In a judgment of 29 September 1999, the text of which was deposited with the registry on 5 November 1999, the Court of Cassation reduced the applicant’s sentence to four years and six months’ imprisonment and a fine of 3 million lire. It observed that the applicant and the prosecuting authorities had reached an agreement about the appropriate sentence and that examination of the decisions at first and second instance had not revealed any circumstance warranting the applicant’s acquittal.
...
In the version in force at the material time, Article 512 of the CCP provided:
“At the request of one of the parties, the judge shall order to be read in court documents resulting from enquiries by the police [or] by the representative of the prosecuting authorities ... where, on account of unforeseeable events or circumstances, [those enquiries] can no longer be repeated.”
Article 513 § 1 of the CCP, as amended by the Constitutional Court’s judgment no. 60 of 24 February 1995, read as follows:
“Where the defendant ... refuses to answer questions, the judge, at the request of one of the parties, shall order to be read in court records of the statements made by the defendant to the representative of the prosecuting authorities [or to the police acting on the instructions of the prosecuting authorities] ... during the preliminary investigation...”
As a consequence of being read out the documents and statements referred to in Articles 512 and 513 of the CCP are added to the judge’s file and may be used for assessment of the merits of the charges.
By means of the Constitutional Amendment Act no. 2 of 23 November 1999 the Italian parliament added the principle of a fair trial to the Constitution itself. Paragraphs 3, 4 and 5 of Article 111 of the Constitution, as now worded, provide:
“3. In criminal proceedings, the law shall guarantee that the person accused of an offence is informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial.
4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. An accused’s guilt cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer.
5. Rules shall be made governing the circumstances in which adversarial examination of the evidence is to be dispensed with, either because the accused has consented or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.”
Section 3 of Law no. 14 of 19 January 1999 provides that where an appeal on points of law is pending in criminal proceedings in which a Court of Appeal gave judgment before 31 January 1999 the Principal Public Prosecutor at the Court of Cassation and the defendant may agree on the acceptance, in whole or in part, of some of the grounds of appeal, provided that the other grounds are withdrawn. Where acceptance of the grounds of appeal which the defendant has not withdrawn has a bearing on the severity of the sentence, the parties are required to inform the Court of Cassation what sentence they have agreed upon.


ITEMID: 001-72680
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VAN GLABEKE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award
JUDGES: András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze
TEXT: 4. The applicant was born in 1946 and lives in Roubaix.
5. On 21 March 2002 the applicant was arrested by the police on the public highway and taken in the course of the evening to Lommelet de Saint-André Psychiatric Hospital, where she was compulsorily admitted at the request of a third party.
The Government submitted that the applicant had been “picked up” on the public highway by a police officer who had asked for her to be admitted to hospital. They added that her admission had been ordered on the basis of two medical certificates issued by different doctors to the effect that she required hospital treatment.
The applicant disputed that account and stated that she had been arrested while cycling to the shops and taken to the police station, where she had promptly been examined by a doctor who had been requisitioned to draw up a medical certificate for her admission to hospital.
6. She submitted that after her admission at the hospital she had immediately been undressed and made to lie down with all four limbs attached to the bedposts in a seclusion cell, without being given any explanation. She had not undergone a medical examination on arrival but had been injected with unknown substances. She had remained in that position for five days, and was released only briefly at mealtimes.
7. She remained in the hospital until 8 April 2002, without being allowed to receive visits or to make or receive telephone calls.
8. In the meantime, on 23 March 2002, the applicant's mother applied by registered letter to the President of the Lille tribunal de grande instance for her daughter's immediate discharge. The parties have been unable to establish the date on which the letter was received. However, in a letter of 8 April 2002, Lille State Counsel replied that he was not empowered to deal with the subject matter of her correspondence and that her daughter was required to apply directly to him to be discharged.
On 28 March 2002 Afcap in turn applied to the President of the Lille tribunal de grande instance for the applicant's immediate discharge.
9. On 22 April 2002 State Counsel's Office decided to take no further action on that application as it was devoid of purpose.
10. Neither the President of the Lille tribunal de grande instance nor the judge responsible for matters relating to personal liberties and detention (juge des libertés et de la détention – “the liberties and detention judge”) ever gave a ruling on the applications.
11. The following provisions of the Public Health Code are relevant to the present case:
“Persons who have been admitted to hospital without their consent or have been detained in any public or private institution for patients being treated for mental disorders, or their guardian if they are minors, their guardian or adviser if they are above the age of majority and a court order for such appointment has been made, their spouse or cohabitant, a parent or a person capable of acting in their interests or, where appropriate, a court-appointed adviser in relation to personal welfare may appeal at any time by means of an application to the President of the tribunal de grande instance for the judicial district in which the institution is situated, who, in his capacity as urgent-applications judge, shall, after hearing representations from each party and carrying out the necessary checks, order their immediate discharge where appropriate.
An appeal to the same effect may be lodged by a person who has requested the patient's compulsory admission or by State Counsel, of his own motion.
The President of the tribunal de grande instance may also of his own motion make an order at any time for the discharge of a person who has been compulsorily admitted to hospital. To that end, any interested parties may bring to his attention any information they consider useful about the patient's circumstances.
N.B. Section 49 XI of Law 2000-516 of 15 June 2000 amends Article L. 351 of the Public Health Code as follows: in the first paragraph, 'President' is replaced by 'liberties and detention judge'; at the start of the last paragraph, 'President of the tribunal de grande instance' is replaced by 'liberties and detention judge'. This amendment has not been inserted into the wording of the new Article L. 3211-12 of the Public Health Code (former L. 351), as resulting from Ordinance no. 2000-548 of 15 June 2000.”
“A person with a mental disorder cannot be admitted to hospital without his consent at the request of another unless
(1) his disorder makes it impossible for him to consent; and
(2) his condition requires immediate treatment and constant monitoring in a hospital environment.
An application for compulsory admission may be made either by a member of the patient's family or by a person capable of acting in his interests, but not by any medical personnel serving in the institution in question.
The application must be handwritten and signed by the person making it. If the person is unable to write, the application shall be received by the mayor, the police superintendent or the director of the institution, who shall take formal note of it. It shall contain the surname, forenames, profession, age and home address both of the person making the application and the person whose admission is being requested, together with an indication of the nature of the relationship between them and, where relevant, their degree of kinship.
The application for admission shall be accompanied by two detailed medical certificates issued less than fifteen days previously, attesting that the conditions laid down in the second and third paragraphs above are satisfied.
The first medical certificate may be issued only by a doctor not practising in the institution to which the patient is to be admitted; he shall observe the person's mental state, indicate the particular features of his disorder and explain the need for his compulsory admission. It must be confirmed by a certificate issued by a second doctor who may practise in the institution to which the patient is to be admitted. The two doctors shall not be related by blood or marriage, up to the fourth degree inclusive, either to each other or to the directors of the institutions referred to in Article L. 32221, or to the person making the application or to the person whose admission is being sought.”
“A person admitted at the request of another to an institution referred to in Article L. 3222-1 shall likewise cease to be detained there as soon as his discharge is requested by:
...
(3) if the person is unmarried, the ascendants;
...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-104975
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BOGUSŁAW KRAWCZAK v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1952. He is currently detained in Czerwony Bór Prison.
6. On 12 January 2005 the applicant was arrested in Poland and charged with trafficking large amounts of drugs from Venezuela.
7. On 14 January 2005 the Gdańsk District Court (Sąd Rejonowy) remanded him in custody. The decision was upheld on 18 April 2005 by the Gdańsk Regional Court (Sąd Okręgowy).
8. In its decision to detain the applicant, the District Court relied on a reasonable suspicion that the applicant had committed the aforementioned offence. It attached particular importance to the likelihood that a severe sentence of imprisonment would be imposed on the applicant and to the risk that he would attempt to obstruct the proceedings.
9. The applicant’s pre-trial detention was subsequently extended by decisions of the Gdańsk Regional Court given on 22 March 2005 (upheld by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 27 April 2005), on 23 June 2005, on 15 September 2005 (upheld by the Gdańsk Court of Appeal on 11 October 2005), on 13 January 2006 and on 18 April 2006 (upheld by the Gdańsk Court of Appeal on 26 April 2006).
10. In its decisions extending the applicant’s detention, the Regional Court observed that it had been necessary to extend the pre-trial proceedings in order to obtain translations of certain relevant case documents from Spanish into Polish, to hear new witnesses and to supplement the original charges. It took into account the fact that the applicant had a handicapped mother, but concluded that she had been receiving adequate care and, therefore, that there were no special reasons, family-related or other, militating against the applicant’s detention.
11. On 17 June 2005 the bill of indictment was lodged with the Gdańsk Regional Court.
12. On 6 October 2005 the Gdańsk Regional Court dismissed the applicant’s request for release, finding that the initial grounds for his detention continued to apply.
13. On 28 December 2006 the Gdańsk Court of Appeal extended the applicant’s detention, restating the grounds initially invoked for the detention order. It emphasised that the offence with which the applicant had been charged had been committed in an organised criminal group. Consequently, the court took the view that detention on remand constituted the only measure capable of securing the proper conduct of the proceedings.
14. The applicant’s appeal against the decision of the Gdańsk Court of Appeal was dismissed by the same court on 16 January 2007.
15. On 25 April 2007, 11 December 2007 and on further unspecified dates the Gdańsk Court of Appeal again extended the applicant’s detention. In its decision of 11 December 2007 the court held that another extension of the applicant’s detention was necessary in order to allow the trial court to examine additional evidence and hear more witnesses. The court moreover observed that one of the co-accused had also been charged in another set of proceedings and remained at the disposal of the Kraków Regional Court, which made it necessary to have him escorted from there to each of the hearings before the Gdańsk Regional Court. The applicant’s appeal against this decision was dismissed on 28 December 2007.
16. On 30 December 2008 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to 10 years’ imprisonment.
17. On 2 March 2010 the Gdańsk Court of Appeal upheld the lower court’s judgment.
18. The applicant lodged a cassation appeal and the proceedings before the Supreme Court are currently pending.
19. On 14 January 2005 the applicant was committed to Sztum Remand Centre.
20. On 30 September 2005 he was transferred to Gdańsk Remand Centre.
21. From 12 October 2006 to 15 November 2006 the applicant was held in Kraków Remand Centre.
22. On 16 November 2006 he was transferred back to Gdańsk Remand Centre. He remained there until 6 March 2007.
23. On 7 March 2007 the applicant was once more transferred to Kraków Remand Centre and detained there until 21 March 2007.
24. From 22 March 2007 onwards the applicant was detained in Gdańsk Remand Centre.
25. Following his conviction, on 17 January 2009 he was transferred to Iława Remand Centre to serve his term of imprisonment. He remained there until 17 October 2009, with the exception of the period from 30 June 2009 to 3 September 2009 when he was detained in Racibórz Remand Centre.
26. On 18 October 2010 the applicant was transferred to Czerwony Bór Prison where he is currently detained.
27. The parties gave partly differing accounts of the conditions of the applicant’s detention in the above-mentioned establishments.
28. Upon his arrest on 12 January 2005 the applicant was committed to Sztum Remand Centre where he was initially held in a cell of an unspecified size.
29. On 20 June 2006, in Gdańsk Remand Centre, he was placed with five other detainees in a cell of 16 m². The free area in the cell, furniture and other equipment excluded, amounted to approximately 1 m² per person.
30. Subsequently, on an unspecified date the applicant was transferred to a cell which measured 20 m² and was shared by six detainees. The cell in question was furnished with three bunk beds, two tables, six stools and a number of cupboards. A toilet cubicle was also inside the cell. The free area in the cell was approximately 1.5 m² per detainee.
31. From 17 October to 15 November 2006 the applicant was held in Kraków Remand Centre. Despite being a non-smoker, he was detained in a cell designated for smokers.
32. In a letter of 9 November 2009 the applicant informed the Court that he had been continuously held in a cell where the statutory requirement of 3 m² of living space per prisoner had not been respected. The toilet was not properly separated from the rest of the cell and the conditions were unhygienic.
33. In a letter of 15 October 2010 the applicant informed the Court that from 9 November 2009 to 26 November 2009 the authorities of Iława Prison had placed him together with one other detainee in a cell where the living space per detainee amounted to 2.48 m².
In the same letter he further stated that on 26 November 2009 he was moved to cell no. 18 in ward B where the requirement of 3 m² of living space per prisoner had been respected and the conditions of his detention were more or less satisfactory.
34. The Government supplied the following details concerning the conditions of the applicant’s detention in each establishment.
35. As regards Gdańsk Remand Centre, the Government acknowledged that the applicant had been temporarily placed in cells where the living space per prisoner had amounted to less than 3 m². The cell space in different cells occupied by the applicant ranged from 2.26 m2 to 4.06 m2 per prisoner. The period during which the applicant had been detained in cells where the living space was less than 3 m² per prisoner amounted to a total of 235 days.
36. The Government explained that throughout his detention the applicant had been entitled to a one-hour daily walk in the remand centre’s courtyard and to take part in various sports activities. The sanitary conditions of Gdańsk Remand Centre were adequate, the cells were properly lit and equipped with all necessary furniture.
37. With regard to Kraków Remand Centre, the Government also conceded that the applicant had been at times held in cells where the living space per prisoner amounted to less than 3 m². He was initially placed in a cell with non-smokers but at his own request he was later moved to a different cell. In this remand centre also the applicant was entitled to a one-hour daily walk in the remand centre’s courtyard. The overall sanitary conditions of the remand centre were satisfactory and the applicant had been provided with the necessary products for his daily hygiene.
38. In a letter of 26 November 2009 the Government submitted that the applicant was being detained in Iława Remand Centre, in a cell where the statutory minimum standard of 3 m² per person was respected.
39. The applicant lodged a complaint with the Ombudsman, complaining about the conditions of his detention in Kraków Remand Centre. He did not lodge a similar complaint in respect of Gdańsk Remand Centre because, as he explained, such a complaint would have had no prospects of success and moreover he had feared persecution by the prison authorities of Gdańsk Remand Centre.
40. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights on account of the conditions of his detention.
41. The applicant submitted that during his stay in Sztum Remand Centre he had been entitled to one family visit per month. During the first visit he was allowed to see his common-law wife in person and in the presence of a police officer. During all subsequent visits he was separated from his visitors by a perspex partition and could only communicate with them via internal phone. He was only allowed to receive one visitor at a time.
42. In March 2005 the applicant’s wife was refused the right to see him. According to the applicant’s submissions, the authorities had explained their refusal by the fact that a personal search performed on the applicant’s wife at the remand centre’s entrance had allegedly revealed a prohibited “kite” message (gryps) and some unauthorised medication. The applicant maintained that the authorities had unfairly mistaken his common-law wife’s personal memo note for a prohibited message. He also explained that the medication she had been carrying had been her own, ordinary medication for blood circulation problems. He moreover pointed out that during the visit scheduled for that particular day he would in any event have been separated from his wife by a perspex partition, a circumstance of which both the authorities and his wife had been aware.
43. In Gdańsk Remand Centre the applicant was entitled to receive visitors once a month. He was usually separated from his visitors by a perspex partition and could communicate with them via internal phone.
44. The applicant submitted that on numerous occasions his commonlaw wife and other members of his family had filed repeated requests to be allowed to see him physically in person but that all these requests had been refused. He maintains that he was allowed to meet his family in a manner allowing for direct physical contact only on six occasions.
45. From the copies of documents provided by the applicant it can be seen that the requests filed by various members of his family on 12 July 2005, 5 August 2005, 29 May 2006, 9 July 2006 and on 5 September 2006 were all refused by the Gdańsk Regional Court, usually by handwritten notes made on their requests – “permission refused” (“nie wyrażam zgody”).
46. As a result of a request filed on 30 June 2006, on 3 July 2007 the court decided to “only exceptionally” allow the applicant’s common-law wife to see him without their being physically separated (“sąd wyjątkowo wyraża zgodę na widzenie umożliwiające kontakt bezpośredni”).
47. Also, the applicant’s own request to be allowed to have direct physical contact with his visitors, filed on 10 July 2006, was refused by the court on 18 July 2006.
48. According to a certificate issued on 25 July 2007 by the authorities of Gdańsk Remand Centre, provided by the applicant, up until 23 July 2007 he had been allowed to see:
- his common-law wife 16 times: during 9 visits they had been separated by a perspex partition and on 7 other occasions they had been allowed to have direct physical contact;
- his son P. 9 times: on 7 occasions with the perspex partition and 2 occasions with direct physical contact;
- his daughter E. once, being separated from her by the perspex partition.
49. The Government pointed out that during his stay in Gdańsk Remand Centre the applicant had been allowed to see his family 46 times, on 20 occasions in a manner allowing for direct physical contact. Nearly all requests filed by the applicant’s family members had been allowed. The visits took place on:
- 11 and 18 October 2005;
- 8, 10, 23, 25 November 2005;
- 1, 8, 13, 20 December 2005;
- 12 and 20 January 2006;
- 7 and 17 February 2006;
- 1, 10, 24 March 2006;
- 10, 12, 14 and 21 April 2006;
- 12 and 17 May 2006;
- 6, 21, 30 June 2006;
- 11 and 21 July 2006;
- 31 August 2006;
- 7 and 21 September 2006;
- 23 November 2006;
- 16 December 2006;
- 22 January 2007;
- 22 February 2007;
- 27 March 2007;
- 8 and 30 May 2007;
- 8 June 2007;
- 24 July 2007;
- 21 August 2007;
- 21 September 2007;
- 12 October 2007;
- 29 November 2007;
- 14 and 22 December 2007.
50. During his stay in Kraków Remand Centre from 7 to 21 March 2007, the applicant was not allowed to make any telephone calls and did not receive any visits.
51. On 19 May 2010 the Elbląg Regional Court refused to grant the applicant’s request for release on probation (warunkowe przedterminowe zwolnienie). The court held that the applicant could not be given a positive socio-criminological forecast and that his resocialisation process had not been completed yet. It noted that the applicant’s behaviour in detention had been proper, but also observed that he had been a declared member of the prison subculture in violation of prison regulations, that he had not shown a critical attitude towards his crime and, lastly, that the end of the applicant’s sentence was still remote. It recalled that, according to the prevalent jurisprudence, release on probation was a kind of “reward” for prisoners who, by their behaviour, had demonstrated that they had made substantial progress in their resocialisation.
52. On 22 June 2010 the Gdańsk Court of Appeal dismissed the applicant’s appeal. It restated the reasons invoked for the decision of the lower court. In addition, it considered that the fact that the applicant had never throughout his detention been given a disciplinary penalty and that he had received a dozen or so rewards for his behaviour (nagroda) could not suffice to conclude that his socio-criminological forecast should be regarded as positive. The court further invoked the applicant’s membership of the prison subculture, the serious nature of his criminal conviction and his lack of remorse in respect of the committed crime.
53. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the decision given by the Court in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
54. The relevant domestic law and practice concerning the imposition of pretrial detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006).
55. The relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, § 27-28 and 30-35, 3 February 2009).
56. Pursuant to Article 217 § 1 of the Code of Execution of Criminal Sentences, a detainee is allowed to receive visitors, provided that he has obtained a visit permission (“zezwolenie na widzenie”) from the authority at whose disposal he remains, i.e. an investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun) or from the appellate court (in appeal proceedings). A detainee is entitled to a single, onehour long visit per month.
57. According to paragraphs 2 and 3, a visit should take place in the presence of a prison guard in a manner making it impossible for a detainee to have direct contact with a visitor but the authority which issued the permission may set other conditions. In practice, there are 3 types of visits: an “open visit”, a “supervised visit” (widzenie w obecności funkcjonariusza Służby Więziennej) and a “closed visit”.
58. An open visit takes place in a common room designated for visits. Each detainee and his visitors have at their disposal a table at which they may sit together and can have an unrestricted conversation and direct physical contact. Several detainees receive visits at the same time and in the same room.
59. A supervised visit takes place in the same common room but the prison guard is present at the table, controls the course of the visit, may restrict physical contact if so ordered under the visit permission, although his principal role usually is to ensure that the visit is not used for the purposes of obstructing the proceedings or achieving any unlawful aims and to prevent the transfer of any forbidden objects.
60. A closed visit takes place in a special room. A detainee is separated from his visitor by a perspex partition and they communicate through an internal phone.
61. The relevant extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006, read as follows:
“Part II Conditions of imprisonment
Contact with the outside world
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3