ITEMID: 001-58239
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF AQUILINA v. MALTA
IMPORTANCE: 1
CONCLUSION: Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. The applicant, Joseph Aquilina, is a Maltese national, born in 1974 and resident in Qormi, Malta. At the relevant time, the applicant, who was a handyman, had an affair with a 15-year-old girl, whom he subsequently married.
8. The applicant was arrested by the police on 20 July 1992 and detained for interrogation for two days.
9. On 22 July 1992 at around 11 a.m. he was brought before a magistrate of the Court of Magistrates. The charge was read out by a police inspector. It was alleged in the charge that the applicant had defiled his girlfriend in a public place (an offence involving sexual acts) and threatened her family. The applicant pleaded not guilty.
10. The applicant claims – without this having been commented on by the Government – that his counsel requested his unconditional release invoking his youth and the absence of any reasons for detaining him. The magistrate requested the applicant’s counsel to lodge an application for bail. The applicant’s counsel lodged a bail application in which it was stated that the applicant denied all the accusations against him and, in view of his youth and other relevant circumstances, requested to be granted provisional release.
On 23 July 1992 the acting registrar of the Court of Magistrates communicated the application to the Attorney-General who was given two days in which to reply.
11. On 24 July 1992 the Attorney-General opposed the bail application and the magistrate before whom the applicant had been brought on 22 July decided to adjourn the examination of the case.
12. On 31 July 1992 a different magistrate, acting as a court of inquiry, after hearing evidence from the alleged victim (but not from the applicant), ordered the applicant’s release.
13. On 1 March 1993 the applicant was found guilty of defilement in a public place. The magistrate, having regard to the absence of violence, the applicant’s youth, his previous good conduct, the fact that he was engaged to the girl and that most of the sexual acts took place while he was under 18, discharged the applicant on probation.
14. On 23 July 1992 the applicant made a constitutional application to the First Hall of the Civil Court arguing that there had been a violation of Article 5 § 3 of the Convention in that the magistrate before whom he had appeared the day before did not have the power to order his release at that stage. Since he was facing charges attracting a maximum sentence of more than three years’ imprisonment, the application for bail had to be communicated to the Attorney-General before a decision could be taken on it. Moreover, the acting registrar had not communicated the application to the Attorney-General on the same day, as the law prescribed, but on the following day.
15. It was decided that the applicant’s constitutional application would be heard on 30 July 1992.
16. On 30 July 1992 the First Hall of the Civil Court, having noted that the applicant had not been notified of the hearing, decided to adjourn the examination of his constitutional application until 6 August 1992.
17. The First Hall pronounced on the applicant’s constitutional application on 25 November 1993. It briefly reviewed the proceedings in the applicant’s case, noting that on 22 July 1992 the applicant had lodged a bail application which was communicated to the Attorney-General on 23 July 1992; that the Attorney-General had opposed it within less than twenty-four hours; that on 24 July 1992 the Court of Magistrates had deferred judgment; and that on 31 July 1992 it had decided to release the applicant after the victim had given evidence. On the substance of the application the First Hall held that the provisions of Article 575 of the Criminal Code, which required written notification of the Attorney-General, were inconsistent with the provisions of Article 5 § 3 of the Convention in failing to provide for the prompt consideration of the application for bail. It also found a breach of Article 5 § 3 in the time taken by the acting registrar to notify the Attorney-General. The court awarded the applicant 100 Maltese liras by way of compensation.
18. The respondents in the action – the Commissioner of Police, the acting registrar, the Attorney-General and the Prime Minister – appealed to the Constitutional Court.
19. On 13 June 1994 the Constitutional Court reversed the decision of the First Hall. It found that what had actually occurred did not violate the fundamental human rights of the applicant as guaranteed by Article 5 § 3 of the Convention. It also awarded costs against the applicant.
20. Article 137 of the Criminal Code provides as follows:
“Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall, on conviction, be liable to imprisonment for a term from one to six months.”
21. In its judgment of 7 January 1998 in Carmelo Sant v. Attorney-General the Constitutional Court rejected the appellant’s argument that Article 137 of the Criminal Code only provided for a penalty and not for a remedy. According to the Constitutional Court, if the way in which this Article had been applied were to be examined, the conclusion would be the same as that reached by Chief Justice John J. Cremona. The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of Malta, there are in the Maltese Criminal Code two provisions, namely Articles 137 and 353 which, taken together, may be regarded as providing an equally effective safeguard of personal freedom.
22. The parties before the European Court referred to the following examples of cases in which Article 137 had been invoked.
On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under Article 1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked Article 137 of the Criminal Code, requested the Court of Magistrates to order the acting registrar of the court and the Commissioner of Police to bring Cremona before the court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request.
Ibrahim Hafes Ed Degwej, later christened Joseph Leopold, invoked Article 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application.
On 28 April 1997 Joachim sive Jack Spagnol relied on Article 137 of the Criminal Code to challenge the lawfulness of his prolonged detention pending an investigation into his assets, which had been sequestrated by court order. He claimed that the detention had been unduly prolonged. Moreover, he asserted that he had very little property. On 28 April 1997 the Court of Magistrates transmitted the case file to the Attorney-General and abstained from further consideration of the application.
On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed:
“As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to Article 137 of the Criminal Code.” (unofficial translation from Maltese)
23. Moreover, the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person’s release. The magistrate had this obligation by virtue of the provisions of Article 137 of the Criminal Code. Every person in Malta was assured that an arrest could not last beyond forty-eight hours and the appearance before the magistrate ensured that if the arrested person had any submissions to make, he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority. In connection with habeas corpus decisions, under Article 137 of the Criminal Code the magistrate did not need to hear the Attorney-General. However, since this was an adversarial procedure where the prosecution was led by the police, the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms. This was a power quite separate and distinct from the power to grant bail. If the arrest was found by the magistrate to be unlawful, then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise. Only if there was nothing to show that the arrest was unlawful did the question of bail arise.
24. Article 353 of the Criminal Code, read together with Article 137, is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus (see paragraph 21 above). Article 353 addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows:
“353. (1) Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him.
(2) Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.”
25. The powers of the Court of Magistrates in respect of arrested persons who are brought before it under Article 353 of the Criminal Code were discussed in extenso in the Ellul case.
On 23 December 1990 Nicholas Ellul, who had been arrested on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment, was brought before the Court of Magistrates. He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful.
This request was dealt with by the Court of Magistrates on the same day in the following manner:
“The procedure which should be followed by the Court of Magistrates as a Court of Inquiry is set out in Articles 389 to 409 of the Criminal Code. Sub-article (1) of Article 390 provides how proceedings should start before this Court: it ‘shall hear the report of the police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report’. The time-limit for the conclusion of this inquiry is one month as indicated in Article 401. In no way is the Court bound to hear any evidence in support of the report. Moreover, the fact that the prosecuting officers confirm the report on oath is meant to satisfy the Court that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him.
This Court does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges; after all, in this context, the word ‘report’ means ‘charge’. This is the procedure followed in this case and it is the correct procedure.
Consequently, the Court declares that the requests of the person charged are unfounded and therefore rejects them.” (unofficial translation from Maltese)
Mr Ellul lodged a constitutional application arguing that there had been a breach of Article 5 § 3 of the Convention. On 31 December 1990 the First Hall of the Civil Court found that Article 5 § 3 did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person’s arrest had been made on a reasonable suspicion. Moreover, the court considered that Article 5 § 3 did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest. On 8 January 1991 the Constitutional Court upheld the decision of the First Hall of the Civil Court.
26
“According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution.
The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees.
Therefore what the defence is requesting is outside the functions of this Court.
Having regard to Articles 574(1), 575(2) and 582(1) of the Criminal Code, the Court declares itself not competent to comply with the request and directs the person charged, that if his request for release is to be considered, he has to comply with what is provided in the Articles herementioned.” (unofficial translation from Maltese)
27. The Criminal Code contains the following Articles concerning bail:
“574. (1) Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place.
…
575. …
(2) The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney-General on the same day, whenever it is made by –
…
(c) persons accused of any crime punishable with more than three years’ imprisonment ...
(3) The Attorney-General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition.
…
576. The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable.
577. (1) Security for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed.
(2) It may also be given, whenever the court shall deem it proper, by the mere deposit of the sum or of an equivalent pledge, or by the mere recognisance of the person accused.
…
582. (1) The Court may not ex officio grant bail, unless it is applied for by the person charged or accused.
…”
28. By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta.
29. In its Aquilina judgment of 13 June 1994 (see paragraph 19 above) the Constitutional Court held that judges in Malta have to take into consideration the case-law of the European Court of Human Rights.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-91300
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SAMOKHVALOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1976 and lives in Kurgan, the Kurgan region. He is currently serving a prison sentence in the Kurgan region.
7. On 15 November 2001 the applicant was arrested on suspicion of murder of a certain S. and was placed in detention.
8. On 5 February 2002 the Kurgan Town Court, Kurgan Region (“the trial court”) held a trial in the applicant’s case. The applicant confessed to the murder in part. He submitted that during a quarrel with S. the latter had threatened him with an axe and he (the applicant) had stabbed him several times with a knife in order to defend himself. The Town Court found the applicant guilty of premeditated murder under Article 105 § 1 of the Criminal Code (see “Relevant domestic law and practice” below, paragraph 22) and sentenced him to eleven years and three months’ imprisonment. On 5 March 2002 the Kurgan Regional Court (“the appeal court”) quashed that judgment and remitted the case for fresh examination to the trial court having found, in particular, that the latter had not established whether the victim had had an axe in his hands during the quarrel. On the same date the Regional Court remanded the applicant in custody. The applicant was neither present nor represented by a lawyer at the appeal hearing.
9. On an unspecified date the applicant was additionally charged with several counts of theft. A certain Sch. was charged with concealment of the murder of S. Criminal proceedings against Sch. were joined to those against the applicant.
10. On 22 March 2002 the trial court started the examination of both charges against the applicant and the charges against Sch. At the beginning of the hearing the applicant submitted that he had refused assistance from legal aid counsel and that his refusal was not linked to his financial situation. Lawyer M., who had been provided to the applicant, left the courtroom.
11. The applicant pleaded guilty to theft. As regards the charges of murder, he submitted that he had committed the murder in self-defence because during their quarrel S. had threatened him with an axe. The trial court heard the applicant and his co-accused, the mother of S. and several witnesses including witness K. During the questioning of K. the court rebuked the applicant twice for contempt of court and finally, at the prosecutor’s request, removed the applicant from the hearing for putting pressure on the witnesses. The applicant was absent until the end of the hearing of 22 March 2002. In his absence the trial court continued to hear witness K. and heard witness B. According to the applicant, on 22 March 2002 the trial court also ordered to remove from the hearing everybody except for the victims, their representative, witnesses and his co-accused. The examination of the case continued on 25 March 2002 in the applicant’s presence. The trial court heard seven more witnesses and an expert.
12. On 26 March 2002 the trial court found the applicant guilty of theft and premeditated murder and sentenced him to twelve years’ imprisonment. Having regard to the statements by the witnesses, it found, in particular, that S. had had no axe in his hands at the moment of his murder, and, therefore, the applicant’s version of self-defence had been unfounded. It also held that the applicant’s balance of mind had not been disturbed at the moment of the murder. Sch. was found guilty of concealment of murder and was sentenced to one year’s imprisonment.
13. The judgment stated that the applicant could lodge an appeal against it within seven days of the date he received its copy. The record of the hearing stated that the time-limits and the procedure for appealing against the judgment had been explained [to the parties].
14. On an unspecified date the applicant lodged his remarks on the record of the hearings of 22 and 25 March 2002 with the trial court. He submitted that the record of the hearing had not mentioned exactly when he had returned to the hearing. He also complained that he had not been given the opportunity to read the record of the questioning of witnesses which had taken place in his absence.
15. On 10 June 2002 the trial court admitted the applicant’s remarks to the file. It also found that the applicant had returned to the hearing at 10 a.m. on 25 March 2002, that the testimony given in his absence had been read out to him and that he had been offered the opportunity to question witnesses K. and B., which he had refused. The trial court ordered that the record of the hearings be amended accordingly.
16. The applicant, but not Sch., appealed against the judgment of 26 March 2002. He argued in the first place that the trial court’s conclusion that S. had no axe in his hands had been inconsistent with the facts of the case and the evidence submitted in the trial. His actions should have been recharacterised as a murder committed as a result of exceeding the limits of necessary defence under Article 108 of the Criminal Code (see “Relevant domestic law and practice” below, paragraph 23), because S. had threatened him with an axe. He further submitted that the trial court had wrongly applied to him a rule on repetition of crimes, which had resulted in a heavier sentence. Finally, he complained that two women had been removed from the hearing of 22 March 2002. In his additional grounds of appeal the applicant submitted that the trial court had removed from the hearing people who had come to support him and left only the relatives and friends of the victims. He requested the appeal court to quash his conviction of premeditated murder and adopt a new judgment. When lodging his appeal the applicant did not expressly state that he wished to take part in the appeal hearing.
17. On 27 June 2002 the applicant received a notification that the appeal hearing would be held on 1 July 2002. The notification stated that personal appearance at that hearing was not obligatory.
18. On 1 July 2002 the appeal court held a hearing in the applicant’s absence. The applicant was not represented at that hearing. The appeal court heard the mother of S. and her representative, who considered that the applicant should be convicted of murder, committed with particular cruelty, and a more severe penalty should be imposed. They asked for the judgment to be quashed and the case remitted for fresh consideration to the trial court. The appeal court also heard the prosecutor.
19. Having studied the materials of the case, the appeal court found, in particular, that the trial court had rightly concluded on the basis of evidence and witnesses’ testimony that S. had no axe and had not represented a serious danger to the applicant. It further confirmed the trial court’s conclusion that the applicant’s balance of mind had not been disturbed when he had committed the murder. The appeal court concluded that the trial court had correctly characterised the applicant’s actions as premeditated murder and had imposed an appropriate sentence. On the same date it upheld the judgment of 26 March 2002 in its totality.
20. It does not appear from the decision of 1 July 2002 that the appeal court verified whether the applicant had been duly informed of the hearing and of the procedure to follow to take part in it, and whether he had expressed a wish to take part in it.
21. Article 37, as worded at the material time, provided that it had not to be deemed a crime when harm was inflicted in the state of necessary defence against an attacking person provided that the limits of necessary defence had not been exceeded. Premeditated actions which clearly did not match the character and danger of the attack had to be deemed exceeding the limits of necessary defence.
22. Article 105 § 1 defines murder as the intentional causing of death to another person which shall be punishable with deprivation of liberty for a term of six to fifteen years.
23. Article 108 provides that murder committed in excess of the limits of necessary defence shall be punishable by deprivation of liberty for a term of up to two years or by restraint of liberty for the same term.
24. Article 335 § 1 provided that during the examination of the case on appeal the public prosecutor would give his opinion as to whether a judgment delivered by the trial court was lawful and well-founded. Defence counsel could also take part in the appeal hearing. Article 335 § 2 stated that a decision regarding the defendant’s participation at the hearing was taken by the appeal court and that a defendant who appeared before the court was always entitled to give evidence.
25. In Ruling of 10 December 1998, the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCrP incompatible with the Constitution in so far as this provision enabled appeal courts to take a final decision in the case where it had rejected a defendant’s request to attend an appeal hearing without giving him or her the opportunity to study the materials of the hearing and state his or her opinion on the issues examined by the court.
26. Article 336 provided that persons who had lodged appeals were to be apprised of the date of the appeal hearing if it was to be held before courts lower than the Supreme Court of Russia. If an appeal was to be examined by the Supreme Court, an appellant had to be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal. Failure to appear by persons who had been duly notified of the hearing did not preclude examination of the case.
27. Article 360 establishes the scope of the examination of the case by an appeal court. It provides that the appeal court shall verify the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence.
28. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he shall indicate that in his statement of appeal.
29. Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. Whether a convicted person held in custody shall be summoned shall be decided by the court. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing. Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case.
30. Article 377 describes the procedure for examining cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party.
31. Article 378 establishes which decisions may be taken by the appeal court. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment.
32. Article 379 sets out the grounds for quashing or setting aside judgments by way of appeal. In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, shall also constitute grounds for reversing or changing the judgment.
33. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application as a private prosecution, the victim or his representative to that effect.
34. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply a law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply a law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-101676
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF OSYPENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;
Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1983 and lives in Slovyansk.
6. On 1 January 2002 the applicant, with a number of his friends, including K., celebrated a New Year party at the bar 'Tor' in Slovyansk. At around 3 a.m. K. picked a quarrel with P., another visitor to the bar. The quarrel turned into a big fight in which the applicant took part on the side of K.
7. On 14 January 2002 the Slavyansk town police instituted criminal proceedings for disorderly conduct in relation to the above fight.
8. In the evening of 24 January 2002 the applicant and K. were attacked by unknown persons. As a result of the attack, the applicant was injured and K. died.
9. At 2.30 a.m. on 25 January 2002 the police officers, in the knowledge that the applicant and K. were both attacked that night, visited the applicant's home and took him to the local police station in order to question him as an eyewitness to K.'s death. According to the Government, the applicant agreed to go to the police station voluntarily and there was no coercion on the part of the police officers. However, according to the applicant, the police officers forced him to go to the police station without regard for the injuries he was visibly suffering from.
10. Upon arrival at the police station the applicant was questioned about the circumstances of K.'s death. That questioning, though with some pauses, lasted until 1 p.m. of the same day.
11. As from 11 a.m. on that day the police, knowing that on the night of 1 January 2002 the applicant had been present at the bar 'Tor', decided also to question the applicant as a witness in respect of the fight which had taken place at the bar that night. The applicant was questioned in respect of that incident till 7 p.m.
12. Between 7 p.m. and 9 p.m. the police also questioned P. and other victims of the fight, who, when confronted with the applicant, identified him as one of the persons who had injured them.
13. At 9.30 p.m. on that day the police investigator, pursuant to Articles 106 and 115 of the Code of Criminal Procedure (see paragraph 33 below), drew up an arrest order (протокол затримання) authorising the applicant's preliminary detention as a suspect in the crime of disorderly conduct in the bar 'Tor'.
14. On 26 January 2002 the police instituted criminal proceedings on account of K.'s death.
15. On 28 January 2002 the applicant was charged with the crime of disorderly conduct in the bar 'Tor', and brought before the Slavyanskyy Town Court (the “Town Court”). The Town Court, relying on Article 165-2 of the Code of Criminal Procedure, extended the applicant's preliminary detention, as a temporary preventive measure, up to 31 January 2002. It noted that the case file did not contain sufficient information characterising the applicant and, in particular, the evidence that the applicant might intend to abscond.
16. On 31 January 2002 the Town Court ordered the applicant's detention in custody as a preventive measure. It had regard to the “character of the applicant”, the circumstances in which the crime had been committed, the fact that he had been charged with a serious crime, and the necessity to ensure the execution of procedural decisions.
17. On 26 April 2002, after the investigation had been completed, the case file was transferred to the Town Court for committing the applicant for trial.
18. On 11 May 2002 the Town Court committed the applicant for trial. It also upheld the preventive measure, in respect of the applicant, without giving any reasons.
19. On 12 August 2002 the Town Court decided to maintain the preventive measure (the detention in custody) in respect of the applicant. It did not provide any specific reasons for that decision.
20. On 4 April 2003 the applicant lodged an application with the Town Court alleging that, on 25 January 2002, he had been unlawfully taken to the police station and unlawfully held there until 28 January 2002, despite his bodily injuries and the absence of any medical assistance. He further contended that his subsequent pre-trial detention had been unlawful.
21. On 22 May 2003 the Deputy President of the Town Court replied to the applicant and informed him that it was too late to challenge the lawfulness of his preliminary detention between 25 and 28 January 2002 as the case was at the trial stage. He further stated that the application of 4 April 2003 would be qualified as an ordinary request, submitted by a party to the proceedings, and that therefore it could only be considered in the course of the court hearing in his criminal case. He informed the applicant that the application would be considered on 26 June 2003.
22. Subsequently, the judge in charge of the applicant's criminal case confirmed to the applicant that his application of 4 April 2003 for review of the lawfulness of his detention would be considered on 26 June 2003 in the course of the court hearing in his criminal case.
23. On 26 June 2003 the Town Court, referring to the seriousness of the charges levelled against the applicant, found, in the presence of his counsel, that the applicant was being detained lawfully and that there had been no grounds to change the preventive measure. In this decision the Town Court did not address the issue of the applicant's preliminary detention.
24. On 4 November 2003 the Town Court considered the applicant's request to change the preventive measure and rejected it, noting that the applicant's further detention had been necessitated by the gravity of the charges levelled against him.
25. On an unspecified date the applicant complained to the Slavyansk Town Prosecutor's Office seeking to institute criminal proceedings against the police officers for his unlawful preliminary detention.
26. On 26 March 2004 the deputy prosecutor refused to institute criminal proceedings against the police officers. He found that on 25 January 2002 the applicant had agreed to go to the police station voluntarily with the purpose of being interviewed concerning the death of K. The deputy prosecutor further noted that the applicant had later been questioned as a witness to the fight in the bar 'Tor'. In particular, at 3 p.m. of that day the applicant had been transferred to the police officer D. Between 3 p.m. and 7 p.m. the applicant had been questioned by that police officer following which “the applicant's guilt in the fight had been established”. Later on, the applicant had been arrested because there had been enough evidence of his involvement in the latter crime. The deputy prosecutor therefore concluded that there had been no actus reus in the acts of the police officers. The applicant did not lodge a formal appeal against the prosecutor's decision of 26 March 2004.
27. Subsequently, the Town Court informed the applicant that the lawfulness of his preliminary detention would be reviewed in the course of the trial in his criminal case.
28. On 24 May 2004 the Town Court considered the applicant's other request for changing the preventive measure and found that the applicant's detention had been justified by the gravity of the charges levelled against him. It therefore held that the preventive measure should be left unchanged.
29. On 7 June 2004 the Town Court found the applicant guilty of disorderly conduct and sentenced him to four years' imprisonment, but on the basis of the Amnesty Act released him from serving the sentence. It also noted that the applicant's preliminary detention had been lawful and no wrongdoing on the part of the police officers could be discerned. The Town Court further ordered that the applicant be released from custody immediately.
30. By letters of 16 July and 4 August 2004 the Town Court informed the applicant that the lawfulness of his preliminary detention had been reviewed in the judgment of 7 June 2004.
31. On 11 February and 27 October 2005 the Donetsk Regional Court of Appeal and the Supreme Court upheld the judgment of 7 June 2004 as substantiated.
32. The relevant part of Article 29 of the Constitution reads as follows:
“... In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of the holding in custody. ...
Everyone who has been detained has the right to challenge his or her detention in court at any time. ...”
33. The relevant provisions of the Code read as follows:
“A person, summoned as a witness by a body of inquiry, investigator, prosecutor, or a court, is obliged to appear at the specified time and place and make truthful statements about the circumstances of the event to the best of his or her knowledge.
If the witness fails to appear without a valid reason, the body of inquiry, the investigator, the prosecutor, or the court may order the witness's compulsory appearance which shall be enforced by the bodies of internal affairs, pursuant to the procedure provided for by Articles 135 and 136 of this Code. ...”
“... If it is necessary to verify a statement or notification of a crime before instituting criminal proceedings, such verification is made by the prosecutor, investigator, or a body of inquiry within ten days by taking explanations from specific citizens or officials or by requesting necessary documents.
A statement or notification of crime can be verified, prior to instituting criminal proceedings, by means of the search and seizure activities. ...”
“The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds:
1. if the person is discovered whilst or immediately after committing an offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found either on the body of the suspect, or on his clothing, or with him, or in his home.
If there is other information giving ground to suspect a person of a criminal offence, a body of inquiry may arrest such a person if the latter attempted to flee, or does not have a permanent place of residence, or the identity of that person has not been established.
For each case of a suspect's arrest, the body of inquiry shall be required to draw up an arrest order (протокол затримання) outlining the grounds, the motives, the day, time, year and month, the place of arrest, the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The arrest order shall be signed by the person who drew it up and by the detainee.
A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor. At the request of the prosecutor, the material which served as a ground for the arrest shall be sent to him as well. ...
Within seventy-two hours of the arrest, the body of inquiry shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If the arrest is appealed against to a court, the detainee's complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after the term of seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful.
The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court's ruling.
Preliminary detention of a suspect shall not last for more than seventy-two hours.
If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up the order to that effect, and shall inform the official or body that carried out the arrest accordingly.”
“The pre-trial investigation shall be carried out exclusively after the criminal proceedings have been instituted and in accordance with the procedure provided for by this Code. ...”
“An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.”
“... The valid reasons for failure to appear before investigator at the requested time shall be the following: a belated receipt of the summons, illness, and other circumstances preventing the accused from attending the investigator at the requested time.”
“Compulsory appearance of the accused shall be ordered by the investigator's decision. Compulsory appearance of the accused shall be enforced in the daytime except for emergencies.
Compulsory appearance without prior notice may be applied only if the accused evades investigation or does not have a permanent place of residence.
Before its enforcement, the decision on applying the compulsory appearance shall be announced to the accused.”
“Preventive measures shall be imposed on a suspect, accused, defendant, or convicted person in order to prevent him from attempting to abscond from an inquiry, investigation or the court, from obstructing the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the execution of procedural decisions.
Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from investigation and the court, or if he fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. ...”
“The preventive measures are as follows:
(1) a written undertaking not to abscond;
(2) a personal guarantee;
(3) the guarantee of a public organisation or labour collective;
(3-1) bail;
(4) detention in custody;
(5) supervision by the command of a military unit.
As a temporary preventive measure, a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles 106, 115 and 165-2 of this Code.”
“At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, the investigator, or the prosecutor.
If there are grounds for applying a custodial preventive measure, the body of inquiry or the investigator, following the prosecutor's consent, shall lodge an application with the court. The prosecutor is entitled to lodge a similar application. In determining this issue, the prosecutor shall familiarise himself with all the material in the case file that would justify placing the person in custody, and verify that the evidence was received in a lawful manner and is sufficient to bring charges against the person.
The request shall be considered within seventy-two hours of the arrest of the suspect or accused.
If the application concerns the detention of a person who is at liberty, the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court. The preliminary detention in such cases shall not exceed seventy-two hours; and if the person concerned is outside the locality in which the court operates, it shall not exceed forty-eight hours from the time the arrested person was brought to the locality.
Upon receiving the application, the judge shall examine the material in the case file submitted by the body of inquiry, the investigator, or the prosecutor. A judge shall question the suspect or the accused and, if necessary, hear evidence from the person who is in charge of the criminal case, obtain the opinion of the prosecutor, the defence counsel, if the latter appeared before the court, and make an order:
(1) refusing to apply the [custodial] preventive measure if there are no grounds for doing so;
(2) applying the custodial preventive measure.
Having refused to apply the custodial preventive measure, the court shall have the power to apply a non-custodial preventive measure in respect of the suspect or the accused.
The judge's order may be appealed against to the court of appeal by the prosecutor, the suspect, the accused or his or her defence counsel or the legal representative, within three days of its delivery. The introduction of an appeal shall not suspend the execution of the judge's order.
If in order to select a preventive measure in respect of a detained person it is necessary to examine additional material concerning the personality of the detained person or to clarify the other circumstances that are important for the adoption of the decision on this matter, the judge may extend the applicant's preliminary detention up to ten days or, if requested by the suspect or the accused, up to fifteen days. If it is necessary to examine additional material concerning the person who has not been arrested, the judge may adjourn the consideration of this issue for up to ten days and take measures for ensuring the proper conduct of that person or make an order that that person be arrested and detained for the same period.”
“The witness shall be summoned by the investigator with a notice, which shall be given to the witness against receipt. In case of the witness's temporary absence the notice shall be given to any adult member of his family... The witness may also be summoned by a telegram or by a telephone message. ...”
34. Section 6 of the Law establishes that the grounds for carrying out the search and seizure activities shall be, among other things, sufficient information, which has been lawfully obtained but needs to be verified by means of search and seizure activities, that a crime is being prepared or has been committed.
35. Section 8 of the Law provides, inter alia, that in the event of the existence of the grounds to carry out search and seizure activities, the relevant authorities shall have a right to interview the persons upon their consent.
36. Section 11 of the Law provides that for the purpose of fulfilling its tasks the police have a right, inter alia, to summon citizens in connection with the criminal and other cases that the police are dealing with; to carry out inquiry in criminal cases in accordance with the legislation on criminal procedure.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-79564
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TATISHVILI v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of P4-2;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1939 in Tbilisi, Georgia. She was a citizen of the former USSR and continued to hold its citizenship until 31 December 2000; thereafter she became a stateless person. The applicant lives in Moscow.
8. On 25 December 2000 the applicant applied to the passport department at the “Filevskiy Park” police station in Moscow for residence registration. She produced her USSR passport, a consent form signed by the flat owner and certified by the housing maintenance authority, an application form for residence registration, a document showing payment of housing maintenance charges and an extract from the residents’ list.
9. The Director of the passport department refused to process the application for residence registration. He told the applicant that she could not be registered because she was not a relative of the flat owner.
10. The applicant insisted on a written refusal. She was given a printed form on which a checkmark was placed next to the statement “failed to provide a complete set of documents”. It was not specified which documents were missing.
11. On 15 January 2001 the applicant challenged the refusal before the Dorogomilovskiy District Court of Moscow. She submitted that there had been no legal basis for a restriction on her right to obtain residence registration in the flat, expressly provided to her for that purpose by its owner, and that the registration authorities had no discretion in granting residence registration once the appropriate documents had been produced, as had been the case.
12. On 12 February 2001 the Director of the passport department filed his observations on the applicant’s claim. He contended that the applicant did not have Russian citizenship and that she had originally come from Georgia. Georgian citizens were required to have an appropriate visa to enter Russia, which the applicant could not produce, and, in any event, the registration of foreign citizens was a matter for the Ministry of the Interior’s local visa departments.
13. On 13 February 2001 the Dorogomilovskiy District Court of Moscow ruled on the applicant’s claim. A representative of the flat owner stated before the court that the applicant had been living in the flat since 2000 and that the owner had no objections to her registration. The court dismissed the applicant’s claim, giving two reasons for its decision.
14. Firstly, referring to the provisions of the Civil and Housing Codes regulating the joining of family members and other persons to existing municipal-tenancy agreements and emphasising the absence of a family relationship between the applicant and the flat owner, the court ruled that the matter should be examined not as a challenge to the State official’s refusal to grant registration, but rather as a civil action for determination of the applicant’s right to move into the flat.
15. Secondly, the court held that the applicant had failed to prove her Russian citizenship or to confirm her intention of obtaining it and pointed out that “a treaty” between Russia and Georgia provided for visa-based exchanges.
16. The judgment concluded as follows:
“Given that the applicant failed to produce information confirming her right to move into the flat in question, information on [her] citizenship and the lawfulness of [her] entry into the Russian Federation, the Court accordingly dismisses her claim.”
17. On 5 March 2001 the Dorogomilovskiy District Court of Moscow confirmed certain amendments to the hearing record, as submitted by the applicant’s representative. In particular, the record was to reflect the applicant’s statements about the non-applicability of municipal-tenancy provisions to her situation, given that the flat had been in private ownership, and about the flat owner’s consent to her residence.
18. On 19 March 2001 the applicant’s representative filed a statement of appeal. He submitted, in particular, that the District Court had incorrectly referred to the applicant’s Georgian citizenship and to a visa requirement for her entry into the Russian Federation, since the applicant had never held Georgian citizenship and, in any event, the residence regulations applied uniformly to all persons lawfully residing within the Russian Federation, irrespective of their citizenship. He indicated that the District Court had failed to advance any justification for the restriction on the applicant’s right to choose her residence. He also contended that the District Court’s reliance on tenancy provisions had been invalid because the flat owner had had clear title to the flat and there could be no dispute as to the applicant’s right to move in, since she had the flat owner’s explicit consent.
19. On 2 August 2001 the Moscow City Court upheld the judgment. It reiterated the District Court’s findings that the applicant’s claim had to be dismissed because she had failed to prove her Russian citizenship or an intention to obtain it and because she had failed to provide any documents confirming her right to move into the flat in question. The City Court did not address the arguments advanced by the applicant’s representative in the grounds of appeal.
20. Article 19 provides for the equality of all before the law and the courts of law, and equality of rights and liberties.
21. Article 27 provides that everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence.
22. Article 62 § 3 provides that foreign citizens and stateless persons shall have the same rights and obligations in the Russian Federation as Russian citizens unless otherwise provided in a federal law or an international treaty to which the Russian Federation is a party.
23. At the material time the issues related to Russian citizenship were governed by the Citizenship of the Russian Federation Act (Law no. 1948-I of 28 November 1991, as amended on 6 February 1995), which provided that all citizens of the former USSR who were permanently resident in Russia on 6 February 1992 (the date of entry into force of the Act) automatically obtained Russian citizenship unless they expressed their wish to the contrary before 6 February 1993. The basis for establishing whether a person was permanently resident within Russia was the propiska stamp (internal residence registration) in his or her USSR passport. Section 18(g) of the law provided for a simplified procedure (“by way of registration”) for obtaining Russian citizenship for citizens of the former USSR who arrived in Russia after 6 February 1992 and expressed their wish to become Russian citizens before 31 December 2000.
24. Under the powers vested in him by law, on 10 April 1992 the President of the Russian Federation adopted the Regulations on the procedure for consideration of issues of citizenship of the Russian Federation (Decree no. 386 – “the 1992 Regulations”). Section II(5) stated that the notion of “a citizen of the former USSR” applied only to those individuals who did not obtain the citizenship of one of the newly independent States which had previously been members of the USSR. The same section stipulated that after 31 December 2000 all citizens of the former USSR who had not obtained Russian or other citizenship would be considered to be stateless persons.
25. Until August 2002 the status of foreign citizens and stateless persons in the Russian Federation was regulated by the USSR Law on the legal status of foreign citizens in the USSR (no. 5152-X of 24 June 1981, as amended on 15 August 1996 – “the 1981 USSR Law”). By virtue of section 32, its provisions were likewise applicable to stateless persons.
26. In implementation of the 1981 USSR Law, on 26 April 1991 the USSR Cabinet of Ministers adopted Resolution no. 212, whereby it approved the Rules on the stay of foreign citizens in the USSR (“the 1991 Rules”). Those rules also applied to stateless persons and described the procedures for entering and leaving Russia, obtaining documents for temporary residence and permanent residence, etc.
27. On 9 October 1992 nine member States of the Commonwealth of Independent States (CIS), including the Russian Federation, signed in Bishkek an Agreement on visa-free movement of citizens of member States of the Commonwealth of Independent States throughout their territory (“the Bishkek Agreement”). Georgia acceded to the Bishkek Agreement on 1 August 1995.
28. On 4 September 2000 the Russian Federation denounced the Bishkek Agreement as of 3 December 2000. In the absence of a bilateral agreement on visa-free movement between Russia and Georgia, Georgian citizens were required to apply for a Russian entry visa from 5 December 2000.
29. On 25 June 1993 Russia adopted a Law on the right of Russian citizens to liberty of movement and freedom to choose their place of temporary and permanent residence within the Russian Federation (Law no. 5242-I – “the 1993 Law”). Section 1 guaranteed the right of Russian citizens to liberty of movement and freedom to choose their place of residence, and extended the law’s application to non-Russian citizens lawfully residing in Russian territory. Sections 3 and 7 required a person to apply for residence registration at a new address within seven days of moving. Section 8 contained an exhaustive list of territories where this right could be restricted (such as military settlements, environmental disaster zones, etc.)
30. In order to implement the 1993 Law, on 17 July 1995 the Russian government approved the Regulations for registration of temporary and permanent residence of Russian citizens (no. 713). By Government Resolution no. 290 of 12 March 1997, the application of these Regulations was extended to former USSR citizens arriving from the Commonwealth of Independent States and the Baltic States. Section 9 of the Regulations imposed a general duty to seek residence registration at any address where a person intended to stay for longer than ten days. The person was required to file an application for registration within three days of the move and to submit an identity document, an application form and a document showing the legal basis for residence at the indicated address (such as a rent contract or the consent of the flat owner). Section 12 of the Regulations, as worded at the material time, provided that the registration could be refused if the applicant had not submitted written consent or had produced manifestly false documents; the list of grounds for refusal was exhaustive.
31. On 2 February 1998 the Constitutional Court of the Russian Federation struck down certain provisions of the Regulations as incompatible with the Russian Constitution. It ruled, in particular, that
“... the registration authorities are entitled only to certify the freely expressed will of a citizen in his or her choice of ... residence. For this reason, the registration system may not be permission-based and it shall not entail a restriction on the citizen’s constitutional right to choose his or her place of ... residence. Thus, the registration system in the sense which is compatible with the Russian Constitution is merely a means ... of counting people within the Russian Federation, ... is notice-based and reflects the fact of a citizen’s stay at a place of his or her temporary or permanent residence.”
The Constitutional Court emphasised that, upon presentation of an identity document and a document confirming the person’s right to reside at the chosen address, the registration authority should have no discretion and should register the person concerned at the address indicated. The requirement to submit any additional document might lead to “paralysis of a citizen’s rights”. On that ground the Constitutional Court ruled that the registration authorities were not entitled to verify the authenticity of the submitted documents or their compliance with Russian laws and, accordingly, any such grounds for refusal were unconstitutional.
32. On 9 July 1997 the Moscow authorities passed a Law on the conditions of residence in Moscow for foreign citizens who have the right to enter Russia without a visa (Law no. 33). The Law applied to foreign citizens from the CIS and to stateless persons. It required non-Russian citizens to apply for residence registration within three days of their arrival (if staying for longer than ten days). Section 10 of the Law provided that a non-Russian citizen residing in Moscow for more than three days without the appropriate residence registration was liable to a fine of up to 500 Russian roubles (RUR) (approximately 20 euros (EUR) in 2001) or, in the event of a repeated offence, up to RUR 2,000 (EUR 80). The same penalty could be imposed on a flat owner who permitted a non-Russian citizen to live in his or her premises without residence registration.
33. Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows:
“8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities:
...
xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member States concerned ‘to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders’;
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96996
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RISTESKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1966 and lives in Skopje.
5. On 27 November 1997 she complained to her employer about her treatment at work.
6. On 9 December 1997 the employer dismissed the applicant, considering her complaint as a request for resignation. The applicant's objection remained undecided.
7. On 26 February 1998 she claimed before the Skopje Court of First Instance (“the first-instance court”) annulment of the dismissal decision, her reinstatement and payment of unpaid salary.
8. On 17 February 1999 the court ordered expert examination of the applicant's mental state of health on 27 November 1997, the date when she had submitted her complaints to the employer. The applicant was ordered to pay the expert fees within fifteen days. On 12 June 2000 the first-instance court noted that the applicant had failed to pay the fees.
9. On 4 May 2001 the court ordered expert examination of the applicant's mental health again. The applicant paid the expert fees on 26 October 2001. The expert opinion was submitted on 15 November 2001.
10. During the trial proceedings, three hearings were adjourned due to the incorrect delivery of court summons to the applicant and her lawyer.
11. On 19 September 2002 the first-instance court dismissed (одбива) the applicant's claim as having been submitted out of the fifteen-day statutory time-limit. On 27 March 2003 the Skopje Court of Appeal quashed this decision since the applicant's claim should have been rejected (отфрла) instead.
12. On 15 October 2003 the first-instance court rejected the applicant's claim as out of time. On the same date the applicant was exempted of court fees (судска такса). On 17 March 2004 the Skopje Court of Appeal dismissed the applicant's appeal of 5 December 2003.
13. On 20 April 2004 the applicant submitted to the Supreme Court an appeal on points of law (ревизија) arguing that the fifteen-day time-limit had been of a non-binding (инструктивен) nature. In this connection, she referred to a decision of 28 December 1999 in which the Supreme Court allegedly had given such reasoning.
14. On 30 March 2005 the Supreme Court dismissed the applicant's appeal stating that the statutory time-limit had been of a preclusive nature. This decision was served on the applicant on 27 June 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1