ITEMID: 001-22147
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: HAZAR, TEKTAS, BEKIROGLU, PEKOL, BOZKUS, TEKTAS, ATMAN, ISIK, AKSUCU, DOSTER, DEMIRHAN and SAHIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They were living in the city of Lice at the time giving rise to these applications. They are represented before the Court by Mr Hasip Kaplan, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 October 1993, in the district of Lice, clashes occurred between security forces and PKK militants. The clashes started at around 9 a.m., just after the PKK militants had attacked the security forces. Thereafter all the policemen, the special teams and soldiers in Lice started to fire at random. The clashes lasted 36 hours. The security forces used heavy weapons, canons, tanks and 5 helicopters. As a result of the clashes 16 people died, 19 people were wounded and 424 shops and 640 houses were destroyed.
Shortly after the beginning of the clashes the soldiers ordered the inhabitants of Lice to go to their homes. All the roads in and out of Lice were sealed off during the incident for security reasons. A curfew was then imposed with immediate effect. The curfew lasted until 26 October 1993.
In the meantime, it was broadcast on radio and television that the Diyarbakır Provincial Gendarme Regiment Commander, General Bahtiyar Aydın, had been shot dead by the PKK and that 16 people had been killed, many people had been wounded and more than 400 shops and houses had been destroyed in the raid by the PKK.
After the incidents, the Lice Public Prosecutor opened an investigation into the deaths of 16 people and injuries to 35 others, as well as the destruction of property in the city. The security forces prepared an incident report and drew up a sketch map of the manner in which the clashes occurred.
The Public Prosecutor found that the events of 22 October 1993 had begun at around 9 a.m. when a group of PKK terrorists, who were hiding in the vineyards on the side of the Lice-Kulp road, opened fire on a police minibus belonging to the Lice Security Directorate. Then the PKK militants, who were positioned in various central areas of Lice, opened fire with longrange weapons on the Lice Security Directorate, the Gendarme Headquarters, the Infantry Regiment and public buildings. Brigadier General Bahtiyar Aydın was shot dead while he was in the Gendarme Headquarters’ garden. The clashes occurred shortly after the security forces’ response to the terrorists’ attack. The clashes were intense between 9 a.m. and 4 p.m. and ended at 7 p.m. The Public Prosecutor noted the names of the people killed or injured as well as the number of buildings destroyed during the clashes. He further noted that 20 people had been arrested after the clashes as a result of the investigation and that they had been transferred to the Chief Public Prosecutor’s Office at the Diyarbakır State Security Court.
On 24 October 1993 the Diyarbakır Governor, İbrahim Şahin, and the State of Emergency Regional Governor, Ünal Erkan, arrived in Lice. Ünal Erkan addressed the public gathering and said, “No one can oppose the State. We will crush those who do so... It is a pity for those who died.” İbrahim Şahin, the Diyarbakır Governor, made a public announcement that people would be compensated for the damage they had suffered.
The Government also considered the Lice incidents a national disaster and promised to compensate the loss sustained by the victims of Lice from the disaster fund earmarked in the annual budget.
On 11 November 1993 the Lice Public Prosecutor issued a decision of nonjurisdiction on the ground that the incidents fell within the jurisdiction of the Diyarbakır State Security Court. He sent the investigation file to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court in accordance with Article 11 of Law no. 2845.
In November and December 1993 the applicants all applied to the Lice Magistrates’ Court (sulh hukuk mahkemesi) for an assessment of the damage they suffered as a result of the clashes. The court appointed 8 experts to determine their damage. The experts submitted damage assessment reports to the court. They concluded that 214 shops and 401 houses had been destroyed. They also indicated in their report the nature and the amount of the damage suffered by each of the applicants.
The nature of the destroyed property is set out in the appendix. The applicants preferred not to indicate to the Court the amount of their damage, as assessed at the time, due to the high inflation rates in Turkey which have distorted the original evaluations.
The criminal proceedings concerning the killing of people and the destruction of property in Lice are still pending before the Chief Public Prosecutor’s office at the Diyarbakır State Security Court.
A description of the relevant domestic law may be found in the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996IV, §§ 28-43, the Menteş and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, §§ 36-51; the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-II, §§ 33-45; the Gündem v. Turkey judgment of 25 May 1998, Reports 1998III, §§ 32-45; the Bilgin v. Turkey judgment of 16 November 2000, to be published in Reports of Judgments and Decisions.


ITEMID: 001-60334
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF A.T. v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 9. The applicant complains about two sets of proceedings, in which he sought compensation for statements published in the weekly News, in articles relating to a spectacular series of letter bombs which had been sent to politicians and other persons in the public eye in Austria. In both sets of proceedings the applicant was represented by counsel.
10. On 3 May 1995 the applicant brought an action against the publisher of News. He complained that an article published on 16 February 1995 alleged that there was incriminating evidence against him, describing him as a right wing extremist being technically, organisationally and intellectually capable of organising the letter bomb terrorism. Moreover, his picture had been published. He requested compensation under the following sections of the Media Act (Mediengesetz): under section 6 for defamation, under section 7 for violation of his strictly private sphere, under section 7a for disclosure of his identity to the public, and under section 7b for breach of the presumption of innocence. He further requested supplementary measures under the Media Act, such as the publication of the judgment.
11. On 20 June 1995 the St. Pölten Regional Court (Landesgericht) discontinued the proceedings on the ground that the applicant had no right of action and dismissed his claim accordingly. The court did not hold a hearing prior to this decision.
The court noted that the impugned article mentioned the applicant by his first name and the initial of his family name without giving further information relating to his person. The following page showed his and a second person’s picture, on which their faces had been obliterated. The image was subtitled “A. [first name in full] T. and Adolf S. hoarded Peter Binders’ secret documents ...”. The court observed that only a person whose identity had been disclosed to the public could invoke the Media Act. However, the applicant had not been mentioned by his full name. As to the picture, which showed two persons, it was impossible for the reader to identify which one was the applicant, as their faces had been obliterated. Thus, there was no disclosure of the applicant’s identity and his request had to be rejected in accordance with section 8a § 2 of the Media Act, taken together with sections 486 § 3 and 485 § 1 (7) of the Code of Criminal Procedure (Strafprozessordnung).
12. On 25 July 1995 the applicant filed an appeal. He submitted that the court had wrongly dismissed his compensation claims. In particular, as to the question whether his identity had been disclosed to the public, it had failed to take the article in its entirety into account. He maintained that he was entitled to compensation and requested the court to quash the Regional Court’s decision and to remit the case to it for the continuation of the proceedings.
13. On 8 January 1996 the Vienna Court of Appeal (Oberlandesgericht), sitting in private, dismissed the applicant’s appeal.
The court found that the Regional Court’s reasoning only had force as regards the compensation claim based on section 7a of the Media Act, as this provision dealt with disclosure of a person’s identity to the public, whereas the right of action under the other provisions relied on by the applicant depended on different conditions. The Court of Appeal went on to examine whether these conditions were met. As to section 6 of the Media Act, it found that the applicant had not denied that criminal proceedings on suspicion of intentionally causing danger by explosives were pending against him. Given this uncontested factual basis, the description of the suspicion against the applicant in specific terms did not constitute defamation. A right of action under section 7 of the Media Act was excluded in any case, as this provision protected only the strictly personal sphere. Section 7b provided for a compensation claim if someone was depicted as the perpetrator of an offence and not merely as a suspect. However, the article did not claim that the applicant had committed the letter bomb attacks; it only described him as being a suspect while drawing the reader’s attention to the criminal proceedings which were pending against him. In conclusion, the Court of Appeal found that the Regional Court had, albeit with insufficient reasoning, rightly discontinued the proceedings. The decision was served on 25 January 1996.
14. On 26 July 1995 the applicant brought another action against the publisher of News. He complained that in an article published on 22 June 1995 he had been described as a neo-nazi, and as being responsible for the letter bomb terrorism. His picture had also been published. He claimed that the article aimed at showing that he was the perpetrator of the letter bomb attacks. Again, he requested compensation under sections 6, 7, 7a and 7b of the Media Act, as well as supplementary measures such as the publication of the judgment.
15. On 21 August 1995 the St. Pölten Regional Court discontinued the proceedings on the ground that the applicant had no right of action and dismissed his claim accordingly. The court did not hold a hearing prior to this decision.
It noted that the impugned article mainly dealt with defects in the police investigation of the letter bomb attacks. The applicant was only mentioned once by his first name and the initial of his family name. The accompanying text stated that the right-wing extremists from Carinthia, A. [first name in full] T. and Ewald F. had either not been put under surveillance at all or only occasionally. The following page showed the applicant’s picture with a black bar over the eyes. It was subtitled “Under surveillance. Neo-nazi A. [first name in full] T. belongs to the circle of Ewald F”.
The court found that the Media Act protected a person’s name and picture, as well as other information which was likely to disclose the person’s identity to the public. In order to disclose the applicant’s identity, at least the mention of his full name, or other precise information concerning his person, would have been required. As the applicant’s identity had not been disclosed, the relevant provisions of the Media Act did not apply. Thus, the applicant’s request had to be rejected in accordance with section 8a § 2 of the Media Act, taken together with sections 486 § 3 and 485 § 1 (7) of the Code of Criminal Procedure.
16. On 4 September 1995 the applicant lodged an appeal. He submitted that the court had wrongly dismissed his compensation claim. He requested the Vienna Court of Appeal to quash the Regional Court’s decision and to remit the case to it for the continuation of the proceedings. Alternatively, he requested the Court of Appeal to decide on his claims.
17. On 19 October 1995 the Vienna Court of Appeal, sitting in private, dismissed the applicant’s appeal.
The court found that the Regional Court’s reasoning only had force as regards the compensation claim based on section 7a of the Media Act. However, the decision to discontinue the proceedings was nevertheless correct for the following reasons: As regards his compensation claim for defamation based on section 6 of the Media Act, the court, having regard to the contents of the article as a whole, found that the applicant was only described as a suspect on account of his membership of a group of right wing extremists. It was a fact that this group of persons was under suspicion and the applicant had not contested that he belonged to that group. Thus, the reference to him as a suspect, being based on uncontested facts, did not constitute defamation. Further, the description of a suspicion of a criminal offence could not be considered as a violation of the applicant’s strictly personal sphere under section 7 of the Media Act, nor did it violate the presumption of innocence giving rise to a claim under section 7b of the said Act. The decision was served on 28 November 1995.
18. The Media Act contains a number of provisions under which a person who has been affected by a publication in a medium may claim compensation. As far as they are relevant in the context of the present case, they read as follows:
“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ....”
“(1) Where a person’s strictly private life is discussed or portrayed in a medium in such a way as to expose him publicly the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...”
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. ....”
“(1) Where a person who is suspected of having committed a punishable offence but has not been finally convicted is portrayed in a medium as guilty, or as the offender and not merely a suspect, the victim shall have a claim in damages against the owner of the medium (publisher) for the injury suffered. ....”
19. According to the Media Act, compensation claims under sections 6, 7, 7a and 7b may either be raised in criminal proceedings against the publisher or, failing such criminal proceedings, in separate proceedings.
20. Section 8a § 1 of the Media Act states that, in separate compensation proceedings, the rules for criminal proceedings by way of a private prosecution apply, unless the Media Act provides otherwise.
21. Section 8a § 2 of the Media Act provides inter alia that a single judge has to conduct the hearing and to give judgment. The public nature of a hearing may be excluded at the claimant’s request when issues relating to his strictly personal sphere are discussed. The single judge also takes the decisions envisaged by sections 485 and 486 of the Code of Criminal Procedure (Strafprozessordnung), which are otherwise taken by the Review Chamber (Ratskammer). An appeal lies to the superior court against a decision to discontinue the proceedings.
22. According to section 486 § 3 in conjunction with section 485 § 1 (7) of the Code of Criminal Procedure, the Review Chamber will discontinue the proceedings if it considers that the request for prosecution has not been brought by a person entitled to do so.
23. The Media Act does not contain any explicit provision on whether or not the single judge has to hold a hearing when the proceedings are to be discontinued. The courts’ practice is not to hold a hearing in such cases. The Review Chamber, in whose stead the single judge decides under the Media Act (see above), sits in private pursuant to section 113 § 3 of the Code of Criminal Procedure.
24. Again the superior court, when dealing with appeals against decisions of the Review Chamber, which under the Media Act are taken by the single judge, takes its decisions sitting in private pursuant to section 114 of the Code of Criminal Procedure.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79545
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BANKS AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants are listed as:
1. Stephen John Banks, a British citizen born in 1965 and resident in Ware;
2. John Chalmers, a British citizen born in 1966 and serving a sentence of imprisonment in HM Prison Parkhurst;
3. Peter Croll, a British citizen born in 1966, resident in Westcliffe-on-Sea;
4. Robert Sloane Harper, born in 1966 and resident in Beith;
5. Mariusz Maczka, a Polish citizen born in 1974 and serving a sentence in HM Prison Long Lartin;
6. Leonard O’Shea, a British citizen born in 1963 and serving a prison sentence in HM Prison Albany;
7. Mohammed Soliman, a British citizen born in 1962 and resident in London;
8. Calleb Ngar, a Kenyan citizen, born in 1972 and resident in Kenya;
9. James Reilly, an Irish citizen, born in 1966, resident in Drogheda, Ireland;
10. Brendan Boyle, an Irish citizen, born in 1969, and resident in Bromley. He is brother of John Boyle who died in prison on 4 December 1994.
The application was presented before the Court by Mr D. M Machover, a solicitor practising in London.
They relate to assaults and ill-treatment inflicted on prisoners in HM Prison Wormwood Scrubs during the 1990s.
1. On 15 March 1998, the first applicant was taken to the segregation cell, where he was visited by three prison officers. He was removed from the cell and punched and kicked for several minutes before being returned to his cell. The officers returned a short while later. One officer made the threat of breaking his neck. He was kicked and punched again. On being returned to his cell, he was kicked with such force that his forehead, nose and mouth struck the cell wall. On being seen by the prison doctor, it was recorded that the applicant had lacerations to the forehead and nose, grazing on knee, thigh, right knuckle and wrist and tenderness to his right shoulder and the small of his back.
On 14 September 2001, the three officers were convicted of assault and sentenced variously to three and a half, four and four and a half years’ imprisonment. Their appeals were rejected on 19 March 2002.
The applicant brought civil claims against the Home Office. These were not defended in light of the criminal conviction.
On 23 January 2003, a consent order issued by which the applicant accepted GBP 42,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
2. The second applicant alleged that he had suffered a series of assaults while in the segregation unit from 16 August to late September 1995. This included a welcoming committee of six officers conducting a squat search during which he was kicked in the testicles. On another occasion on or about 15 to 16 September 1995, he was dragged out of his bed by officers who threatened that they would hang him and get away with it. The applicant was so terrified that he urinated. The officers made a noose and hung it from the cell bars. He was then gagged and lifted up, with the noose round his neck. The officers desisted when another officer intervened.
The applicant brought civil proceedings which the Home Office did not contest.
On 7 January 2004, a consent order issued by which the applicant accepted GBP 100,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
No officers were charged with criminal offences.
3. The third applicant alleged that he was assaulted on two occasions in November 1997. On the second occasion, he was kicked and kneed by prison officers until he lost consciousness. Injuries included a cut over his left eyebrow that required stitching, bruising to his face, a ruptured ear drum and numbness to his left thumb.
Following a trial in the Crown Court, in March 2001, four officers were acquitted of assault charges in that respect.
The applicant brought civil proceedings which the Home Office did not contest.
On 13 May 2003, a consent order issued by which the applicant accepted GBP 28,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
4. The fourth applicant alleged that, while detained pending trial, he was assaulted by prison officers in November 1992, leaving him with visible cuts, abrasions and bruising all over his body. At the start of his trial, his counsel was concerned at the visible injuries and his trial was adjourned for medical examination and X-rays.
The applicant brought civil proceedings which the Home Office did not contest.
On 18 March 2003, a consent order issued by which the applicant accepted GBP 22,000 in full and final settlement of all his claims.
5. The fifth applicant alleged that on 4 June 1996 he was assaulted by prison officers, receiving bruising and injury to his little finger on his left hand the effects of which lasted for some eighteen months.
The applicant brought civil proceedings which the Home Office did not contest.
On 16 July 2003, a consent order issued by which the applicant accepted GBP 41,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
6. The sixth applicant alleged two assaults on 4 February 1998, in which he was kicked, punched, abused and threatened. When he complained to a counsellor, officers made threats implying that he would be hanged and officers later came to his cell with a knotted length of sheet which they wedged in the window. An officer told them that they should wait until the applicant’s bruises had gone down and they left.
Criminal charges brought against one or more prison officers were discontinued on the first day of trial.
The applicant brought civil proceedings which the Home Office did not contest.
On 16 July 2003, a consent order issued by which the applicant accepted GBP 32,500 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
7. The seventh applicant alleged a series of assaults in early February 1994, including punching, kicking, abuse and an incident in which an officer indecently assaulted him. The applicant tried to commit suicide as he thought that the officers were going to kill him; he was removed to the hospital wing.
No civil claim was pursued due to evidential difficulties.
8. The eighth applicant alleged a series of assaults over a year from October 1996 to October 1997. This included incidents of punching, kicking, threats and being locked in the shower room where he was sprayed with cold water from a high-pressure hose-pipe. Besides suffering physical injuries, the applicant also made several attempts to harm himself as a result of the assaults.
Criminal charges brought against prison officers were discontinued before going to trial.
The applicant brought civil proceedings which the Home Office did not contest.
On 19 December 2003, a consent order issued by which the applicant accepted GBP 55,000 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
9. The ninth applicant alleged two assaults on 7 September 1997, which left him with cuts and bruising on his face and considerable grazing to his left leg. He was told that he should plead guilty to a disciplinary charge of assaulting a prison officer or he would be hanged.
On 9 September 2004, a consent order issued by which the applicant accepted GBP 14,425 in full and final settlement of his claims, including his claim of systemic negligence and malfeasance.
No officers were charged with criminal offences.
10. The tenth applicant’s brother, John Boyle, was transferred to Wormwood Scrubs to use up “accumulated visits” with friends and relatives. On 3 December 1994, several visitors were told that they had to undergo a strip search. The tenth applicant refused to undergo such a search considering that it was motivated by anti-Irish prejudice. When John Boyle learned what had happened, he protested to prison staff in the visitors’ area, whereupon he was restrained and taken to the Segregation Unit for allegedly assaulting prison officers.
At 5 p.m., on 4 December 1994, he was allegedly found hanging from a piece of torn sheet in his cell by officers Goodall and McIntyre. Resuscitation attempts apparently revived a heart beat and pulse. He was taken to Hammersmith Hospital where, on 7 December 1994, ventilation was discontinued due to imminent brain stem death and shortly afterwards he was pronounced dead.
At an inquest held in May 1995, a jury returned an “open” verdict.
On 22 May 1999, the applicant’s solicitors requested the police to open a murder inquiry. By letter of 21 May 1999, the Metropolitan Police replied that while there was no evidence known to them to raise a true suspicion that John Boyle had been murdered, a review of the initial police investigation would be carried out. By letter dated 20 July 1999, the Detective Superintendent reviewing the case stated that there was still no evidence that the death was suspicious but that as he was not satisfied that the initial investigation met the required standard he had tasked further work to be done e.g. further witness statements and consultation of a medical expert. A further letter dated 19 December 1999 stated that the persons interviewed had not witnessed any violence, or heard any shouts nor had they any knowledge of alleged hangings by prison officers and that the expert evidence to date made no reference to suspicious death or foul play. By letter dated 3 May 2001, which commented on the solicitors’ delay in putting forward their new medical opinion, the Detective Superintendent noted that this opinion added nothing new and indeed confirmed previous reports.
By letter dated 11 February 2004, the applicant’s solicitors drew the attention of the police to the civil judgments obtained in other cases in which there was evidence of death threats and mock hangings. They therefore were calling for a public inquiry into the events at the prison and the systematic abuse of inmates and requested that the case be reviewed in light of the civil cases and the convictions of prison officers in 2001. On 31 January 2005, the Metropolitan Police agreed to review the matter again. The outcome of this review is expected shortly but no further steps are anticipated as likely to result.
On 16 March 1998, the applicants’ solicitors presented a dossier to the Chief Inspector of Prisons detailing ill-treatment of six prisoners in Wormwood Scrubs and one prisoner at Pentonville and, inter alia, expressing their view that a statutory inquiry into the allegations be instituted. Their report led to criminal investigations and a series of inquiries.
The applicants’ solicitors came to represent almost a hundred other prisoners who made allegations of assaults by prison officers during this period. Nearly sixty civil claims were later brought against the Home Office by inmates at Wormwood Scrubs.
An internal prison inquiry was launched, headed by Peter Atherton, the head of the Audit Standards Unit of the Prison Service. His inquiry team consisted of 11 persons, eight of whom were permanent members of the Prison Service but independent of the operational line. None had ever served at Wormwood Scrubs.
On 31 March 1998, the first part of the interim report issued. It dealt with the seven prisoners named by the solicitors in their dossier, plus the first applicant who had been added later. It recommended, inter alia, that allegations by five prisoners (including the first and eighth applicants) be referred to the police for investigation of serious criminal offences; that identified staff involved in those incidents be suspended pending the outcome of those proceedings and that any other staff identified during the investigation as being involved be suspended; that in view of the absence of any evidence that there had been internal prison investigations into specific allegations and due to the chaotic state of other investigations as well as concerns about the effectiveness of senior management supervision of the care and control unit, the Director of the Main Prison be suspended from duty while a disciplinary investigation took place. The report also mentioned that the preliminary investigation revealed that thirty other allegations had been made about ill-treatment since 1 January 1997, fourteen of those occurring in the segregation unit and that there could be no assurance that these had been properly followed up at the time. It recommended that confidence-building steps be taken immediately, including the installation of CCTV in the segregation unit and all routes to the unit, particularly those used when prisoners were subject to the use of force; daily visits to the segregation unit by a governor grade; that the unit operate on the basis of open access to other departments and the Board of Visitors; and that accurate records be kept in the segregation unit
On 3 April 1998 the second part of the interim report issued. It referred ten more allegations concerning ill-treatment in the segregation unit, and ten allegations concerning other parts of the prison, to the police for investigation; and it recommended that the Director General review the case for suspension against one more prison officer; and that the prisoner grievance procedures receive an immediate and thorough overhaul. In total, five of the original cases in the solicitors’ dossier were handed over to the police for investigation and two of the cases transmitted to the police for their information. The report finally identified in general terms other aspects relating to prison administration, management and training that could be pursued further.
The Metropolitan Police investigated a number of individual claims of physical violence by prison officers against inmates. They carried out two investigations called Mevagissey I and Mevagissey II. It appears that in 1999 charges were lodged against some twenty seven prison officers in connection with thirteen separate complainants, which resulted in six convictions in July 2000 and August 2001. In another eleven criminal cases, six went to full trial and resulted in acquittals for fifteen officers, in two the judge directed an acquittal of four officers and in three the prosecution offered no evidence, leading to the formal acquittal of seven officers.
On 13 September 2001, the applicants’ solicitors presented a further dossier to the Home Secretary, listing the allegations of ill-treatment by over fifty inmates, including the applicants and John Boyle, and arguing for the necessity of holding a public inquiry.
In April 2002, the Chief Inspector of Prisons issued a report, following an unannounced inspection of Wormwood Scrubs.
“As this report shows, the failure to establish, publicly and independently, what took place at Scrubs during the 1990s has severely hampered attempts to change the culture and regime there, or to establish whether there were underlying systemic problems which may need addressing in this, and other, prisons. For that reason, many of those involved in Scrubs, from the Board of Visitors to the POA, have supported the call for a public inquiry. I would like to stress that this inspection, thorough though it is, is no substitute for that: it is a snapshot of the prison as we found it in December 2001. This Inspectorate does not of itself have the powers or the mandate to investigate past events... Prisons are closed environments and it is vital that an independent and external spotlight is directed on them when something appears to have gone seriously wrong.”
The applicants’ solicitor renewed their request for an inquiry by letter of 28 April 2003 to the Home Office, pointing out that there was no risk of prejudicing the criminal investigations, which had apparently come to an end. They threatened judicial review proceedings to require him to hold a public inquiry.
On 30 May 2003, the Home Office replied that the Crown Prosecution Service was still considering possible prosecutions and that it would not be right to hold an inquiry. By letter dated 9 December 2003, it was stated that the Home Secretary would review the matter whenever the civil proceedings had finished, it appearing that there would now be no further criminal proceedings.
Following conclusion of the civil proceedings in which all claims were settled, the solicitors wrote to the Home Office on 6 September 2004 reiterating the need for a public inquiry.
In proceedings in the House of Commons on 15 November 2004, in answer to a question about Wormwood Scrubs and a possible public inquiry, the Home Office reply referred to the visit by the Chief Inspector of Prisons in November 2003 in respect of which it had been found that “it was a greatly improved prison, gradually implementing and consolidating fundamental changes”. Most noticeable of all was the “change in attitude and approach of Prison Officers”.
By letter of 14 December 2004, the Home Secretary stated that he was not convinced that a public inquiry would be in the public interest or serve any useful purpose in improving the effective operation of the Prison Service, taking into account the disciplinary actions taken, the criminal investigations which had led to prosecutions and convictions, the civil claims which had been settled and the wider actions taken in the Prison Service. While the incidents had been wholly unacceptable, he concluded that those incidents and the systems which allowed them to occur had now been properly and fully investigated, lessons had been learned and effective action taken to address those failings. In respect of the death of John Boyle, he noted that the case had been subject of a criminal investigation, an inquest and a further review by the Metropolitan police. Taking into account also the lapse of time, he considered that it would not be in the public interest to hold a public inquiry into that case.
On 20 December 2004, the Treasury Solicitor provided the applicants’ solicitors with a copy of the full Atherton Report, noting that a redacted version had been available during the civil proceedings. He declined to make available any copies of other reports. The applicants state that three other internal inquiries (referred to as the Hind, Clark and Quinn inquiries) had been conducted.


ITEMID: 001-85732
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MEGADAT.COM SRL v. MOLDOVA
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 6. The applicant company, Megadat.com SRL, is a company incorporated in the Republic of Moldova.
7. At the time of the events the applicant company was the largest Internet service provider in Moldova. According to the applicant company, it held approximately 70% of the market of Internet services. While agreeing that the applicant company was the largest Internet service provider in the country, the Government disputed the ratio of its market share without, however, presenting any alternative figures.
8. The applicant company had two licences issued by the National Regulatory Agency for Telecommunications and Informatics (“ANRTI”) for providing Internet and fixed telephony services. The licences were valid until 18 April 2007 and 16 May 2007 respectively and the address 55 Armenească Street was indicated in them as the applicant company’s official address.
9. The applicant company had three offices in Chişinău. On 11 November 2002 its headquarters was moved from its Armenească Street office to its Ştefan cel Mare Street office. The change of address of the headquarters was registered with the State Registration Chamber and the Tax Authorities were informed. However, the applicant company failed to request ANRTI to modify the address of its headquarters in the text of its licences.
10. On 20 May 2003 the applicant company requested a third licence from ANRTI indicating in its request the new address of its headquarters. ANRTI issued the new licence citing the old address in it, without giving any reasons for not citing the new address.
11. On 17 September 2003 ANRTI held a meeting. According to the minutes of the meeting, it found that ninety-one companies in the field of telecommunications, including the applicant company, had failed to pay an annual licence fee and/or to present information about changes of address within the prescribed time-limits. ANRTI decided to invite those companies to eliminate the irregularities within ten days and to warn them that their licences might be suspended in case of non-compliance.
12. On unspecified dates the ninety-one companies, including the applicant company, were sent letters asking them to comply within ten days of the date of receipt of the letter. They were also warned that their licences might be suspended in case of non-compliance in accordance with section 3.4 of the ANRTI Regulations. The applicant company was sent such a letter on 24 September 2003.
13. Following ANRTI’s letters, only thirty-two companies, including the applicant company, complied with the request.
14. On 29 and 30 September 2003 the applicant company lodged documents with ANRTI indicating its new address, together with a request to modify its licences accordingly, and paid the licence fee.
15. On Friday 3 October 2003 ANRTI informed the applicant company that it had some questions concerning the documents submitted by the applicant company. In particular, it had a question concerning the lease of the applicant company’s new headquarters and about the name of the applicant company. ANRTI informed the applicant company that the processing of its request concerning the amendment of its licences would be suspended until it had submitted the requested information.
16. On Monday 6 October 2003 ANRTI held a meeting at which it adopted a decision concerning the applicant company. In particular, it reiterated the content of section 15 of the Law on Licensing and of section 3.5.7 of the ANRTI Regulations, according to which licences which had not been modified within ten days pursuant to section 3.5.2 of the ANRTI Regulations should be declared invalid. ANRTI found that those provisions were applicable to the applicant company’s case, and that its licences were therefore not valid.
17. On the same date, ANRTI wrote to the Prosecutor General’s Office, the Tax Authorities, the Centre for Fighting Economic Crime and Corruption (“the CFECC”) and the Ministry of the Interior stating that the applicant company had modified its address on 11 November 2002 but had failed to request ANRTI to make the corresponding change in its licences. In such conditions, the applicant company had traded for eleven months with an invalid licence. ANRTI requested the authorities to verify whether the applicant company should be sanctioned in accordance with the law.
18. On 9 October 2003 ANRTI amended the Regulations concerning the issuance of licences in order to provide that an entity whose licence was withdrawn could reapply for a new licence only after six months.
19. On 21 October 2003 ANRTI held a meeting at which it found that fifty-nine of the ninety-one companies which it had warned, in accordance with its decision of 17 September 2003, had failed to comply with the warning. It decided to suspend their licences for three months and to warn them that in case of non-compliance during the period of suspension, their licences would be withdrawn. It appears from the documents submitted by the parties that the applicant company was the only one to have its licence invalidated.
20. On 24 October 2003 the applicant company brought an action against ANRTI arguing, inter alia, that the measure applied to it was illegal and disproportionate because the applicant company had always had three different offices in Chişinău of which ANRTI had always been aware. The change of address had only occurred because the applicant company’s headquarters had been transferred from one of those offices to another. The Tax Authorities had been informed promptly about that change and thus the change of address had not led to a failure to pay taxes or to a drop in the quality of services provided by the applicant company. Moreover, ANRTI’s decision of 6 October 2003 had been adopted in breach of procedure, because the applicant company had not been invited to the meeting and ANRTI had disregarded its own instructions given to the applicant company on 3 October 2003.
21. On 25 November 2003 the Court of Appeal ordered a stay of the execution of ANRTI’s decision of 6 October 2003. It also set 16 December 2003 as the date of the first hearing in the case. Later, at the request of ANRTI, that date was changed to 2 December 2003.
22. On 1 December 2003 the representative of the applicant company lodged a request for adjournment of the hearing of 2 December on the ground that he was involved in a pre-arranged hearing at another court on the same date and at the same time.
23. On 2 December 2003 the Court of Appeal held a hearing in the absence of the representative of the applicant company and dismissed the latter’s action. The court considered, inter alia, that since the applicant company had failed to inform ANRTI about the change of address of its headquarters, the provisions of section 3.5.7 of the ANRTI Regulations were applicable.
24. The applicant company appealed against the decision arguing, inter alia, that it had not been given a chance to participate in the hearing before the first-instance court. It submitted that, according to the Code of Civil Procedure, the court had the right to strike the case out of the list of cases if it considered that the applicant had failed to appear without a plausible justification, but not to examine the case in its absence. It also submitted that, by declaring the licences invalid, ANRTI had breached its own decision of 17 September 2003. It was ANRTI’s usual practice to request information concerning changes of address and to sanction companies which did not comply by suspending their licences. The applicant company drew attention to two other decisions of that kind dated 12 June 2003 and 17 July 2003. In this case, however, the applicant company had fully complied with ANRTI’s decision of 17 September 2003 by submitting information about the new address within the prescribed time-limit. Notwithstanding, ANRTI had asked for supplementary information on Friday 3 October 2003 and, without waiting for it to be provided by the applicant company, had decided to declare the licences invalid on Monday 6 October 2003.
The applicant company also argued that ANRTI’s decision of 6 October 2003 had been adopted in serious breach of procedure because the applicant company had not been informed at least three days in advance about the meeting of 6 October 2003 and had not been invited to attend.
Lastly, the applicant company argued that ANRTI’s decision to declare its licences invalid was discriminatory since the other ninety companies listed in ANRTI’s decision of 17 September 2003 had not been subjected to such a severe measure.
25. On 3 March 2004 the Supreme Court of Justice dismissed the applicant company’s appeal and found, inter alia, that it had been summoned to the hearing of 2 December 2003 and that its request for adjournment could not create an obligation on the part of the Court of Appeal to adjourn the hearing. Moreover, the decision of 6 October 2003 was legal since the applicant company admitted to having changed its address, and according to section 3.5.7 of the ANRTI Regulations a failure to request a modification of an address in a licence led to its invalidity. The Supreme Court did not refer to the applicant company’s submissions about its discriminatory treatment, ANRTI’s usual practice of requesting information about changes of address and ANRTI’s breaching of its own decision of 17 September 2003.
26. One of the members of the panel of the Supreme Court, Judge D. Visterniceanu, disagreed with the opinion of the majority and wrote a dissenting opinion. He submitted, inter alia, that the first-instance court had failed to address all the submissions made by the applicant company and had illegally examined the case in its absence. Moreover, only one provision of the ANRTI Regulations had been applied, whereas it was necessary to examine the case in a broader light and to apply all the relevant legislation. Finally, ANRTI’s decision of 6 October 2003 contravened its decision of 17 September 2003. Judge Visterniceanu considered that the Supreme Court should have quashed the judgment of the first-instance court and remitted the case for a fresh re-examination.
27. In the meantime, the applicant company transferred all of its contracts with clients to a company which was part of the same group, Megadat.com International, which had valid licences. However, the State-owned monopoly in telecommunications, Moldtelecom, refused to sign contracts with the latter company and made it impossible for it to continue operating.
28. On 16 March 2004 ANRTI and Moldtelecom informed the applicant company’s clients that on 17 March their Internet connection would be cut off and offered them Internet services from Moldtelecom without any connection charge.
29. On 17 March 2004 Moldtelecom carried out the disconnection of the applicant company and of Megadat.com International from the Internet and all of their equipment on the Moldtelecom premises was disconnected from the power supply.
30. In July 2004 the licences of Megadat.com International were withdrawn by ANRTI.
31. As a result of the above, the applicant company and Megadat.com International were forced to close down the business and sell all of their assets. One week later, the applicant company’s chairman, Mr Eduard Muşuc, was arrested for peacefully demonstrating against his company’s closure.
32. Following ANRTI’s letter of 6 October 2003 (see paragraph 17 above), the Tax Authorities imposed a fine on the applicant company for having operated for eleven months without a valid licence and the CFECC initiated an investigation as a result of which all the accounting documents of the applicant company were seized.
33. On 18 March 2004 the embassies of France, Germany, Hungary, Poland, Romania, the United Kingdom and the United States of America, as well as the Council of Europe, the International Monetary Fund and World Bank missions in Moldova, issued a joint declaration expressing concern over the events surrounding the closure of the applicant company. The declaration stated, inter alia, the following:
“Alleged contraventions of registration procedures do not appear to justify a decision to put a stop to the functioning of a commercial company. ... We urge Moldtelecom and the relevant authorities to reconsider this question. This seems all the more important in view of the commitment of the public authorities of Moldova to European norms and values.”
34. Section 3.4 of the ANRTI Regulations provides that in the event of non-compliance by a licence beneficiary with the conditions set out in the licence, the licence can be suspended for a period of three months. When ANRTI finds such non-compliance, it warns the licence beneficiary and gives it a deadline for remedying the problem. If the problem is not remedied within that period, ANRTI may suspend the licence for a period of three months.
35. On 12 June 2003 ANRTI warned several companies about their failure to pay licence fees and/or to inform it about their changes of address. The companies were given ten days to remedy the breaches. Since some of them did not comply, on 17 July 2003, ANRTI decided to suspend their licences for three months.
36. The relevant provisions of the ANRTI Regulations concerning modification of licences at the time of the events were similar to the provisions of section 15 of the Law on Licensing and read as follows:
“3.5.1 A licence should be modified when the name of the beneficiary company or other information contained in the licence has changed;
3.5.2 When reasons for modifying a licence become apparent, the beneficiary shall apply to ANRTI for its modification within ten days ...
3.5.7 A licence which has not been modified within the prescribed time-limit is not valid.”
37. On 9 October 2003 the following provision was added to the Regulations:
“3.8.6 Former beneficiaries, whose licences were withdrawn ... can reapply for new licences only after a period of six months counted from the day of withdrawal.”
38. On 24 September 2004 section 3.5.7 of the Regulations was amended as follows:
“3.5.7 In the event that a licence was not modified within the prescribed time-limit, the Commission has the right to apply administrative sanctions or to withdraw the licence partially or totally.”


ITEMID: 001-106192
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŽIVIĆ v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1975. He resides in Kosovska Mitrovica in Kosovo, where he is employed as a police officer with the Ministry of Internal Affairs of the Republic of Serbia (Ministarstvo unutrašnjih poslova Republike Srbije, hereinafter “the Ministry”).
6. The facts, as submitted by the parties, may be summarised as follows.
7. On 24 January 2000 and 17 July 2003 respectively, the Serbian Government adopted two decisions whereby, inter alia, all of its employees who resided and worked in Kosovo were to be paid double salaries.
8. On 31 January 2000 the Ministry issued a decision stating that the police officers in question were entitled to have their salaries increased by between 2.5% and 4.5%, depending on the circumstances.
9. In reality, the applicant only received the increase approved by the Ministry, amounting to significantly less than the doubling of his salary envisaged by the Government.
10. On 29 August 2006, therefore, the applicant filed a civil claim against the Ministry with the First Municipal Court (Prvi opštinski sud) in Belgrade, seeking payment of the difference between the salary increase received and that granted by the Government. The applicant further requested the payment of unspecified amounts on account of the related pension and disability insurance contributions.
11. On 23 July 2007 the First Municipal Court ruled in favour of the applicant and ordered his employer to pay:
i. 145,821.60 Serbian dinars (“RSD”) (approximately 1,760 Euros (“EUR”) at the relevant time) in respect of the difference between the salary received from 1 July 2003 to August 2006 and that granted by the Government, plus statutory interest;
ii. the extra pension and disability insurance contributions for the above period in respect of this additional salary to the relevant State fund; and
iii. RSD 39,532 (approximately EUR 477) for his legal costs.
12. On 19 December 2007 the District Court (Okružni sud) in Belgrade reversed that judgment and rejected the applicant’s claim. In its reasoning the District Court held, inter alia, that the applicable domestic regulation was contained in the decision of the Ministry adopted on 31 January 2000. This judgment was served on the applicant on 29 January 2008.
13. Many of the applicant’s colleagues (hereinafter “the plaintiffs”) had lodged separate claims with the District Court concerning the same issue, some of which were successful while others were unsuccessful: in seventy-three other judgments rendered between 25 January 2006 and 1 October 2008, the same District Court ruled in favour of the plaintiffs, notwithstanding the fact that their claims were based on the same facts as those in the applicant’s case and concerned identical legal issues. In its reasoning in these other cases, the District Court held, inter alia, that the plaintiffs’ salaries had to be paid in accordance with the Serbian Government’s decisions of 24 January 2000 and/or 17 July 2003.
14. Of the seventy-three judgments mentioned above, in fifty cases the respondent lodged appeals on points of law (revizije) with the Supreme Court (Vrhovni sud Srbije, see paragraphs 21 and 24 below). In the remaining twenty-three cases, however, the respondent lodged no such appeal, apparently in the light of the statutory threshold (see paragraph 22 below).
15. The Government provided examples of relevant case-law adopted by the Supreme Court, in particular six separate judgments, of which one had been issued on 3 July 2008 and the remaining five between 25 December 2008 and 1 October 2009. In each case, deciding upon appeals on points of law, the Supreme Court had ruled against the plaintiffs, albeit with somewhat different reasoning compared with that employed by the District Court. In particular, the Supreme Court had held, inter alia, that the Government’s decision of 17 July 2003 was not directly applicable.
16. In the meantime, on 23 September 2008, the Civil Division (Građansko odeljenje) of the Supreme Court held a meeting which was meant to resolve the issue of how to rule in all cases like the applicant’s (see paragraph 26 below). In the minutes of this meeting, it was noted, inter alia, that in two cases registered in 2008 where appeals on points of law had been considered, the Supreme Court had in fact confirmed the lower courts’ rulings in favour of the plaintiffs (Rev II 429/08 and Rev 623/08). The meeting, however, was ultimately adjourned pending the outcome of a case which had been brought before the Constitutional Court (Ustavni sud Srbije) concerning the abstract review of the constitutionality of the Government’s decision adopted on 17 July 2003. On 16 April 2010 the Constitutional Court held that the impugned decision was unconstitutional.
17. In eighteen separate cases the plaintiffs thereafter lodged their appeals with the Constitutional Court (ustavne žalbe), but, according to the information contained in the case file, these proceedings are all still pending.
18. The applicant was not entitled to lodge an appeal on points of law since the value of his claim was below the threshold of 500,000 dinars. He did not attempt to obtain constitutional redress.
19. The relevant provisions are set out in the Vinčić and Others v. Serbia judgment (nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, §§ 22-34, 1 December 2009).
20. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights.
21. Articles 394 § 1, 396 and 398 provide that parties may file an appeal on points of law (revizija) with the Supreme Court. They may do so within a period of thirty days following receipt of a final decision rendered at second instance, and only if the relevant legislation, procedural or substantive, has been breached by the lower courts.
22. Article 394 § 2 provides, inter alia, that an appeal on points of law is “not admissible” in pecuniary disputes (kad se tužbeni zahtev odnosi na potraživanje u novcu) where the “value of the part of the final judgment being contested does not exceed 500,000 dinars”.
23. Article 439 provides that an appeal on points of law is admissible in employment-related cases which concern one’s hiring or dismissal or the “existence” of one’s employment (u parnicama o sporovima o zasnivanju, postojanju i prestanku radnog odnosa)
24. In accordance with Articles 396 and 406-409, inter alia, the Supreme Court, should it accept an appeal on points of law lodged by one of the parties concerned, has the power to overturn and/or amend the impugned judgment or quash it and order a re-trial before the lower courts.
25. Article 422.10 provides that a case may be re-opened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue.
26. Article 40 §§ 2 and 3 provides, inter alia, that a meeting of a division (sednica odeljenja) of the Supreme Court shall be held if there is an issue as regards the consistency of its case-law. Any opinions (pravna shvatanja) adopted in such a meeting are binding for all panels (veća) of the division in question.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101657
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ALI v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1962 and lives in Bucharest. He has had Romanian nationality since 1999, has been in business and is married to a Romanian national.
5. On 29 May 2001 the police division responsible for combating organised crime and drug trafficking (“the drug traffic division”), of their own motion, began an investigation into allegations of drug trafficking offences being committed by three persons – the applicant, together with K.M. and D.H. – with the intention of selling 1.5 kg of heroin for 10,000 United States dollars (USD).
The same day, the Prosecutor's Office attached to the Supreme Court of Justice authorised the use of two undercover police agents with a view to determining the facts of the case, identifying the offenders and obtaining evidence. It also authorised them, together with one collaborator, to procure 2 kg of heroin. The Prosecutor's Office justified the issuing of the authorisation on the ground that it had good reason to believe that a drug trafficking offence was about to be committed.
6. On the same day, 29 May 2001, the applicant and D.H. met the undercover agents. According to the indictment issued in the case, D.H. asked for USD 10,000 for 1 kg of heroin. On 31 May 2001, the undercover agents met the three persons again, to discuss the details of the transaction.
7. On 1 June 2001, the undercover police agents met the suspects again in the applicant's apartment, where K.M. came with a bag. The agents reported later that they had been offered 1 kg of heroin for USD 10,000. When they left the building together, police surrounded them and took away the three suspects, while the undercover police agents left by car. The bag brought by K.M. was opened and a packet containing powder was found in it, along with shoes and food samples.
At the police headquarters the applicant was informed that there were drugs in the bag.
8. The undercover agents prepared a report on the flagrant offence. The suspects denied drug trafficking; in particular the applicant declared that he thought the money was for other merchandise and not for drugs (see paragraph 13 below).
9. The police searched the suspects' apartments and found a pack of 36.56 g of heroin in K.M.'s home. No drugs were found in the applicant's home. The search reports were attached to the file.
10. During the investigation, K.M. confessed to the crime and explained that he had received the drugs (one pack of 1 kg and another of 36.56 g) from a certain “Ahmed” and that the other two suspects were also aware of the drug sale.
On 4 July 2001 the police separated the investigation in respect of Ahmed and three other persons from that in respect of the applicant, D.H. and K.M.
11. On 2 June 2001 the applicant was remanded in the custody of the General Inspectorate of Police by order of the public prosecutor F.C. from the Prosecutor's Office attached to the Supreme Court of Justice.
12. On 9 July 2001 the Prosecutor's Office committed the applicant for trial for drug trafficking, an offence prohibited under Article 2 § 2 of Law no. 143/2000. F.C. drafted the indictment.
13. On 18 October 2001 the applicant gave a statement before the court. He averred that he had a company in Romania selling clothes and shoes and the two co-defendants had been his business partners. In May 2001 when K.M. asked the applicant to buy some merchandise from him, the applicant told him that he was no longer doing business but could put him in contact with D.H. The applicant, D.H. and the buyer (in fact an undercover police officer) were in the applicant's apartment when K.M. arrived with a bag containing samples of the merchandise (shoes and food). The applicant noticed that K.M. kept the bag closed in his hands throughout the visit.
The applicant also described the alleged police brutality during the arrest and claimed that he was not allowed to see a doctor.
14. The co-defendants also denied any drug-related offence. They claimed not to have been aware that the bag contained drugs.
15. On 13 December 2001 and 7 February 2002 the court heard six witnesses who were present at the arrest or during the searches of the defendants' homes.
On the latter date the applicant made a written statement reiterating his position, adding details to his version of the facts and claiming that he had been forced by the police into making statements.
16. The Bucharest County Court gave judgment on 21 February 2002. It convicted the applicant of drug trafficking and sentenced him to thirteen years' imprisonment. It also sentenced K.M. to fifteen years' imprisonment and D.H. to thirteen years' imprisonment.
The court upheld the prosecutor's description of the facts and noted that the prosecutor's act was based on the reports from the undercover agents, the report from the arrest and from the searches of the defendants' homes as well as on witness statements. It also noted that the defendants had alleged that they had been forced by police into confessing and had denied in their statements before the court having committed the offences. However, the court considered that they had failed to adduce evidence in support for their statements and thus discarded their declarations as being in contradiction with the other evidence in the file.
Furthermore, the court based its decision on the indictment, which in its view was supported by K.M.'s initial statement to the police, the arrest report, the confrontations between the co-defendants and the reports on the searches. It also noted that the defendants had not adduced evidence in their favour.
17. The applicant appealed against the judgment. He alleged that he had not been allowed by the first-instance court to adduce evidence, and asked the court to hear evidence in his defence, in particular to see the videotape recorded at the arrest and to question the undercover police officers.
On 20 June 2002 the Bucharest Court of Appeal rejected the appeal without giving any specific answer to the applicant's complaints about evidence.
18. The applicant appealed again, on points of law, claiming that the entire operation was a frame-up by the police and asking again that the undercover agents and all those who participated in the operation be brought before the court as witnesses.
In a final decision of 15 May 2003 the Supreme Court of Justice dismissed the appeal.
19. The applicant requested the revision of the final decision, arguing again that the courts should hear the undercover police agents and allow the confrontation between the applicant and those agents. He also argued that in fact one of the undercover agents had brought the heroin to K.M. while the other agent was the alleged buyer of the drugs.
On 23 June 2006 the Bucharest County Court dismissed the application, on the ground that the extraordinary court could not re-examine the evidence in the file. It noted:
“The decision under review was based on substantial evidence; the undercover agents did not have a decisive role, they merely contributed evidence that corroborated the suspects' statements, the report on the flagrant offence, and the home search reports.”
The appeals lodged by the applicant were dismissed, first by the Bucharest Court of Appeal on 30 May 2007 and then by the High Court of Cassation and Justice, in a final decision of 11 January 2008.
20. According to the applicant, he remained handcuffed during the public hearings before the judges in the ordinary proceedings on the merits. In its letter to the Government dated 14 February 2008 describing the conditions of detention in the police detention facilities, the General Inspectorate of Police mentioned that:
“...the detainees were handcuffed when they left the arrest centre... When presented to the courts, the detainees remained handcuffed, unless the president of the court expressly asked that the handcuffs be removed ([Ministry of Interior's] Regulation no. 901/1999).”
21. According to the applicant, while in pre-trial detention in the General Inspectorate of Police (from 2 June to July 2001 at the latest) he was the victim of ill-treatment by the police. He claimed to have been dragged daily from his cell over a period of fifteen to twenty days, and put in a toilet for fifteen to thirty minutes until the investigator eventually found the time to question him. He claimed to have then been stripped naked for thirty to forty minutes, searched and verbally abused by the police officers. He alleged that this had lasted for six hours daily.
22. On 21 June 2001, the applicant was allegedly hit on the head by a police officer in the prosecutor F.C.'s presence, because he had refused to sign the record of the police actions during the undercover operation which had led to his arrest.
23. On 5 April 2002 the applicant lodged a criminal complaint with the Military Prosecutor's Office concerning the alleged ill-treatment suffered at the hands of police and prosecutor F.C. He also alleged that he gave USD 5,000 to a prosecutor, through an intermediary, to help in the proceedings; he requested that the sum be reimbursed by F.C. and the middle man. On 28 June 2002 he gave a statement before the prosecutor, indicating the identity of the alleged culprits and asking that they be pursued for abuse of position, abusive behaviour and abusive investigation.
24. On 6 February 2003 the military prosecutor transferred the file to the Prosecutor's Office at the Bacău Court of Appeal, following the demilitarisation of the police.
25. Several referrals between the prosecutors' offices took place, and on 27 August 2003 the Prosecutor's Office attached to the Supreme Court of Justice dismissed the accusations on the ground that there was no evidence to support the allegations of abuse during the investigation.
26. According to the information from the domestic authorities, the applicant did not challenge the prosecutor's decision of 27 August 2003.
27. The complaint concerning the alleged acts of corruption by F.C. and the middle man was referred to the Prosecutor's Anti-Corruption Office, which on 14 January 2004 decided not to prosecute. On 6 May 2004 the applicant was informed of the decision.
28. A similar complaint lodged by C.D., the applicant's fellow inmate, on behalf of the applicant, alleging criminal offences committed by the prosecutor F.C. during the investigations, was also dismissed by the Prosecutor to the High Court of Cassation and Justice (the new Supreme Court) on 12 December 2005. The applicant's objection to the prosecutor's decision was dismissed by the High Court on 30 March 2006 for failure to exhaust the administrative complaint procedure set out in Article 2781 of the Code of Criminal Procedure, before lodging the complaint with the court (the decision became final on 16 October 2006 when the applicant's appeal on points of law was dismissed by the High Court, sitting as a panel of nine judges).
29. In 2005 the applicant also lodged a criminal complaint with the Prosecutor's Office attached to the Bucharest Regional Court against four police officers from the drug traffic division and three certified translators, alleging mainly that the police officers had used violence, threats and inducements in order to obtain evidence for the police report for the offence of 1 June 2001. On 14 November 2006, the Prosecutor attached to the Bucharest County Court dismissed the complaint concerning abusive investigation against the police officers on the grounds that the allegations had already been examined by the courts in the criminal proceedings against the applicant (which had been terminated by a final decision) and that there was nothing in the file to substantiate the idea that the investigation had been abusive. The prosecutor sent the case to the Prosecutor's Office to the Bucharest District Court for the remaining offences, regarding both the police officers and the certified translators.
The Court has received no recent information from the parties on the development of these proceedings.
30. According to the information provided by the Government from the domestic authorities, the applicant did not challenge the 14 November 2006 decision.
31. On 2 June 2001, the applicant was remanded in the custody of the General Inspectorate of Police. He remained there until 18 July 2001, except for the period from 22 June to 4 July when he was hospitalised in Jilava Prison Hospital. On 18 July, he was transferred again to Jilava where he remained until 13 August 2001, when he was transferred to Rahova Prison where he remained until 2008. According to the information available to the Court, the applicant is currently being held in Jilava Prison.
32. According to the applicant, in the same place of detention he was also underfed and kept in a damp cell. He claimed that he did not receive a suitable Muslim diet, but had to get marmalade, butter and tea from his two fellow inmates or biscuits and tea from the prison.
He claimed that he had tuberculosis. A medical report certifies that on 6 August 2001 the applicant had tuberculosis and piles.
33. According to the information from the Bucharest Police, the cells in the police detention facilities measured 20 sq. m and had four to five beds and three 2.5 sq. m windows each. The toilets and showers were situated in the cells and hot water was constantly available. The inmates had access to the windows to ensure ventilation of the cell. No concrete information about the applicant's stay was furnished, as, according to the applicable regulations, the relevant documents are kept by the prison authorities only for five years, which has already expired in the applicant's case.
34. According to the applicant, the conditions of detention in Rahova Prison are equally inappropriate: it was extremely cold in winter, when the heating system functioned for a short time only, there was hot water for only half an hour per week, there were ten to twelve inmates in a cell with ten beds, the food was not clean and there was almost no meat.
Since his transfer to Rahova, the applicant has had some health problems: scabies, articular rheumatism and renal and abdominal pain. The existing medical reports certify left renal microlithiasis, bladder lithiasis and right basal pachypleuritis. Moreover, the applicant allegedly did not receive the medical treatment he needed.
35. Based on the information from the National Prison Administration, the Government indicated that the applicant had been placed in cells measuring 18.8 sq. m with four to five bunk beds, or 24.6 sq. m with five to six bunk beds. The toilet room was attached to the cells and both had windows, to allow in air and natural light.
The Government did not provide concrete information on the occupancy rate of the applicant's respective cells, except for the last part of his stay, when he allegedly shared a 30.5 sq. m cell with ten bunk beds with nine codetainees. A separate room with toilet, sinks and showers was attached to the cell. They both had windows.
36. Hot water in the prison was available once a week before 6 June 2007 and twice a week after that date, between 12 noon and 1 p.m. and 5 p.m. to 6.30 p.m. Detainees received cleaning equipment from the prison administration. No information on the actual heating schedules was provided.
37. Lastly, the Government contended that the applicant had received food prepared in accordance with Muslim dietary norms.
38. From 21 to 22 June 2001 the applicant was an in-patient in Bucharest Emergency Hospital, which recorded in a medical report that he had craniocerebral trauma with moderate post-concussion and an “atrocious cephalalgia” with consciousness disorder.
39. From 22 June to 4 July 2001 the applicant was in Bucharest Jilava Prison Hospital. He alleged that he did not receive proper medication because of lack of funds for medicine. The official documents issued by the National Prison Administration at the Government's request as well as the medical register from the prison indicate that the applicant received treatment and food adequate to his medical conditions.
40. From 26 June to 31 July 2003 the applicant went on hunger strike; his condition was monitored and his health did not suffer significant deterioration.
41. In his statement of 18 October 2001 given before the Bucharest County Court, the applicant expressly complained that he had not been taken to a doctor.
42. During his detention the applicant did not request early release from prison on medical grounds, nor did he request specialised medical examination, nor to be taken to a civilian hospital for investigations. According to the applicant's medical record from prison, his treatment for his various conditions is continuing.
43. The relevant provisions of the Code of Criminal Procedure and of the police and military prosecutor statutes are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007), and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004). In paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above there is a description of the development of the law concerning complaints against decisions of the prosecutor (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004, “ Law no. 281/2003”).
44. The Government Emergency Ordinance no. 56 of 27 June 2003 (“Ordinance no. 56/2003”) regarding certain rights of convicted persons states, in Article 3, that convicted persons have the right to bring legal proceedings before the court of first instance concerning the implementing measures taken by the prison authorities in connection with their rights. Ordinance no. 56/2003 has been repealed and replaced by Law no. 275 of 20 July 2006, which has restated the content of Article 3 mentioned above in Article 38, which provides that a judge shall have jurisdiction over complaints by convicted persons against the measures taken by the prison authorities (see also Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008).
45. The provisions of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”) are described in Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, §§ 33-34 , 29 September 2009).
46. The Ministry of the Interior's Instruction no. 901/1999 on the organisation and functioning of preventive detention facilities under the control of the Ministry of the Interior was not published in the Official Bulletin.
On 13 November 2003 the Ministry of Justice issued Instruction no. 3352 on the rights and obligations of persons in preventive arrest which made no mention on the policy concerning the use of handcuffs and only repealed previous legislation that contradicted the new regulations. Ordinance no. 56/2003 makes no mention of it either. It is only in Law no. 275/2006, referred to above, that the use of handcuffs is expressly forbidden save for exceptional circumstances (Article 37) and cannot be used as sanction (Article 71).
It appears that in 2006 the Instruction no. 901/1999 was still in force, in so far as it concerned transport to the courts of persons in preventive detention (see Decision no. 980/2007 by the High Court of Cassation and Justice).
47. Article 68 § 2 of the Code of Criminal Procedure prohibits incitement to commit or continue committing a criminal offence with the purpose of obtaining evidence.
48. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). In particular, the Court notes that in the report on the 2002-2003 visits, the CPT expressed concerns over the limited living space available to prisoners and the insufficient space provided by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not sufficiently separate from the living space.
49. As far as Rahova Prison is concerned, the Romanian NGO Human Rights Defence Association Helsinki Committee (Apador-CH) prepared four reports regarding conditions of detention following visits to the Minors' and Women's Sections and to Rahova Prison Hospital in 2002, 2003 and 2005. Besides case-related conclusions, the reports stated that the prison was overcrowded and that meat was almost completely absent from the meals.
50. The Council of Europe's texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008-....
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