ITEMID: 001-82469
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: M.N. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr M.N., is a Finnish national who was born in 1942. He is represented before the Court by Mr E. Sallinen, a lawyer practicing in Nakkila. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has a son, M., born in May 1991 out of wedlock. The applicant stopped cohabiting with M.’s mother, A., shortly after M.’s birth. A. was granted sole custody of M. and no access arrangements were made for the applicant. It appears that the applicant had barely any contact with his son in his early childhood.
Due to A.’s unstable life, child welfare officials intervened to give her support in caring for M. from the age of three months onwards. In December 1997, M., then aged six, was taken into public care for a period of seven months and placed with a substitute family (S.-V.), who lived some 20 kilometres away from the applicant’s home. Since then, this family has provided M. with support and respite and holiday care. In 1998 M. started psychological therapy.
On 2 February 2000, A. was hospitalised and M. moved to live with the S.-V. family. Ten days later A. died. M. continued to live with S.-V. Around that time the applicant began to visit M. regularly, and it appears that M. began to stay with him every other weekend.
On 14 November 2000, the local Social Welfare Board (sosiaalilautakunta, socialnämnden) decided to take M. into public care pursuant to the Child Welfare Act (lastensuojelulaki, barnskyddslagen) and ordered that he be placed with the S.-V. family. It appears that the applicant consented to the care order, and did not appeal against it.
Meanwhile, the Social Welfare Board instituted proceedings before the District Court (käräjäoikeus, tingsrätten), requesting that custody of M. be granted to his foster parents. During the proceedings, the applicant applied for custody. On 9 March 2001, the District Court decided that custody of M. should be granted to the applicant as he, as a biological parent, was willing to assume custody. In addition, the visits between the applicant and M. had taken place without difficulty.
In December 2001 the applicant requested the Social Welfare Board to remove his son from public care. The Social Welfare Board asked for a report on the applicant’s circumstances from the Social Welfare Board of the applicant’s home municipality. According to the report, the applicant had been unwilling, or unable, to cooperate. The social welfare officials considered that were M. to live with his father, his care, upbringing, supervision and other needs might not be guaranteed. They were not convinced that M. would be better off with his father. M.’s psychiatrist, Dr. P., filed an opinion with the Social Welfare Board, in which she reported that M. did not want to decide where he should live, but had said that he did not want further changes in his life and wished to continue going to the same school with his friends.
It appears that the applicant was invited to participate in two preparatory meetings held by the Social Welfare Board on 15 March and 2 April 2002. The applicant did not attend.
On 4 June 2002, the Social Welfare Board decided to refuse the request. It considered that the circumstances justifying M.’s continued public care still existed.
The applicant continued to meet M. regularly. It appears that although he was granted a right to have M. live with him for two extended periods in June and July 2002, for reasons attributable to the applicant the visits did not in fact take place.
The applicant challenged the care decision before the Turku Administrative Court (hallinto-oikeus, förvaltningsdomstolen). He claimed that public care was contrary to M.’s interests. Further, the fact that he was M.’s biological father had been neglected in the decision-making. He maintained that if the decision had been based on the fact that he had never lived with M., it was deficient since he had never been given that possibility.
The Social Welfare Board submitted a statement to the court to which the applicant filed a response. Upon the request of the applicant, the Administrative Court held an oral hearing on 9 October 2002. In the hearing the applicant maintained that M. should live with him. He claimed that cooperation between the social welfare officials and the substitute family had been difficult. The court took evidence from a social worker, K., who stressed inter alia that M. had been provided with child welfare services since the age of three months. She also considered that cooperation with the applicant had been difficult and that he was socially restricted. The foster mother, S., told the court that the applicant had never visited them and that M. had developed significantly during his stay with the substitute family. M., then aged eleven, expressed the view that he would like to live with his father, although he had good relations with his foster parents and the other children living in the substitute family.
The Administrative Court upheld the decision on 30 October 2002. It found that the mere fact that the applicant had been granted custody of M. was not conclusive of the public care in issue. It went on to find that the applicant was reported as having been uncooperative with the social welfare officials, who could not rely on him to take day-to-day responsibility for M. As M. had had difficult experiences and had suffered bereavement in his childhood, the Administrative Court concluded that, in its assessment, the continuation of public care in the substitute family was in M.’s best interests.
On 2 December 2002, a care plan meeting was held at the home of the substitute family. According to the Government, the social welfare official reported that the applicant had behaved inappropriately at the meeting. This was contested by the applicant.
The Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), having obtained written submissions from the Social Welfare Board and the applicant, upheld the public care decision on 16 September 2003.
In summer 2006 M. lived with the applicant for a month. He refused to return to the S.-V. family and on 18 July 2006, he was placed in a children’s foster home. When the re-placement was considered by the Social Welfare Board, M. did not object, and nor did he express the wish to live with the applicant. The applicant did not attend a preparatory hearing although allegedly invited. M. spent two weeks with the applicant over Christmas 2006.
For an account of domestic law see K. and T. v. Finland [GC], no. 25702/94, §§ 94-133, ECHR 2001VII and R. v. Finland, no. 34141/96, §§ 54-58, 30 May 2006). In addition, the provisions of particular relevance to the present case are described below.
Section 16 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen, Act no. 683/1983 as later amended) provides that the Social Welfare Board must take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by alcohol or drug abuse, by committing an illegal act other than a minor offence or by any other comparable behaviour; (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child.
According to section 20 of the Act, the Social Welfare Board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section 16, unless such discharge is clearly contrary to the best interests of the child. In determining the best interests of the child, the duration of the substitute care, the relationship between the child and the persons providing the substitute care, and the contacts between the child and his parents shall be taken into account.


ITEMID: 001-60600
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ALITHIA PUBLISHING COMPANY v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award
JUDGES: Georg Ress
TEXT: 9. On 22 October 1985, just before the 1986 elections, the first applicant published an Article entitled “The capon and self-esteem Short portrait of Mr Tassos Papadopoulos Archives, Gigolo, Computer and Specimen of writing”, of which the second applicant was the author.
10. On 26 October 1985 Mr Papadopoulos filed a civil action for libel with the District Court of Nicosia. The applicants filed a memorandum of appearance to the writ on 5 November 1985. The plaintiff's statement of claim, which, by virtue of Order 20 r.1 of the Civil Procedure Rules, ought to have been filed within ten days after the appearance, was delivered to the applicants on 3 February 1988. Although on 6 November 1987 the District Court had fixed a time-limit of twenty-one days for the filing of the statement of claim, the plaintiff requested and obtained on 11 January 1988 an extension until 29 January 1988. On that date, as the statement of claim was not yet filed, the District Court did not fix the case anew, but gave instructions to the Registrar to bring the case before it, after 1 February 1988, in order to dismiss it for want of prosecution.
11. On 16 September 1988 and 17 January 1989 the applicants filed two similar applications whereby they sought to obtain an order of the court striking out or amending paragraph 8 of the plaintiff's statement of claim, as tending to embarrass or delay the fair examination of the action or as being unnecessary or scandalous. The hearing of the applications was fixed for 7 November 1988, but on that date it was adjourned until 14 December 1988 at the request of both parties and then, ex officio, until 9 January 1989, when it was dismissed for want of prosecution. On 17 January 1989 the applicants filed a third similar application which was subsequently withdrawn on the date of the hearing on 21 April 1989, in the light of a statement made by the plaintiff's lawyer.
12. On 31 May 1989 the applicants applied to the District Court for an adjournment of the time-limit to file their defence, on the ground that it had not been possible to do it in time owing to the numerous applications which were submitted in the action. An adjournment was granted until 7 June 1989 but the applicants did not file their defence until 12 September 1989.
13. On 15 February 1990 the applicants applied to the District Court to expedite proceedings. The court fixed the case for mention on 16 March 1990 and for hearing on 9 November 1990. On that date the hearing was adjourned ex officio until 21 March 1991 and 15 November 1991, and then until 28 May 1992 and 13 January 1993. On that last date the applicants failed to appear because the plaintiff's lawyer had omitted to notify them of the date of the hearing.
14. On 21 June 1993 the hearing was adjourned again until 4 February 1994, owing to the lack of time by the court, and again until 16 September 1994, following a request from the applicants. On three occasions the hearing was adjourned ex officio: on 16 September 1994, 1 March 1995 and 18 September 1995 and, following a further request from the applicants, again on 12 January 1996.
From 16 March 1990 until 14 March 1996, when the hearing actually started, the hearing was adjourned on eight occasions, due to lack of time of the Court: from 16 March 1990 to 9 November 1990, from 9 November 1990 to 21 March 1991, from 21 March 1991 to 15 November 1991, from 15 November 1991 to 28 May 1992, from 28 May 1992 to 13 January 1993, from 13 January 1993 to 21 June 1993, from 21 June 1993 to 4 February 1994, from 4 February 1994 to 16 September 1994 (not attributed to the Court), from 16 September 1994 to 1 March 1995, from 1 March 1995 to 18 September 1995, from 18 September 1995 to 10 January 1996 (not attributed to the Court), from 10 January 1996 to 13 March 1996 (not attributed to the Court) and from 13 March 1996 to 14 March 1996.
15. The hearing commenced on 14 March 1996 and involved seven sessions: on 14 March 1996, 2 April 1996, 22 April 1996, 29 May 1996, 30 May 1996, 12 June 1996 and 13 June 1996. On 14 March 1996, at the end of the morning session, the lawyers of both parties declared that they were unable to continue in the afternoon or the following week due to other court engagements. The applicants' lawyer refused to resume the hearing on 5 April 1996 because he had to appear before another court, and on 23 April 1996 because he was engaged in a pre-election meeting of his party. The hearing thus continued after the parliamentary elections held on 26 May 1996.
16. On 28 January 1997 the District Court delivered its judgment. It found that the applicants had committed libel and ordered them to pay the plaintiff 12,000 Cypriot pounds in damages.
17. The District Court rejected the applicants' claim that the proceedings were null and void because they had exceeded a reasonable length. The District Court noted, on the one hand, that the plaintiff had delayed filing his claims, but, on the other hand, that the applicants had not complained of this delay prior to the hearing.
18. On 27 February 1997 the applicants appealed to the Supreme Court. They relied on two grounds: the excessive length of the proceedings and the amount of the award. On 8 April 1997 the plaintiff filed a cross-appeal whereby he sought higher compensation.
19. The Supreme Court fixed the hearing on 22 December 1998 but on that date adjourned it until 12 May 1999.
20. On 22 July 1999 the Supreme Court rejected the applicants' appeal and increased the award of damages to 20,000 Cypriot pounds.
21. As regards the length of the proceedings, the Supreme Court held that much of the delay was due to the applicants' requests for adjournments. It acknowledged, however, that it took 28 months for the plaintiff to file his claims because of his frequent trips abroad, and that the District Court had adjourned the hearing several times for lack of time. In particular, the Supreme Court noted the following: on 16 September 1988 the applicants had invited the District Court to strike out part of the plaintiff's claims but, as they did not appear for the hearing of that matter, the District Court rejected the application. The applicants then asked for an extension of the time-limit to file their observations, which were submitted on 12 September 1989. On 23 August 1991 the applicants' lawyers withdrew, and on 11 November 1991 the new lawyer requested the District Court to adjourn the hearing because he was obliged to appear before another court. On 1 March 1995 the applicants' lawyer was not present. On 13 September 1995 he asked for a new adjournment. Finally, the hearing started on 14 March 1996 and was completed on 13 June 1996. During that period, the applicants' lawyer obtained two more adjournments.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57573
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1979
DOCNAME: CASE OF SCHIESSER v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-3
TEXT: 7. Mr. Friedrich Schiesser, a Swiss citizen born in 1952, resides in Winterthur (Canton of Zürich). On 5 April 1976, after he had been hiding from the police for some time, he gave himself up.
He was at once brought before the Winterthur District Attorney (Bezirksanwalt). The latter heard Mr. Schiesser without his lawyer being present and then, on the same day, made an order directing that Mr. Schiesser be placed in detention on remand (Untersuchungshaft). The District Attorney strongly suspected that the applicant had committed or attempted to commit several offences of aggravated theft and feared that he might suppress evidence (Article 49, sub-paragraph a), of the Zürich Code of Criminal Procedure - Strafprozessordnung, hereinafter referred to as StPO).
8. Mr. Schiesser lodged an appeal (Rekurs) against the above-mentioned order but it was dismissed by the Zürich Public Prosecutor (Staatsanwalt) on 13 April 1976. The Public Prosecutor, adopting the grounds relied on by the District Attorney, stated that the investigations had not been completed and that there was reason to believe that the applicant, who had no fixed abode in Switzerland, might abscond.
9. Mr. Schiesser filed a "public-law appeal" with the Federal Court, alleging that the Public Prosecutor’s decision was contrary to Article 4 of the Federal Constitution and to Article 5 paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) of the Convention. He described as arbitrary the statement that he might suppress evidence and questioned whether the District Attorney was an "officer authorised by law to exercise judicial power", within the meaning of Article 5 para. 3 (art. 5-3).
By a judgment of 14 July 1976, the Federal Court (Public-Law Chamber) rejected the appeal. It accepted that there were reasons to believe that the applicant might suppress evidence if he were released. It also considered that, since the circumstances clearly gave rise to a suspicion that the applicant had committed thefts, there was no violation of Article 5 para. 1 (c) (art. 5-1-c). As regards Article 5 para. 3 (art. 5-3), the Federal Court, having noted that there was a difference of opinion amongst legal writers over the interpretation of this provision, stated:
"The main criterion for classifying a given activity as ‘judicial’ is the independence which the bodies acting in that capacity enjoy vis-à-vis other State authorities and other persons entrusted with functions relating to the administration of justice as well as vis-à-vis institutions and organisations in the public sector ...
However, the text of Article 5 para. 3 (art. 5-3) of the Convention demonstrates that it does not see the attributes of a judge or judicial independence in terms of the principle of separation of powers.... The only possible interpretation of this Article is that even bodies which are administrative by reason of their position meet the Convention’s requirements to the extent that they exercise judicial functions, that is act independently when giving decisions in that capacity. Thus, according to Article 5 para. 3 (art. 5-3) ..., what is above all decisive is not the place held in the organisation of the State but rather the function to be exercised. In other words, that provision does not in principle preclude the simultaneous exercise by one and the same person of different functions, namely functions relating to investigation as well as functions in other areas of the administration of criminal justice ..."
In support of this interpretation, the Federal Court pointed out that, unlike paragraph 3 (art. 5-3), paragraph 4 of Article 5 (art. 5-4) uses the word "court". A further argument was derived from Article 6 para. 1 (art. 6-1):
"There is good reason to suppose that, had the authors of the Convention wished to confer on an accused such an extensive guarantee as regards the independence and impartiality of the competent authority, they would have utilised in Article 5 para. 3 (art. 5-3) wording identical to that in Article 6 para. 1 (art. 6-1)", namely "an independent and impartial tribunal".
Turning to the powers of the District Attorney, the Federal Court noted that he is both an investigating authority (Ermittlungs- und Untersuchungsbehörde), under the supervision of the Public Prosecutor, and - in cases before a single judge or the District Court – a prosecuting authority. In the present case, the District Attorney had acted as an investigating authority in which capacity Article 31 stop required him to be equally thorough in gathering evidence in favour of and evidence against the accused. From this the Federal Court concluded:
"It is of little consequence that the District Attorney is incorporated in the administrative hierarchy and thus constitutes an administrative authority by reason of his position in the organisation of the State .... At the investigation stage, he in fact fulfils a judicial function and exercises no administrative activity.... Moreover, the rule on the election of District Attorneys by the people ... shows that the legislature wished to secure for this body a measure of independence vis-à-vis the executive and the administration even as regards the procedure for appointment.
This view is not contradicted by the fact that, during the investigation, the District Attorney’s Office may receive from the Public Prosecutor’s Office directives concerning either the exercise of his activities in general or a specific case (opening, conduct and closure of the investigation) .... What is decisive is that, when acting as a supervisory body during the investigation, the Public Prosecutor’s Office as well is carrying out a judicial function of investigation; it is only if and when the case is sent for trial that that Office assumes its role of prosecutor and thereby becomes a party to the proceedings."
10. On 20 April 1976, the President of the Prosecution Chamber (Anklagekammer) of the Canton of Zürich Court of Appeal (Obergericht) decided that Mr. Schiesser should remain in detention until the following 18 May. The applicant appealed without success, firstly to the Prosecution Chamber, which confirmed the President’s order on 10 May, and then to the Federal Court, which dismissed his "public-law appeal" on 25 May 1976.
Mr. Schiesser’s detention on remand had in the meantime been prolonged pursuant to Article 51 StPO. He was eventually released on 12 July 1976.
11. In view of the gravity of the charges against the applicant (thefts to a value of more than FS 30,000) the Canton of Zürich Court of Appeal had jurisdiction in the matter; the indictment therefore had to be drawn up by the Public Prosecutor’s Office which represented the prosecuting authorities at the trial (see paragraph 14 below). The investigation, on the other hand, had been conducted by an Ordinary District Attorney.
On 11 May 1978, the Court of Appeal imposed on Mr. Schiesser a sentence, suspended for four years, of seventeen months’ imprisonment for professional theft as a member of a gang (Article 137 of the Swiss Criminal Code).
12. The Canton of Zürich is divided into eleven districts, each of which has a Prosecutor’s Office with one or more Attorneys. At the relevant time, the status and powers of District Attorneys were laid down in the Constitution of the Courts Act of 29 January 1911 (Gerichtsverfassungsgesetz, hereinafter referred to as GVG); an Act of 13 June 1976, which entered into force on 1 January 1977, has since replaced, and in substance re-enacted the provisions of, the 1911 Act.
13. Ordinary District Attorneys are elected by universal suffrage for a term of office fixed by the 1911 Act at three years (section 99 GVG) and increased by the 1976 Act to four years. Although any citizen may stand for election, candidates are most often lawyers who have completed university studies and received practical training in the courts, industry, the civil service or the legal profession. If necessary, the Cantonal Government appoints Special District Attorneys for a specified period (sections 100 and 106 GVG).
14. The District Attorney is subordinate to the Public Prosecutor who in turn comes under the authority of the Department of Justice and the Government (Regierungsrat) of the Canton of Zürich. The District Attorney is the prosecuting authority before the single judge in criminal matters and before the District Courts in cases concerning petty offences and misdemeanours; before the higher Cantonal courts (the Court of Appeal and the Assize Court - section 93 GVG), this function is performed by the Public Prosecutor. The District Attorney also has power to issue a punishment order (Strafbefehl) if the accused has admitted his guilt and if a fine (Busse) or a prison sentence of not more than one month is deemed sufficient (Article 317 StPO); however, the person concerned is entitled to enter an objection (Einsprache) to the punishment order, as is the Public Prosecutor (Article 321 StPO).
15. The investigation of criminal cases comes within the competence of the prosecuting authorities (section 94 GVG). The District Attorney conducts the investigation except in those cases where it is entrusted by law to the Public Prosecutor or a judge (Article 25 StPO). The District Attorney may issue a warrant for arrest (Verhaftsbefehl - Article 55 StPO), the grounds for which he must indicate; he has to hear an arrested suspect within twenty-four hours (Article 64 StPO). During this first interrogation, at which the suspect’s lawyer is not normally present, the suspect must be clearly informed of the reasons prompting the suspicions held against him (Article 65 StPO) and of the existence of a right of appeal against the warrant (1956 Circular from the Public Prosecutor’s Office). Directive no. 219 (Collection of Circulars from the Public Prosecutor’s Office to the District Attorneys’s Offices, 1968 - Sammlung der Kreisschreiben der Staatsanwaltschaft an die Bezirksanwaltschaften von 1968) specifies that this interrogation is not to be considered as a pure formality. Under Directive no. 58, the District Attorney is prohibited from delegating his power to interrogate to subordinate officials.
16. Detention on remand ordered by the District Attorney may not exceed fourteen days; this period may be extended by the President of the District Court or, in cases coming within the jurisdiction of the Assize Court, the President of the Prosecution Chamber of the Court of Appeal (Article 51 StPO).
17. The District Attorney remains under the control of the Public Prosecutor as regards both the opening and the conduct of the investigation. The Public Prosecutor is authorised to issue directives to him (Article 27 StPO) and must be kept informed of every serious offence (Directive no. 100). The Department of Justice or the Government of the Canton of Zürich may request the Public Prosecutor to submit a report on the opening and the conduct of criminal proceedings (Strafprozess) and may give him special orders and instructions (besondere Aufträge und Weisungen - Article 28 StPO). A report must be made to the Cantonal Government whenever proceedings having political significance are instituted (Article 29 StPO).
In addition, the Chief Public Prosecutor (erster Staatsanwalt) carries out inspections twice every year; their sole purpose is the expedition of proceedings.
For more than thirty years now, District Attorneys in practice receive no special orders or instructions from the Public Prosecutor concerning their powers of placing individuals in detention.
Once the investigation is closed, any District Attorney contemplating the release of an accused must so inform the Public Prosecutor if the prosecution falls within the latter’s competence (Directive no. 171).
18. Assuming that the prosecution has not been discontinued, the District Attorney, or the Public Prosecutor, becomes a party to the criminal proceedings; when drawing up the indictment, he must however take into account items in the accused’s favour and not confine himself to stressing items that tell against him (Article 178 StPO).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-5594
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: MERCÜMEK v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Turkish national, born in 1944 and currently living in Istanbul, Turkey.
He is represented before the Court by Mr Ünal Somuncuoğlu, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a client of the Mecidiyeköy branch of the Economy Bank (İktisat Bankası: hereinafter “the defendant”).
On 12 June 1989 the applicant sought to withdraw the balance on the bank accounts which he had opened with the defendant namely, 1,694,424 US dollars (USD) and 166,762 German marks (DEM). The bank refused to comply with his request giving as its reason that there was no longer any balance left on the accounts since all amounts previously deposited had been withdrawn.
The applicant brought legal proceedings against the defendant before the 3rd Commercial Court of Istanbul (Asliye Ticaret Mahkemesi).
During the proceedings the court appointed experts to look into the defendant’s accounts. The experts could not identify the existence of any document or record proving that the applicant had been paid the sum of USD 1,694,424 from his accounts. Although the defendant had not been able at the start of the trial to supply any documents signed by the applicant in the form of bills, checks or payment orders, it submitted a report dated 11 May 1990 indicating the existence of “a general release” (genel ibraname) which the applicant had signed on 4 September 1988 affirming that he had irrevocably released the defendant from its obligation to pay him the money which he had deposited with it.
The applicant contended that the defendant forged the so-called general release after he instituted proceedings against it. He maintained that the defendant, using a typewriter, filled in a blank page which he had signed and lodged with the defendant’s Mecidiyeköy branch. The applicant claimed that he had done so since he had trusted the defendant’s branch manager at the time and considered that this was in the interests of the smooth running of his financial dealings. He noted that the typed wording of general release bore a misspelling of his last name (“Mercimek” instead of “Mercümek”). The applicant argued before the court that notwithstanding the existence of the so-called “general release” of 4 October 1988, the defendant had nevertheless made him a payment from his account no. 787643 on 12 June 1989 in the sum of USD 45,000.
During the proceedings before the 3rd Commercial Court of Istanbul the applicant requested that witnesses be heard by the court on the matter of the validity of the release. He submitted an expert legal opinion to the court stating that the court could only properly assess the applicant’s claim by hearing evidence other than the general release letter. The applicant’s request was refused.
The experts commissioned by the 3rd Commercial Court of Istanbul on the matter of the alleged falsity of the general release letter stated in a report dated 15 February 1995 that they “did not find any proof that the disputed document had been prepared later by filling in blank pages signed by the applicant”. The experts who investigated the history of the applicant’s deposit accounts found that “the bank had paid all sums of money, totalling USD 1,703,248, without the applicant having signed any check, payment order or other document”. As to the “general release letter” the experts concluded that: “the existence of this release may legitimately close the accounts and bring to an end the bank’s obligation to pay money out of them.” The experts also stated that the general release letter had been signed by hand whereas the actual wording of the letter had been typed. This made it impossible to determine whether the wording used in the general release letter had been inserted after it had been signed by the applicant, as he alleged.
In its judgment of 21 April 1995, the 3rd Commercial Court of Istanbul rejected the applicant’s claim. It found inter alia that there was no evidence to prove that the release given to the defendant by the applicant was a blank page which had been filled in later or that he had intended a signed blank page to be used by the bank for another transaction. The court found that although some of the documents concerning the payments made to the applicant did not bear the applicant’s signature these documents were nonetheless valid having regard to his general release letter of 4 October 1988.
The applicant appealed to the Court of Cassation arguing that the judgment of the 3rd Commercial Court had not clarified a number of legal issues. The applicant requested the Court of Cassation to examine the merits of these issues and to address them specifically and separately.
The 19th Civil Chamber of the Court of Cassation upheld the decision of the 3rd Commercial Court of Istanbul. The Court found that the applicant’s release letter relieved the defendant from the obligation to make payments to him from his account. The court considered the applicant’s argument that he had given the release to the defendant in the form of a blank page for the purposes of a banking transaction. The court noted that the 3rd Commercial Court of Istanbul appointed a group of experts to inquire into the allegation that the document had been unlawfully filled in at a later stage. However, the court-appointed experts found no evidence of forgery. The court also considered the issue whether the document could be regarded as a lawful release under Turkish law. It noted that, according to doctrine, a release of debt was accepted as one of the ways of discharging a debt. The court concluded that the release letter showed that it was the intention of the applicant to discharge the debt owed to him by the defendant. Furthermore the release had complied with the requirements of the relevant provisions of the Code of Obligations (Borçlar Kanunu).
One judge dissented, being of the opinion that the first instance court should have allowed witnesses to be heard on behalf of the applicant. The judge also noted that there were indications that the general receipt could have been forged and that it was not normal practice for a bank to pay out money to a client without having a trace of his signature. The judge was not prepared to accept the defendant’s argument that it had paid money in good faith from the applicant’s account after the date indicated on the general release letter.
On 8 November 1996 the 19th Civil Chamber of the Court of Cassation rejected the applicant’s request for rectification of its earlier judgment.


ITEMID: 001-96095
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SKRYPETS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1967 and lives in the town of Novyy Rozdil, Ukraine.
5. On 4 April 2003 the Mykolaivsky Court awarded the applicant 1,884.77 Ukrainian hryvnias (UAH) in salary arrears and litigation expenses incurred by the applicant, to be paid by the State-controlled enterprise OJSC Novorozdilsky Zavod Fungytsydiv.
6. On 8 May 2003 the State Bailiffs' Service initiated enforcement proceedings in respect of the judgment given in the applicant's favour.
7. On 25 October 2006 the company was declared insolvent. The liquidation proceedings instituted against the company are still pending.
8. On 19 May 2006 the applicant received UAH 659.32 in part settlement of the judgment debt.
9. In their submissions the Government stated that on 31 October 2008 the applicant had also received UAH 150.78. The applicant did not disagree.
10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004).
VIOLATED_ARTICLES: 13
6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-87684
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: VOVK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The first applicant, Mr Volodymyr Kuzmych Vovk, is a Ukrainian national who was born in 1954 and resides in the village of Slabyn in the Chernigiv region.
The second applicant, Mr Vasyl Ivanovych Trykashnyy, was a Ukrainian citizen born in 1948 who died on 13 February 2004. By letter of 16 August 2007, the applicant’s son informed the Court that he wished to pursue the application.
The applicants were represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 October 1999 the first applicant brought a car registered in Lithuania (a 1985 BMW-323) into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 16 October 2000. He failed to do so, however.
On 22 April 2002, after several unsuccessful attempts to summon the applicant, the Chernigiv Customs Office, in the applicant’s absence, drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code).
On 13 June 2002 the applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that the impugned car had broken down and he had given it to a friend who had taken it away, the court found the first applicant guilty of having failed to re-export the car in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of 7,025.24 Ukrainian hryvnyas (UAH) (about 1,448.16 euros (EUR)), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.
On 9 July 2002 the President of the Chernigiv Regional Court of Appeal refused the applicant’s request to initiate supervisory review proceedings in the case.
On 23 June 1999 the second applicant brought a car registered in Lithuania (a 1985 Mercedes Benz-100) into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 23 June 2000. He failed to do so, however.
On 11 May 2002, in the applicant’s absence, the Chernigiv Customs Office drew up a report on an infringement of customs regulations due to the applicant’s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code).
On 18 June 2002 the second applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that he had given the car to a certain Ms S. in payment for debts, but refused to give her address, the court returned the case to the customs authorities because of a number of procedural mistakes made by the latter in drawing up the report on an infringement of customs regulations. The customs authorities drew up a new report and sent it to the court.
On 25 October 2002 the court examined the case and found the second applicant guilty of having failed to re-export the car, in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle but, given that the car’s location was unknown, replaced the confiscation with payment of UAH 9,805.24 (about EUR 1,947.97), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.
On 3 December 2002 the President of the Chernigiv Regional Court of Appeal refused the applicant’s request to initiate supervisory review proceedings in the case.
The relevant domestic law is summarised in the case of Nadtochiy v. Ukraine (no. 7460/03, §§ 13-14, 22 April 2008.)


ITEMID: 001-5081
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: KAMANTAUSKAS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Lithuanian national, born in 1963 and living in Joniškis area.
He is represented before the Court by Mr V. Falkauskas, a lawyer practising in Joniškis.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was suspected of a number of thefts committed whilst on probational release for previous convictions. Several criminal proceedings were brought against him in 1998, the latest being instituted on 29 September 1998. The applicant was arrested on the morning of that day. On the same date the prosecutor requested the Joniškis District Court to order the applicant’s detention. An official defence counsel was appointed.
Again on the same day, at 2.50 p.m. a judge of the Joniškis District Court held a 10 minute remand hearing to which the prosecutor, the applicant and his defence counsel had been called. The prosecutor requested the court to order the applicant’s remand in custody. The judge questioned the applicant, who admitted that he had committed the offences alleged. Then she permitted the applicant’s representative to speak. Counsel requested the court to dismiss the prosecutor’s remand application. He stated that there were no grounds for the detention as the applicant had accepted his guilt and would not hinder the investigation.
The judge ordered the applicant’s detention on remand until 29 December 1998. According to the written version of the detention order, the object of the detention was to prevent the applicant from committing new offences while he was suspected of having committed an offence, and to facilitate the determination of the truth in the case.
On 30 September 1998 the applicant appealed against the detention order. In the appeal he mentioned that on 29 September 1998:
- his representative had been informed that he had to provide legal assistance to the applicant some 10 - 15 minutes before the hearing of the prosecution’s application;
- the lawyer had had no time or facilities to examine the contents of the prosecutor’s request or to have access to the case-file, or to discuss defence tactics with the accused, because he had only become aware of the facts of the case during the prosecution’s intervention at the hearing;
- the judge had prevented the representative from speaking with the applicant before the hearing had started, allegedly warning the lawyer that the Bar could be informed of his behaviour, and that a disciplinary penalty would be imposed if the lawyer spoke to the applicant without the judge’s permission;
- the applicant and his counsel were not permitted to speak to each other or to ask questions throughout the hearing;
- the judge held the hearing without wearing her judge’s robe;
- the judge delivered the detention order without retiring to reach a decision, although the transcript of the hearing of 29 September 1998 by the Registry of the District Court wrongly stated that the court had so retired;
- the judge’s decision was read out in the courtroom without giving reasons for the detention;
- the detention order was not presented for the applicant’s signature;
- the judge had not been impartial, and should have withdrawn because of her relations with the complainant in one set of theft proceedings.
The applicant alleged that the above circumstances involved major breaches of the Courts Act and the Code of Criminal Procedure, and that his detention could not be considered lawful in view of those irregularities.

On 12 October 1998 the Šiauliai Regional Court heard the appeal in the presence of the applicant’s representative and a prosecutor. The court dismissed the appeal, holding that the applicant should be in custody because of his propensity to crime, his lack of employment, the fact that he was charged with five offences while still on probational release, and that he risked a custodial sentence of more than one year’s imprisonment. The Regional Court ruled that the applicant could reasonably be expected to engage in new offences whilst suspected of having committed an offence, and that therefore his detention was justified. By reference to Article 109-1 § 2 of the Code of Criminal Procedure, the Regional Court concluded that the alleged procedural irregularities of 29 September 1998 did not “alter the substance” of the lawfulness of the applicant’s detention.
B. Relevant domestic law

Relevant provisions of the Code of Criminal Procedure
(Baudžiamajo proceso kodeksas):
Articles 10 and 104 provide that no one can be detained save by virtue of a decision of a court or judge.
Article 137 provides that a prosecutor, investigator or interrogator can temporarily arrest a person while he is committing an offence or immediately after its commission when there are grounds for detention on remand specified in Article 104 § 3 (see below). This arrest can last for no longer than 48 hours, during which time the arrested person must be brought before a judge who decides whether or not to order detention on remand.
Article 104 § 3 states that a suspect can be detained on remand where it is reasonably believed that he may:
(1) abscond from the investigation and trial;
(2) obstruct the determination of the truth in the case;
(3) engage in new offences whilst suspected of having committed particular crimes.

Article 104-1 provides:
“… A prosecutor shall bring an arrested person … before a judge within 48 hours after the moment of the arrest, with the application to order his detention on remand … . The judge must hear the person as to the grounds of the arrest. The prosecutor and the counsel shall take part in the inquiry. The judge, of his own motion, or on a reasoned request of the prosecutor, the arrested person or his counsel, is entitled to hear the prosecutor in the absence of the arrested person and his counsel, or to question the arrested person and his counsel only. After having questioned the arrested person, the judge may accept the prosecutor’s application and order detention on remand by designating the term of the detention, or refuse to accept the application and refuse to order detention.

Pursuant to Articles 104-3 and 104-4, a judge shall take a reasoned decision on the detention of a person, specifying the offence alleged against him and the grounds for the detention. The detention order shall be pronounced immediately after it is taken or within “the shortest time possible”, and it shall be presented for the signature of the detainee, unless the latter cannot or does not want to sign it.
Article 109-1 provides:
“A detainee or his counsel shall have the right during the preliminary investigation or trial to lodge with an appellate court an appeal against the detention order or the extension of the term of the detention on remand … . With a view to examining the appeal, there shall be convened a hearing, to which the detainee and his counsel or counsel alone shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by the appellate judge is final and cannot be the subject of a cassation appeal. If the appellate judge … finds procedural irregularities that do not affect the essence of the detention order, he must remedy the defects without quashing the order … .”
Article 58 § 2 (7) of the Code of Criminal Procedure permits the accused’s representative to have access to the case-file following the conclusion of the pre-trial investigation.
Article 58 § 2 (3) provides that a prosecuting authority can take part in the meetings of the accused and his defence counsel and “control” their correspondence when it is reasonably believed that unlimited communication between the accused and his representative can have a “negative impact on the investigation” of the case. Article 39 of the Bar Act (Advokatūros įstatymas) prohibits any interference with communications between the lawyer and his client save in the cases provided for by law.


ITEMID: 001-77829
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STANDARD VERLAGS GMBH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (victim);Violation of Art. 10;Not necessary to examine Art. 6;Remainder inadmissible;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant is the owner of the daily newspaper “der Standard”.
5. In the issue of “der Standard” of 1 March 2000 the applicant published an article in the context of criminal proceedings on charges of large scale fraud and embezzlement against a former Member of Parliament of the Austrian Freedom Party (Freiheitliche Partei Österreichs, “the FPÖ”), Mr Peter Rosenstingl.
6. The article whose author, D.G., is a well-known court room reporter, reads as follows:
“‘I had more important things to do’ –
Ewald Stadler claims he was unaware of Rosenstingl’s loan machinations
As expected, no Freedom Party (FPÖ) politicians offered their resignation yesterday in connection with the Rosenstingl trial. (On the contrary: the FPÖ’s long-serving legal counsel has suddenly become Minister of Justice.)
There is no way back for the two in the dock, however. Peter Rosenstingl, the former FPÖ member of the National Assembly, is accused of having colluded in aggravating the collapse of the poultry firm belonging to his brother Herbert, known as ‘Chicken’. The public prosecutor has assessed the damage at 240 million schillings. Eleven people in all are said to have played a part in the chicken debacle. One of them may have been the former leader of the Lower Austrian branch of the FPÖ, Bernhard Gratzer.
He knew little about it
One member of Jörg Haider’s former chicken coop (if this casual expression is permitted) who is still in office took his turn in the witness box yesterday: Ewald Stadler, now a member of the Lower Austrian regional government but at the time the leader of the FPÖ’s parliamentary group. In that capacity he is alleged to have known even before November 1997 that loans and guarantees from the Circle of Liberal Entrepreneurs (RFW) nourished Rosenstingl’s chickens, fed his suppliers and enticed his creditors. In any event, Peter Rosenstingl claims to have ‘handed over all documents’ to Stadler. But Stadler has no recollection of this. ‘As parliamentary group leader I had more important things to do than worry about lists of that kind’, he retorts. In short, the loan machinations apparently passed from him, like a cup, almost without trace.
Stadler claims that he heard about only one loan, in which Rosenstingl had agreed to borrow 3.5 million schillings from RFW funds. Stadler asked for an explanation. Rosenstingl duly ‘served up a cock-and-bull story’ and referred to an investment on favourable terms and with a better rate of interest in his tax consultancy firm, Omikron.
He is alleged to have reiterated that version of events in mid-November 1997 at a meeting of the Lower Austrian party executive, in the presence of the federal party leaders. And it was believed. Stadler himself was doubtful and made an early exit.
‘Whether the federal party was informed or not is a matter on which everyone may now form his or her own view’, the judge summed up exclusively for all the journalists in the courtroom. ‘However, it will not settle the criminal proceedings.’ Irrespective of this, the fraud trial will drag on further today with witness statements.”
7. The article was accompanied by a photograph of Mr Stadler and the following text:
“The former leader of the FPÖ’s parliamentary group, Ewald Stadler, gives evidence defending the party’s ignorance of the co-financing of the Rosenstingl collapse”.
8. The criminal proceedings against Mr Rosenstingl received extensive media coverage. Mr Rosenstingl and a number of co-accused were eventually convicted of large scale fraud and embezzlement by the Vienna Regional Criminal Court. Its judgment was confirmed by the Supreme Court on 25 September 2001.
9. On 17 August 2000 Mr Stadler brought private prosecution proceedings for defamation under the Media Act (Mediengesetz) as regards the statement:
“He [Mr Stadler] is alleged to have known even before November 1997 that loans and guarantees from the Circle of Liberal Entrepreneurs (RFW) nourished Rosenstingl’s chickens, fed his suppliers and enticed his creditors. In any event, Peter Rosenstingl claims to have handed over all documents to Stadler.”
10. On 29 May 2001 the St. Pölten Regional Court (Landesgericht) held a hearing. Mr Rosenstingl, who had been called as a witness, had refused to give evidence on the ground that he risked incriminating himself. According to the minutes, the applicant contested that Mr Rosenstingl was entitled to refuse giving evidence and requested the court to impose a fine on him. The Court dismissed the request for the taking of evidence, finding that it was irrelevant and that the case was ready for decision. It did not give any detailed reasons.
11. At the close of the hearing, the court gave judgment ordering the applicant to pay compensation of 15,000 Austrian schillings (ATS, that is about 1,090 euros (EUR)) to Mr Stadler and to publish the judgment.
12. In the Regional Court’s view, the incriminated passage meant that Mr Stadler already new of Mr Rosenstingl’s fraudulent transactions before November 1997. However, having regard to the evidence adduced in the criminal proceedings against Mr Rosenstingl, the court found that there was no indication that Mr Stadler knew before November 1997 that loans or guarantees of the Ring of Liberal Entrepreneurs had been transferred to Rosenstingl’s firm. It followed from the minutes of the trial against Rosenstingl, that the latter had not claimed to have given all relevant documents to Mr Stadler, but had only stated to have met another FPÖ politician in Stadler’s office and to have given documents to that politician.
13. Referring to Section 6 of the Media Act, the Regional Court found that the statement at issue fulfilled the elements of defamation (üble Nachrede) under Article 111 of the Criminal Code as it insinuated that Mr Stadler had remained inactive despite being aware of fraudulent transactions. Thus, it accused him of behaviour likely to lower him in public esteem. Although the incriminated passage purportedly cited statements of third persons, the applicant company remained responsible since it had failed to present these quotes neutrally without identifying itself with their content. The article’s style and choice of wording did not fulfil the requirements of a neutral presentation. In any case, the quote was not correct as Mr Rosenstingl had not claimed to have given Mr Stadler all relevant documents nor had it been shown that the latter knew otherwise about the transactions. The applicant had, thus, failed to prove the truth of the impugned statement.
14. On 18 September 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.
15. It noted the applicant’s argument that the article was of a satirical nature and that the reader, expecting a certain degree of exaggeration, concluded in essence that Mr Stadler had known more than he admitted, or could have known more had he made the necessary investigations on the basis of the documents given to him.
16. The Court of Appeal conceded that D.G.’s court room reports differed from usual reports of this genre. His irony and sarcasm were well-known and appreciated by the reader. In the present case however, the issue was not whether the author had made use of some degree of exaggeration. He had simply reported facts which were not true, as no documents at all had been handed over to Mr Stadler. Furthermore, the court confirmed the Regional Court’s view that the article had not quoted third persons’ statements correctly and neutrally.
17. Finally, the Court of Appeal confirmed that the Regional Court had rightly granted Mr Rosenstingl a right to refuse to give evidence in accordance with the relevant provisions of the Code of Criminal Procedure. As the article at issue had reported on the criminal proceedings against Mr Rosenstingl, it was likely that he would, inter alia, have to give evidence as regards his fraudulent transactions. He therefore risked incriminating himself as regards the charges against him.
18. The decision was served on the applicant’s counsel on 8 October 2002.
19. On 14 October 2002 Mr Stadler filed an action under Section 78 of the Copyright Act (Urheberrechtsgesetz) and under Article 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requesting the applicant to refrain from publishing his picture accompanied by the incriminated text, to publish the judgment and to pay him EUR 2,000 as compensation for non-pecuniary damage. He also requested a preliminary injunction.
20. On 22 November 2002 the applicant and Mr Stadler appeared before the Vienna Commercial Court (Handelsgericht) and concluded a partial agreement. The applicant undertook to refrain from publishing Mr Stadler’s picture accompanied by any text similar to the impugned statement, and to publish the agreement. The court therefore limited the hearing to the issue of compensation.
21. On 3 December 2001 the Vienna Commercial Court ordered the applicant to reimburse Mr Stadler’s costs as regards the part of his claim that was covered by the partial agreement, but dismissed the latter’s claim for compensation.
22. The Commercial Court, referring to the Supreme Court’s established case-law as regards the binding force of a conviction in subsequent civil proceedings (see relevant domestic law and practice, below), noted that the publication of Mr Stadler’s picture accompanied by the impugned statement which fulfilled the objective elements of defamation, had violated his legitimate interests within the meaning of Section 78 of the Copyright Act. He was, therefore, in principle entitled to receive compensation if the non-pecuniary damage suffered went beyond the annoyance usually caused by the unlawful publication of a picture. However, he had failed to substantiate that he had suffered any such damage.
23. On 16 October 2003 the Vienna Court of Appeal dismissed Mr Stadler’s appeal.
24. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows:
“1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
25. Section 78 of the Copyright Act, so far as material, provides:
“1. Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured.”
26. Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim for compensation.
2. The same applies if anyone is disseminating facts, which jeopardize another person’s reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...”
27. It is the Supreme Court’s constant case-law that a person who has been convicted in criminal proceedings cannot argue in subsequent civil proceedings that he has not committed the offence at issue (lead case 1 Ob 612/95, 17 October 1995, SZ 68/195). The Supreme Court has also held that a judgment under Section 6 of the Media Act has this binding effect in subsequent civil proceedings (6 Ob 105/97b, 16 October 1997).
VIOLATED_ARTICLES: 10


ITEMID: 001-100964
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF A.B. v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1963 and lives in St Petersburg. At the time of introduction of the application he was detained in remand prison IZ-47/1 in St Petersburg.
7. On 18 May 2004 criminal proceedings were instituted against the applicant and third persons for attempted swindling. At 9.10 p.m. on the same day the applicant was arrested. He was placed in the temporary detention facility of the Nevskiy District of St Petersburg.
8. On 20 May 2004 the Nevskiy District Court of St Petersburg (“the trial court”) remanded the applicant in custody. He was transferred to remand prison IZ-47/1 in St Petersburg (“the remand prison”). The court held that the applicant was charged with a serious crime, had a disposition to commit crimes and could continue to pursue criminal activities if at liberty. The ruling was not appealed against.
9. On 15 July 2004 the Kuybyshevskiy District Court of St Petersburg granted a request by the investigator to extend the applicant's detention until 26 August 2004, holding that investigative measures could not be taken prior to that date. The ruling was not appealed against.
10. On 23 August 2004 the Smolninskiy District Court of St Petersburg prolonged the applicant's detention until 26 October 2004.
11. On 25 October 2004 the Kuybyshevskiy District Court of St Petersburg prolonged the applicant's detention until 26 December 2004.
12. On 24 December 2004 the bill of indictment was drawn up and the case file was transferred to the trial court.
13. On 4 February 2005 the trial court scheduled a hearing for 25 March 2005. The issue of the application of a preventive measure to the applicant was not decided upon pursuant to Article 236 of the Code of Criminal Procedure (“the CCP”).
14. At the preliminary hearing of 24 March 2005 the trial court, relying on Article 237 of the CCP, returned the case to the prosecutor because certain procedural rules had not been complied with. In particular, some pages of the case file had been wrongly numbered and the accused had not been provided with the opportunity to study some documents. The trial court further noted that no application to vary the preventive measure had been lodged. The trial court found that the measure applied was lawful and appropriate in view of the gravity of the charges and the information about the accused, and ordered that it should remain unchanged. The trial court observed that the decision could be appealed against to the St Petersburg City Court within ten days from the date of its delivery. The applicant and his counsel N. were present at the hearing.
15. The ruling of 24 March 2005 was not appealed against and became final on 4 April 2005. On 5 April 2005 the case file was transmitted to the prosecutor.
16. On 7 April 2005 the prosecutor returned the case to the investigator for additional investigative measures. Having obtained the endorsement of the St Petersburg City Prosecutor, the investigator requested a court to extend the applicant's custodial detention for one month until 5 May 2005 so that the aggregate term of his detention amounted to eight months and five days. He argued that the extension sought would allow him to take the requisite investigative measures and to comply with the trial court's instructions.
17. On 8 April 2005 the Kuybyshevskiy District Court of St Petersburg, relying on Article 109 of the CCP, granted the investigator's request to extend the applicant's detention for “one month, up to eight months and five days in total, that is, until 5 May 2005”. The applicant and his counsel M. were present at the hearing. His counsel M. objected, stating that the applicant had a permanent place of residence, had no intention of absconding – on the contrary, he had actively cooperated with the investigation – and that his state of health had worsened. The court held that the investigator's request should be granted and that there was no reason to vary the preventive measure in respect of the applicant since the circumstances that had constituted the grounds for its application had not changed. The applicant was charged with a serious offence and had no permanent job and no assets. Furthermore, he was suspected of having committed a further offence similar to the one he had been charged with. Therefore, if released, he might abscond, hinder the criminal prosecution and engage in further criminal activity. Moreover, certain investigative measures had to be conducted before the case was sent for trial. The court also found that the arguments put forward by the applicant's counsel concerning the applicant's personality and his state of health were not sufficient grounds for refusing the investigator's request. In particular, no medical documents had been provided to prove that placement in a remand prison was damaging to the applicant's health.
18. The applicant appealed against the ruling of 8 April 2005, claiming that Article 109 of the CCP did not provide for the possibility of extending a period of detention pending additional investigation.
19. On an unspecified date the applicant requested the Oktyabrskiy District Court of St Petersburg to declare that the prosecutor had not received the case file from the trial court as required by the ruling of 24 March 2005.
20. On 26 April 2005 the Oktyabrskiy District Court of St Petersburg held a hearing on the complaint, during which the applicant was advised that the case file had already been sent to the prosecutor. The applicant then brought another complaint about the prosecutor's actions between 5 and 8 April 2004, claiming that the latter had failed to take the requisite measures to ensure the applicant's release from custody. The court dismissed the complaint, stating that the prosecutor's actions were lawful, and observed that the ruling could be appealed against to the St Petersburg City Court within ten days from the date of its delivery.
21. It follows from the parties' submissions that the applicant did not appeal against the ruling of 26 April 2005.
22. On 5 May 2005 the Kuybyshevskiy District Court of St Petersburg granted a request lodged by the St Petersburg City Prosecutor to extend the applicant's detention for one month to 5 June 2005 so that the aggregate term of his detention amounted to nine months and five days. The applicant and his counsel P. objected on the grounds that the court had no evidence of the applicant's intention either to abscond or to engage in further criminal activity. The court dismissed the objections and ordered the extension of the applicant's detention on the same grounds as those given in the ruling of 8 April 2005. The applicant's counsel P. was a legal-aid lawyer appointed by the court. At the beginning of the hearing the applicant applied to the court to have counsel replaced because he wished to be assisted by his own counsel, B., who had not been notified of the hearing. The court found that counsel B. had been notified by telephone of the hearing that had initially been scheduled for 4 May 2005. However, she had neither appeared nor provided any documents justifying her failure to do so. The hearing had then been postponed to 5 May 2005 and counsel B. had been notified accordingly. However, she had said that she could not attend the hearing because she was involved in other proceedings. Nevertheless, she had failed to provide any supporting documents. The applicant appealed.
23. On 12 May 2005 the final bill of indictment was drawn up.
24. On 13 May 2005 the case was sent to the trial court.
25. On 14 May 2005 the trial court received the case file.
26. On 27 May 2005 the trial court scheduled a hearing for 5 July 2005. It also ordered that the preventive measure imposed on the applicant was to remain unchanged.
27. On 15 June 2005 the St Petersburg City Court dismissed the applicant's appeal against the ruling of 8 April 2005. The appeal court held that when a case was returned to the prosecutor, new time-limits for the investigation were to be fixed and a decision concerning a preventive measure was to be taken accordingly. It also upheld the first-instance court's findings that, if released, the applicant might abscond and engage in further criminal activity.
28. On 12 July 2005 the St Petersburg City Court dismissed the applicant's appeal against the trial court's ruling of 5 May 2005. The appeal court upheld the first-instance court's conclusion that, if released, the applicant might abscond, engage in further criminal activity and hinder the prosecution. It also found that counsel B. had been duly notified of the hearing of 5 May 2005. However, she had not appeared and had failed to provide appropriate justification.
29. On 22 November 2005 the St Petersburg City Court dismissed the applicant's appeal against the ruling of 14 May 2005.
30. On 10 October 2006 the trial court sentenced the applicant to five years and two months' imprisonment.
31. On 19 February 2007 the applicant's sentence became final.
32. On 4 April 2007 the St Petersburg City Court dismissed the applicant's appeal against the decision of the Oktyabrskiy District Court of St Petersburg of 26 April 2005 concerning his complaint about the prosecutor's inaction. It held, in particular, that the prosecutor had requested authorisation of the applicant's detention for a period including the days that had preceded the court's ruling, that is, between 5 and 8 April 2005. It rejected the applicant's argument that his detention during that period had been unlawful, for the reason that “there was a judicial decision extending the detention for the period from 5 to 8 April 2005”. No reference as to which judicial decision had authorised that period was given.
33. On 30 April 1997 the applicant was diagnosed with hepatitis C. He underwent treatment between 30 April and 26 May 1997 and was subsequently diagnosed with chronic hepatitis C.
34. On 20 May 2004, on his admission to remand prison IZ 47/1, the applicant was diagnosed as HIV-positive on the basis of a routine blood test.
35. According to the applicant, his state of health had been deteriorating since October 2004. He had shown symptoms of immunodeficiency and there had been bad bouts of his chronic illnesses. The applicant had applied to the medical unit of the remand prison for treatment to boost his immune system. In reply, he had been advised to take aspirin, papaverine and analgesics. After the applicant had stated that this treatment would obviously be insufficient, he had been threatened with confinement in a solitary cell.
36. On 29 October 2004 the applicant was placed in solitary cell no. 129 in wing 2/1 with restricted access. The wing was designed for the detention of inmates sentenced to life imprisonment.
37. On 19 January 2005 the applicant was transferred to solitary cell no. 123 in wing 2/1 with restricted access. According to the applicant, the cell was the equivalent of a disciplinary cell. However, he had neither requested to be placed in solitary confinement, nor had there been any grounds for such placement since he had not broken prison rules. The cell was in the basement where there was no central heating, and the winter temperature there was about 7-10oC.
38. On account of the conditions of detention in the solitary cell the applicant's health had deteriorated further. He had been put on a special diet which included a supplementary daily portion of margarine and sugar. Despite his regular requests, he had never been provided with either antiviral treatment or treatment stimulating liver function and had been offered only febrifuges and analgesics. Medical staff of the remand prison had stated that they had no medicines for HIV-positive prisoners because of lack of funding.
39. The applicant requested to be placed in a hospital in August and September 2004. However, he was refused admission to the hospital at remand prison IZ 47/1 on the grounds that there were too many HIVpositive patients and not enough places. He was likewise refused admission to the hospital of the Federal Penitentiary Service, because the hospital only treated convicted prisoners and did not have the status of a remand prison.
40. The applicant lodged numerous complaints concerning his inadequate medical assistance. However, he did not receive any formal replies to his complaints or a formal refusal to place him in a hospital. The replies he received were given in the course of private conversations. Nor was he provided with any documents confirming that his complaints had been forwarded to the appropriate authorities. According to the applicant, the officials of the remand prison had forwarded only his correspondence relating to his criminal case and had not provided his counsel B. with the medical documents contained in his personal file.
41. While detained in IZ-47/1 the applicant was on several occasions examined by specialist doctors and general practitioners.
42. On 21 May 2004 the applicant was examined by a medical commission composed of a general practitioner, a surgeon, a psychiatrist and a dermatologist. He made no complaints concerning his state of health.
43. On 22 May 2004 the applicant underwent a chest X-ray. No pathological condition was discovered.
44. On 25 May 2004 a blood test carried out on the applicant indicated that he was HIV-positive.
45. On 3 June 2004 the applicant underwent a complex medical checkup at the Botkin City Clinical Hospital of St Petersburg and was diagnosed with stage 2Б HIV infection.
46. On 24 June 2004 the applicant was examined by an infectiousdisease specialist. He was also registered as HIV-positive with the IZ-47/1 infirmary and was prescribed a special diet.
47. Between 24 June and 12 July 2004 the applicant was treated by a dermatologist for an acute skin disease (parasitical dermatitis) and was cured.
48. Between August and September 2004 the applicant did not request to be admitted to hospital.
49. On 30 September 2004 the applicant underwent a routine check-up with a general practitioner. He made no complaints concerning his state of health.
50. On 26 July and 25 November 2004 the applicant underwent chest Xrays, which did not detect any pathological condition.
51. On 11 January and 27 July 2005 the applicant was examined by a general practitioner and was found to be in a satisfactory state of health. He did not make any complaints.
52. On 26 February 2006 a general practitioner examined the applicant and found no medical data to confirm that the HIV infection had progressed.
53. On 15 March and 20 October 2006 and on 19 March 2007 the applicant underwent chest X-rays, which did not reveal any pathological condition.
54. On 22 October 2006 and 12 April 2007 the applicant was examined by a general practitioner. A general blood test carried out on 12 April 2007 showed no pathological changes in the blood.
55. The applicant's HIV infection had not been clinically manifested. The applicant did not require antiretroviral therapy.
56. According to a certificate issued by the authorities of the remand prison on 19 April 2007, the applicant's state of health had not deteriorated since 21 May 2004, he had not lost any weight and his lymph glands had not been dilated.
57. While in IZ-47/1, the applicant was detained in cells nos. 781, 170, 226, 188, 749 and 123. Cell no. 781 measured 9.8 square metres; each of the remaining five cells measured 7.5 square metres.
58. The Government could not submit information on the number of inmates who had shared cells with the applicant owing to the fact that the registration logs had been destroyed.
59. Every cell in which the applicant was kept was equipped with a lavatory pan, a flush tank and a sink, which were separated from the sleeping area by a curtain. There was running hot and cold water supplied by the city water system in each cell.
60. The applicant and other inmates washed themselves and had their bedding changed once a week.
61. Every cell in which the applicant was kept had access to daylight through windows; they were also equipped with lamps. All cells had both natural and mandatory ventilation systems. The cells were equipped with tables, benches and necessary utensils. The windows were glazed and had air ducts. The cells had a central heating system connected to the remand prison's boiler house. The average temperature in the cells was between 18oC (in winter) and 22oC (in summer).
62. The applicant was at all times provided with an individual sleeping place and bedding.
63. While in the remand prison, the applicant was fed three times a day. From 26 June 2004 he received a special diet. The food available to the applicant was in compliance with the relevant standards and regulations.
64. The applicant was allowed to have a daily one-hour walk during which he could perform physical exercises.
65. The cells were regularly cleaned and disinfected.
66. On 29 October 2004 the applicant was placed in cell no. 123, where he was kept in solitary confinement to secure his safety. The cell was heated by the remand prison's boiler house.
67. According to a certificate of microclimate measurement provided by the Government, on 2 December 2004, when the outside temperature was1oC, the level of humidity in cell no. 123 amounted to 75% (50% being normal), the temperature in the cell was 17oC (19oC to 21oC being normal) and the level of lighting was 40 lx (90 lx being normal).
68. According to a certificate of 19 April 2007 issued by the remand prison authorities, microclimate measurements in the remand prison cells were taken once a month; the average temperature in the cells was 18oC in winter and 22oC in summer.
69. According to a certificate on the sanitary conditions in cell no. 123, on 14 December 2004 the cell was in a satisfactory condition. It was equipped with a sink and a lavatory pan; the sanitary installations were in order. There was hot and cold running water, natural ventilation, central heating, natural light and one light bulb. The cell measured 216 cm (width) by 354 cm (length) by 230 cm (height). The cell was designed to accommodate four persons. There was a window measuring 108 cm by 100 cm. The cell had been renovated in November 2003.
70. The applicant did not lodge any complaints concerning the conditions of his detention with the remand prison authorities or with prosecutors' offices.
71. The applicant submitted written statements by Mr A.M. and Mr N.M.
72. Mr A.M., who had been sentenced to life imprisonment, was kept in cells nos. 120, 122, 126, 128 and 141 of wing 2/1 of the remand prison on various occasions between June 2004 and July 2007. In his submission, wing 2/1 was reserved for inmates sentenced to life imprisonment at first instance pending the examination of their cases on appeal. The conditions of detention in all the cells were nearly identical. There were no chairs or desks in the cells. The beds were made of concrete. The cells were in a deplorable state. The humidity was high. There was no hot water or heating. The temperature in the cells in winter was as low as outside. There was no mandatory ventilation. Lavatory pans were not separated from the rest of the cells. All inmates in wing 2/1 were kept in solitary confinement. Access to the wing was limited. Paramedics occasionally visited the wing but claimed that they had no medication. At some point in 2005 Mr A.M. had a glimpse inside cell no. 123 and saw that it was no different from the cells in which he had been kept, save for the fact that there was an iron bed, not a concrete one. He also repeatedly heard the applicant asking paramedics for medication.
73. Mr N.M. was sentenced to life imprisonment. He was kept in cell no. 121 of wing 2/1 of the remand prison. In his submission, all the cells in the wing were nearly identical. There was no furniture in the cells. The temperature in the cells in winter was as low as 3oC. There was no hot water. The cells were very humid so that the walls were covered with mould. The lavatory pans were not secluded. The food was of poor quality. Medical personnel rarely visited the wing and did not have effective medication. Mr N.M. had overheard the applicant's numerous complaints to the remand prison authorities concerning his state of health. Initially the applicant had been placed in cell no. 129 and in January 2005 he had been transferred to cell no. 123.
74. After arrest the suspect is placed in custody “pending investigation”. The period of detention “pending investigation” cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level further to a request lodged by a prosecutor (or an investigator or inquirer with a prosecutor's prior approval) (Article 109 § 2). Further extensions up to twelve months may be granted on an investigator's request approved by a prosecutor of the Russian Federation only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). The period of detention “pending investigation” is calculated up to the date on which the prosecutor sends the case to the trial court (Article 109 § 9).
75. From the time the prosecutor sends the case to the trial court, the defendant's detention is “pending trial”. The period of detention “pending trial” is calculated up to the date on which the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
76. The trial judge can return the case to the prosecutor for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. The judge must require the prosecutor to comply within five days (Article 237 § 2) and must also decide on a preventive measure in respect of the accused (Article 237 § 3). By Federal Law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the term of detention with due regard to the time-limits in Article 109 of the Code.
77. HIV-positive persons have the right to receive all types of medical assistance required by clinical data. They enjoy all the rights guaranteed by laws of the Russian Federation on public health protection (section 14).
78. On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-P on a complaint lodged by a group of individuals concerning the de facto extension of detention after the transfer of a case file to a trial court by the prosecution. In part 3.2 of the ruling the Constitutional Court held:
“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released ...
These rules are common to all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to a preventive measure applied at previous stages.”
79. The Ministry of Health of the Russian Federation, by its Decree No. 474 of 9 July 2007, adopted Standards of Medical Assistance Rendered to HIV-positive Persons (“the Standards”), which were recommended for use in State-owned and municipal health-care institutions.
80. According to the Standards, adult HIV-positive persons suffering from the disease in stages 2A, 2Б, 2В, 3, 4А, 4Б and 4В require CD4 testing as a diagnostic measure once every twelve months.
81. The 11th General Report (CPT/Inf (2001) 16) prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning transmissible diseases reads, in so far as relevant, as follows:
“31. The spread of transmissible diseases and, in particular, of tuberculosis, hepatitis and HIV/AIDS has become a major public health concern in a number of European countries ...
... [T]he act of depriving a person of his liberty always entails a duty of care ...
The use of up-to-date methods for screening, the regular supply of medication ... constitute essential elements of an effective strategy ... to provide appropriate care to the prisoners concerned.
... [T]he prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds. In this connection, the CPT wishes to stress in particular that there is no medical justification for the segregation of prisoners solely on the grounds that they are HIV-positive.”
82. The relevant parts of the Appendix to Recommendation no. R (98) 7 of the Committee of Ministers of the Council of Europe to Member States concerning the ethical and organisational aspects of health care in prison read as follows:
“38. The isolation of a patient with an infectious condition is only justified if such a measure would also be taken outside the prison environment for the same medical reasons.
39. No form of segregation should be envisaged in respect of persons who are HIV antibody positive, subject to the provisions contained in paragraph 40.
40. Those who become seriously ill with Aids-related illnesses should be treated within the prison health care department, without necessarily resorting to total isolation. Patients, who need to be protected from the infectious illnesses transmitted by other patients, should be isolated only if such a measure is necessary for their own sake to prevent them acquiring intercurrent infections ...”
83. The 1993 Guidelines on HIV infection and AIDS in prisons issued by the World Health Organization (WHO) read, in so far as relevant, as follows:
“27. Since segregation, isolation and restrictions on occupational activities, sports and recreation are not considered useful or relevant in the case of HIV-infected people in the community, the same attitude should be adopted towards HIV-infected prisoners. Decisions on isolation for health conditions should be taken by medical staff only, and on the same grounds as for the general public, in accordance with public health standards and regulations. Prisoners' rights should not be restricted further than is absolutely necessary on medical grounds, and as provided for by public health standards and regulations ...
28. Isolation for limited periods may be required on medical grounds for HIVinfected prisoners suffering from pulmonary tuberculosis in an infectious stage. Protective isolation may also be required for prisoners with immunodepression related to AIDS, but should be carried out only with a prisoner's informed consent. Decisions on the need to isolate or segregate prisoners (including those infected with HIV) should only be taken on medical grounds and only by health personnel, and should not be influenced by the prison administration ...
32. Information regarding HIV status may only be disclosed to prison managers if the health personnel consider ... that this is warranted to ensure the safety and wellbeing of prisoners and staff ...”
84. The WHO published on 30 November 2009 a document entitled “Rapid Advice: Antiretroviral Therapy for HIV Infection in Adults and Adolescents”. The recommendations concerning the commencement of administering treatment are as follows. It is strongly recommended to start antiretroviral treatment in all patients with HIV who have a CD4 count of lower than 350 cells per mm3 irrespective of clinical symptoms. CD4 testing is required to identify if HIV-positive patients with WHO clinical stage 1 or 2 disease need to start antiretroviral treatment. Furthermore, it is strongly recommended to start antiretroviral treatment in all patients with HIV with WHO clinical stage 3 or 4 irrespective of CD4 count.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1