ITEMID: 001-79657
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GEERINGS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Just satisfaction reserved
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant, Gerardus A.M. Geerings, is a Netherlands national who was born in 1977 and lives in Eindhoven.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
On an unspecified date, the applicant was arrested and placed in pre-trial detention on suspicion of involvement – together with others – in various (attempted) thefts of lorries containing merchandise and thefts of merchandise from lorries (inter alia, washing machines, laundry dryers and other household appliances, telephones, computer parts, car radios, audiovisual devices and materials, clothes, bags, shoes, camping and sports equipment) committed between 1 August 1996 and 28 October 1997.
7. On 23 December 1997 the applicant was summoned to appear before the 'sHertogenbosch Regional Court (arrondissementsrechtbank) on 29 January 1998 in order to stand trial on various charges of (attempted) burglary, deliberately handling stolen goods and membership of a criminal organisation. Separate criminal proceedings were brought against a number of co-accused.
8. In its judgment of 20 May 1998 the 's-Hertogenbosch Regional Court convicted the applicant of several counts of participation in (attempted) burglary, deliberately handling stolen goods and membership of a criminal organisation. The Regional Court found it established that the applicant had been involved in the theft of 120 laundry dryers from a lorry and a trailer; the theft of a lorry; the theft of large numbers of telephones, computer parts and car radios from a lorry; the theft of 300 CD auto changers, 62 radio cassette players and a speaker sound system from a truck; the theft of large quantities of, inter alia, audio devices, dishwashers, shoes, vacuum cleaners and clothing from lorries and thefts of lorries; the handling of one or more stolen video cameras; the attempted theft of a lorry and the attempted theft of goods from a lorry. It sentenced the applicant to five years' imprisonment less the time spent in pre-trial detention.
9. The applicant lodged an appeal with the 's-Hertogenbosch Court of Appeal (gerechtshof). In its judgment of 29 January 1999 the Court of Appeal quashed the judgment of 20 May 1998, convicted the applicant of having participated on 28 or 29 September 1997 in the theft of a lorry and a trailer containing 120 laundry dryers, of having on 25 September 1997 stolen an articulated lorry and a number of printers and of having handled – in the period between 1 August 1996 and 28 October 1997 – a piece of clothing and a video camera in the knowledge that these items had been obtained through crime. It acquitted the applicant of the remainder of the charges, having found that these had not been lawfully and convincingly proved. The Court of Appeal sentenced him to thirty-six months' imprisonment, of which twelve months were suspended for a probationary period of two years. In addition, it declared inadmissible the compensation claim filed by the civil party (benadeelde partij). Finding this claim to be too complicated to be dealt with in criminal proceedings, the Court of Appeal decided that it should be brought before a civil court.
10. In the meantime, on 7 January 1999, the public prosecutor had summoned the applicant to appear before the 'sHertogenbosch Regional Court on 4 February 1999 in order to be heard in connection with the prosecutor's request for an order for the confiscation of an illegally obtained advantage (vordering tot ontneming van wederrechtelijk verkregen voordeel) within the meaning of Article 36e of the Criminal Code (Wetboek van Strafrecht), which had been assessed by the public prosecutor at a total amount of 147,493 Netherlands guilders (NLG – equivalent to 67,020.16 euros (EUR)).
11. At the hearing held before the Regional Court on 4 February 1999 the prosecutor maintained the request for a confiscation order, arguing that it also concerned similar offences as referred to in Article 36e § 2 of the Criminal Code and that, although the Court of Appeal had acquitted the applicant of most of the offences he had been charged with, there remained sufficient indications that he had committed them. The applicant argued that a confiscation order could only be imposed in respect of the offences of which he had been found guilty. This would, according to the prosecutor's assessment, result in a confiscation order for an amount of NLG 13,989 (EUR 6,347.93) at most.
12. In its ruling of 18 March 1999 the Regional Court issued a confiscation order for the amount of NLG 13,789, to be replaced, if this sum was not paid or recovered, by 110 days' detention in lieu. It held that the acquittal in the judgment handed down by the Court of Appeal on 29 January 1999, for which no specific reasons were given, could therefore only be understood as meaning that there were no indications that the applicant had committed the offences concerned, let alone that he might have derived any resulting advantage.
13. The applicant, but not the public prosecutor, filed an appeal against this ruling with the 's-Hertogenbosch Court of Appeal. The applicant denied having derived any advantage from the offences of which he had been convicted.
14. In its decision of 30 March 2001, following a hearing held on 15 February 2001, the Court of Appeal quashed the ruling of 18 March 1999 and imposed a confiscation order in the amount of NLG 147,493, to be replaced, if this sum was not paid or recovered, by 490 days' detention in lieu. Its reasoning included the following:
“[The applicant's acquittal] on appeal of a number of offences [with which he had been charged] does not lead to the conclusion that those offences, in view of their nature, can no longer be regarded as similar offences within the meaning of Article 36e § 2 of the Criminal Code. The relevant applicable statutory provisions do not oppose this in any way. In addition to the condition of similarity, it is only required that there exist sufficient indications that [the applicant] has committed the offences concerned.
The court is therefore of the opinion that it can still consider, in respect of all offences on which the public prosecutor has based the [request for a confiscation order], whether there exist sufficient indications [that the applicant has committed them].
By judgment of 29 January 1999 of the 's-Hertogenbosch Court of Appeal [the applicant] has been convicted of ...
Pursuant to Article 36e of the Criminal Code it must be examined whether, and if so to what extent, the defendant has illegally obtained an advantage – including savings in costs – by means of or from the proceeds of the offences found proved, of similar offences or of other offences in respect of which there exist sufficient indications that they have been committed by the defendant and for which a fifth-category fine may be imposed.
The court finds that [the applicant] has not only illegally obtained an advantage from the above-mentioned offences ... found proved, but has also obtained an advantage from the following similar offences, all set out in the initiatory summons served on [the applicant] ... in respect of which [offences] there are sufficient indications that they have been committed by him.
The amount fixed by the court as the estimated advantage obtained by [the applicant] is set out after each of the offences.
count 2B of the initiatory summons, referred to as case 5: advantage NLG 12,000;
count 3 of the initiatory summons, referred to as case 23: advantage NLG 3,102;
count 4b of the initiatory summons, referred to as case 10: advantage NLG 12,500;
count 4c of the initiatory summons, referred to as case 13: advantage NLG 8,000;
count 4d of the initiatory summons, referred to as case 16: advantage NLG 1,619;
count 4e of the initiatory summons, referred to as case 17: advantage NLG 12,600;
count 4f of the initiatory summons, referred to as case 20: advantage NLG 17,637;
count 4g of the initiatory summons, referred to as case 22: advantage NLG 4,222;
count 4h of the initiatory summons, referred to as case 27: advantage NLG 30,670;
count 4i of the initiatory summons, referred to as case 31: advantage NLG 20,000;
count 4m of the initiatory summons, referred to as case 43: advantage NLG 11,354.
The court will fix the estimated advantage obtained by [the applicant] from the offences found proved, in accordance with the decision of the Regional Court, in the following amounts:
count 1 of the initiatory summons, referred to as case 3: advantage NLG 3,789;
count 4 of the initiatory summons, referred to as case 9: advantage NLG 10,000.
The court therefore fixes the amount of the estimated advantage illegally obtained by [the applicant] at NLG 147,493.
The court derives the assessment of the [applicant's] illegally obtained advantage inter alia from a report of 4 September 1998 by the Organised Crime Unit, Financial Desk/BFO of the Criminal Investigation Department of the South-East Brabant Regional Police (reference PL2219/98-050011), in particular as regards the calculation of the proceeds of the stolen goods and the distribution of the proceeds between those concerned.
The means of evidence used by the court are set out in the addendum as referred to in Article 365a and 365b of the Code of Criminal Procedure (Wetboek van Strafvordering); this addendum is appended to this ruling. ...
It was argued in the appeal proceedings by and on behalf of the [applicant] that he had never received pecuniary remuneration for his part in the offences in which he was involved. The court rejects this argument, since the court has become convinced, on the grounds of the evidence cited above, that the [applicant] participated in a group of persons who were systematically involved in a very lucrative manner in the theft of costly goods from lorries, and that it is wholly implausible that the [applicant] should not have obtained his share of the proceeds of those goods that, according to the cited means of evidence, have often demonstrably been sold for good money...”
15. In relevant part, the police report of 4 September 1998, as appended to this ruling, reads as follows:
“Determination of the illegally obtained benefit:
A. Where amounts of money received are known
The starting point in determining the amount of an illegally obtained advantage under Article 36e of the Criminal Code is the advantage actually obtained by the suspected/convicted person.
In several of the incidents investigated, the amount of money that was paid by the receivers of stolen goods to the thieves and/or other receivers of stolen goods for the goods stolen appears from recorded intercepted conversations and/or statements.
These amounts have been ascribed, as illegally obtained benefit, to the perpetrator(s) and, where appropriate, divided evenly among the persons concerned.
Relevant costs incurred by the suspect(s) have been taken into account.
B. Where amounts of money received are not specifiable
The following is apparent from the criminal investigation.
It appears from the appended intercepted conversation (appendix 3) that the ... receiver of stolen goods F.T. paid 25% of the wholesale trade value to the thieves....
It appears from the appended intercepted conversation (appendix 4) that a receiver of stolen goods (E.V.), when calculating in accordance with normal practice, reckons one-fifth. This presumably means 1/5 of the retail price ... Where there is no specific information about the amounts of money received by the thieves and/or receivers of stolen goods, the illegally obtained benefit was assessed on the basis of the wholesale purchase value, excluding VAT (value-added tax), of the stolen goods.
Calculation in respect of the thieves
With regard to incidents where the amount paid by the receivers of stolen goods to the thieves does not appear from the investigation, it has been assumed that an amount of 25% of the wholesale purchase value, excluding VAT, of the goods stolen was paid to the thieves.
Applying this estimate results in a lower amount for illegally obtained benefit than an estimate based on 25% of the wholesale trade value or 20% of the retail price as the case may be. This is to the advantage of the suspect(s).”
16. In respect of each of the counts 2B, 3, 4b-i and 4m, as set out in the initiatory summons issued in the applicant's case, the report of 4 September 1998 – in so far as it was used in evidence by the Court of Appeal in the confiscation proceedings – contains a statement that, in the substantive criminal proceedings at first instance, the applicant was convicted of the charge concerned. It further appears from this report that, in respect of each of these counts, the estimate of the illegally obtained advantage was mainly based on the contents of intercepted telephone conversations in which the participants (thieves and handlers of stolen goods) discussed money matters in relation to stolen goods, the presence of some of the stolen goods in the homes of a number of perpetrators, and the wholesale purchase value of the stolen goods.
17. The applicant lodged an appeal in cassation with the Supreme Court (Hoge Raad) against the ruling of 30 March 2001, complaining inter alia that the imposition of a confiscation order in respect of offences of which he had been acquitted violated his right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention.
18. In his advisory opinion, the Procurator General at the Supreme Court considered – on the basis of the Court's considerations in its judgment in the case of Phillips v. the United Kingdom (no. 41087/98, §§ 31-33 and 35, ECHR 2001-VII) – that the scope of Article 6 § 2 of the Convention generally did not extend to confiscation proceedings, but that this did not affect the obligation to verify whether it followed from the particular circumstances of the applicant's case that an issue under Article 6 § 2 arose nevertheless. On this point, the Procurator General considered, on the basis of an extensive analysis of the Court's case-law under Article 6 § 2, that the question arose whether the conclusion of the Court of Appeal that there were sufficient indications that the applicant had committed offences similar to those of which he had been convicted entailed a finding of “guilt”, taking into account that the applicant had been acquitted of those similar offences.
19. The Procurator General observed that the Court of Appeal had found that, despite the acquittal, there were sufficient indications that the offences of which the applicant had been acquitted had been committed by him. In his opinion, this was incompatible with the general rule – reaffirmed by the Court in its judgment in the case of Asan Rushiti v. Austria (no. 28389/95, § 31, 21 March 2000) – that following a final acquittal, even the voicing of suspicions regarding an accused's innocence was impermissible and incompatible with Article 6 § 2. Furthermore, the Court of Appeal had based its finding in the confiscation proceedings on evidence apparently insufficient for a criminal conviction and this had resulted in a decision imposed on the applicant of such severity that it should be regarded as a “penalty” within the meaning of Article 7 § 1 of the Convention. Further taking into account that the Court of Appeal had also based its finding that there were sufficient indications that similar offences had been committed by the applicant on a convicting, yet subsequently quashed, judgment given by the Regional Court, the Procurator General was of the opinion that the conclusion that Article 6 § 2 had been violated was unavoidable. In his opinion, the possibility under Article 36e § 2 of the Criminal Code to impose a confiscation order was limited to offences not included in a charge brought, such as offences appended to the summons for the court's information (ad informandum gevoegde feiten) or other offences that were apparent from the case file (andere feiten die blijken uit het proces-verbaal), as mentioned in the Explanatory Memorandum in respect of Article 36e § 2 of the Criminal Code. Consequently, he advised the Supreme Court to accept the applicant's complaint under Article 6 § 2, to quash the decision of 30 March 2001 and to remit the case to a different Court of Appeal for a fresh determination of the applicant's appeal.
20. On 1 April 2003 the Supreme Court rejected the applicant's appeal in cassation. It held, in so far as relevant, as follows:
“3.3. In its ruling of 22 May 2001, NJ [Nederlandse Jurisprudentie – Netherlands Law Reports] 2001, no. 575, the Supreme Court held as follows:
- The provisions of Article 36e of the Criminal Code and [Articles 551b – 511i] of the Code of Criminal Procedure concern the imposition of a measure on the person convicted of a punishable offence, namely the obligation to pay a sum of money to the State for the purposes of confiscating an illegally obtained advantage. This does not constitute a penalty, but a measure (maatregel) aimed at depriving the person of the illegally obtained advantage. The fact that the imposition of that measure has been given a place in a criminal procedure does not alter its particular character.
- That particular character is also expressed in the requirements set for imposing it. These requirements are less strict than those that must be met for imposing a [criminal-law] penalty. Thus, the rules of evidence applicable in criminal proceedings do not apply in their entirety. Consequently, offences included in a criminal charge that have resulted in an acquittal can still form the basis for the imposition of a (confiscation) measure. Also in such a case, the court will have to determine either that there exist sufficient indications that a similar offence or similar offences, referred to in Article 36e § 2 of the Criminal Code for which a fine of the fifth category may be imposed, has/have been committed by the person concerned, or that it is plausible that the other similar offences, referred to in Article 36e § 3 of the Criminal Code, have in some way resulted in the illegal obtaining of an advantage by the person concerned. Such a determination is preceded by the procedure regulated in Articles 511b et seq. of the Code of Criminal Procedure. This serves as a guarantee that the court which must determine a request for a confiscation order filed by the prosecution department will only do so after it has examined whether, and has found that, the statutory conditions, including whether there are indications within the meaning of the second paragraph [of Article 36e] or whether there is plausibility within the meaning of the third paragraph [of Article 36e], have been met.
- It follows from the above that the circumstance that the suspect has been acquitted of specific offences does not automatically constitute an obstacle to treating those offences, in the context of the confiscation procedure, as 'similar offences' or 'offences for which a fifth-category fine may be imposed' as referred to in Article 36e § 2 of the Criminal Code.
3.4. The Supreme Court would add that this is not incompatible with Article 6 § 2 of the Convention since the procedure under Articles 511b et seq. of the Code of Criminal Procedure provides the person concerned with the opportunity to defend himself, including the possibility to argue that insufficient indications exist that the similar offence or similar offences for which a fifth-category fine may be imposed, as meant in Article 36e § 2 of the Criminal Code, has/have been committed by [him], or that it is not plausible that the other punishable offences, within the meaning of Article 36e § 3 of the Criminal Code, have resulted in the illegal obtaining of an advantage by [him], and why this is so. The fact that the procedure following a ... [request for a confiscation order] must be regarded as a separate part or a continuation of the same [set of] criminal prosecution [proceedings] that can lead to conviction and sentence (see Hoge Raad, 5 December 1995; NJ 1996; no. 411) does not necessitate any different finding.
3.5. Given that it has not been argued, nor is it apparent, that the opportunity referred to in [the above paragraph] 3.4. has not been provided in the instant case, the decision of the Court of Appeal does not disclose an incorrect interpretation of the law. In view of the events of the appeal hearing, as recorded, that decision has been sufficiently reasoned.”
This decision was published in the Netherlands Law Reports 2003, no. 497.
21. In 2004 the applicant agreed with the Central Judicial Collection Office (Centraal Justitiëel Incasso Bureau) that he would pay EUR 10,000 at once and the remainder in monthly instalments of EUR 150.
22. Article 36e of the Criminal Code (Wetboek van Strafrecht) provides:
“1. Upon the application of the Public Prosecutions Department, any person who has been convicted of a criminal offence may be ordered in a separate judicial decision to pay a sum of money to the State so as to deprive him of any illegally obtained advantage.
2. Such an order may be imposed on a person as referred to in paragraph 1 who has obtained an advantage by means of or from the proceeds of the criminal offence in question or similar offences or offences for which a fifth-category fine may be imposed, in connection with which there exist sufficient indications that they were committed by him.
3. Upon the application of the Public Prosecutions Department, any person who has been found guilty of an indictable offence for which a fifth-category fine may be imposed and against whom, in connection with his being suspected of that offence, a criminal financial investigation (strafrechtelijk financieel onderzoek) has been instituted, may be ordered in a separate judicial decision to pay a sum of money to the State in order to deprive him of any illegally obtained advantage if, having regard to that investigation, it is likely that other criminal offences have led in whatever way to the convicted person obtaining an illegal advantage.
4. The judge shall determine the amount which the illegally obtained advantage is estimated to represent. The advantage shall be taken to include cost savings. The value of goods which the court deems to form part of the illegally obtained advantage may be estimated to be their market value at the time the decision is taken or may be estimated by reference to the yield to be obtained through public auction if the amount is to be recovered. The court may set the amount to be paid at less than the estimated advantage.
5. The expression 'goods' shall be taken to mean all objects and property rights.
6. In determining the amount which the illegally obtained advantage is estimated to represent, legal claims from disadvantaged third parties awarded by a court shall be deducted.
7. In imposing the order, account shall be taken of orders to pay a sum of money by way of deprivation of illegally obtained advantage imposed under previous decisions.”
23. The possibility of depriving a person of proceeds of crime was introduced in 1983 by the Financial Penalties Act (Wet Vermogenssancties). On 1 March 1993, the Act of 10 December 1992 on the extension of the possibilities of applying the measure of deprivation of illegally obtained advantage and other financial penalties (Wet tot verruiming van de mogelijkheden tot toepassing van de maatregel van ontneming van wederrechtelijk verkregen voordeel en andere vermogenssancties) entered into force. One of the changes brought about by this Act was that the proceedings concerning the measure of deprivation of an illegally obtained advantage were disconnected from the substantive criminal proceedings, among other reasons in order to prevent situations in which issues concerning the illegally obtained advantage would overshadow and affect the duration of the substantive criminal proceedings.
24. The Act established a specific procedure – separate from the criminal proceedings taken against a suspect – for imposing a confiscation order under Article 36e of the Criminal Code. This specific procedure is set out in Articles 511b-511i of the Code of Criminal Procedure (Wetboek van Strafvordering). The legislature's choice in setting it out thus was to demonstrate that it concerned a continuation of the criminal prosecution of the convicted person, the purpose being to determine the sanction to be imposed (Kamerstukken (Parliamentary Documents) II, 1989/90 session, 21,504 no. 3, p. 14). The confiscation order procedure is not designed or intended to determine a criminal charge or a criminal penalty, but to detect illegally obtained proceeds, to determine their pecuniary value and, by way of a judicial confiscation order, to deprive the beneficiary of these proceeds. The aim pursued by the possibility of imposing confiscation orders is twofold; in the first place to remedy an unlawful situation and, secondly, to bring about a general crime-prevention effect by rendering crime unattractive on account of an increased risk that proceeds of crime will be confiscated.
25. Pursuant to Article 511b § 1 of the Code of Criminal Procedure, a request for a confiscation order under Article 36e of the Criminal Code must be filed by the public prosecutor with the Regional Court as soon as possible and not later than two years after a conviction has been handed down in the substantive criminal proceedings by the first-instance trial court. It is not required that, when such a request is filed, the conviction should have obtained the force of res judicata.
26. Article 311 § 1 of the Code of Criminal Procedure obliges the public prosecutor to indicate no later than when delivering the closing speech (requisitoir) before the first-instance trial court in the substantive criminal proceedings whether the prosecution intends to seek a confiscation order in the event of a conviction. The purpose of this obligation is to prevent a situation where a convicted person is confronted, at the latest two years after his conviction by a first-instance court, with a request for a confiscation order, and to make clear that a confiscation order procedure does not constitute a fresh, second prosecution based on the same facts but is to be understood as a separate part of the earlier substantive criminal proceedings and that the prosecution does not stop after the end of the substantive criminal proceedings but is pursued in the confiscation order procedure.
27. The notion of “similar offence or offences” under Article 36e § 2 of the Criminal Code relates to offences of a similar nature to those having formed the object of the criminal proceedings against the accused, such as, for instance, drugs offences, property offences and offences involving forgery and fraud.
28. The rules of evidence that apply in criminal proceedings, as set out in Articles 338-344a of the Code of Criminal Procedure, are not applicable to the confiscation order procedure. In that procedure it is for the public prosecutor to establish a prima facie case that there are sufficient indications that the person concerned has committed one or more similar offences within the meaning of Article 36e § 2 of the Criminal Code, thereby generating an illegally obtained advantage. It is for the person concerned to rebut the prosecutor's case. The judge will decide the case on the basis of a balancing of probabilities, comparable to the standard of proof applicable in civil proceedings.
29. The fact that the rules of evidence applicable in criminal proceedings do not apply to the confiscation order procedure implies that – if in criminal proceedings an accused has been partly convicted and partly acquitted of the charges brought against him – in subsequent confiscation order proceedings the judge may impose a confiscation order against the person concerned which is not only based on the offence(s) of which he has been convicted, but also on the similar offence(s) of which he has been acquitted but in respect of which the judge is satisfied, on the balance of probabilities, that there exist sufficient indications that he has nonetheless committed them.
30. Pursuant to Article 511f of the Code of Criminal Procedure, the judge can derive the assessment of the actual amount of an illegally obtained advantage under Article 36e of the Criminal Code only from the contents of “lawful means of evidence” (wettige bewijsmiddelen). Article 339 of the Code of Criminal Procedure defines “lawful means of evidence” as the personal observations of the judge, statements of the accused, statements of a witness, statements of an expert, and written materials (such as, for instance, judicial decisions and formal minutes and records). However, unlike the requirement in criminal proceedings that a conviction can only be based on evidence that is corroborated by other evidence, the assessment of the amount of an illegally obtained advantage in confiscation order proceedings can be based on only one evidentiary item, such as, for instance, a formal record containing the statement of the person concerned.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-99403
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ASHOT HARUTYUNYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1 and 6-2;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1952. At the time of his death he was serving his sentence at the Kosh penitentiary institution.
6. On 29 November 2001 criminal proceedings were instituted in respect of the applicant on account of fraudulent acquisition of property and falsification of documents. The applicant, who had no previous convictions, was suspected of defrauding his business partner, V.G.
7. On 8 February 2002 the investigating authority ordered an opinion to be prepared by a handwriting expert. On 8 May 2002 the investigating authority ordered two accounting expert opinions to be prepared by two accounting experts V.A. and A.M.
8. On 8 July 2002 the investigating authority recognised V.G. as a victim and as the civil plaintiff.
9. On 14 March 2003 the applicant was formally charged with the above offences, and a new charge of tax evasion.
10. On 6 May 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) decided to detain the applicant.
11. On 12 June 2003 the prosecutor approved the indictment, which was then submitted to the courts. Attached to the indictment was the list of persons subject to be called to court. This list included the accused, the victim, ten witnesses, including the applicant's accountant K.S. and treasurer K.M., and the two accounting experts V.A. and A.M.
12. On 14 June 2003 the criminal case against the applicant was put before the Malatia-Sebastia District Court of Yerevan (Երևան քաղաքի Մալաթիա-Սեբաստիա համայնքի առաջին ատյանի դատարան).
13. On 3 December 2003 the victim lodged his civil claim seeking damages in the amounts of 34,159,008 Armenian drams (AMD) and 119,000 United States dollars (USD).
14. On 27 January 2004 the Malatia-Sebastia District Court of Yerevan found the applicant guilty as charged and sentenced him to seven years in prison. The court also fully granted the victim's civil claim for damages. The court based its judgment on, inter alia, the statements of ten witnesses examined in court, including accountant K.S. and treasurer K.M, an act prepared by the tax authority specialists, two court-ordered accounting expert opinions, the statements of accounting experts V.A. and A.M., and a handwriting expert opinion.
15. On 10 February 2004 the applicant lodged an appeal with the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան). The applicant also submitted written explanations concerning the civil claim, in which he requested the Court of Appeal to call and examine the victim's accountant S.H. as a witness. He also requested that accountant K.S. and treasurer K.M. be called for additional examination. He further asked to call three other persons, K., H. and Z. To substantiate his request to have accountants S.H. and K.S. called and examined, the applicant submitted to the court two accounting reports prepared by them which, according to him, contained exculpatory information.
16. On 19 March 2004 the Criminal and Military Court of Appeal held its first hearing. In the courtroom the applicant was placed in a metal cage which measured about 3 sq. m. The applicant was represented by two defence counsel. At the hearing, the applicant's defence counsel filed a motion with the court, arguing that the applicant's placement in a metal cage in the presence of many people, including relatives and friends, amounted to degrading treatment and humiliated him. Furthermore, this violated the principle of equality of arms, because the applicant, being in a cage, was not able to feel equal to the other parties. The fact that the applicant was a detainee was not sufficient justification to keep him in a metal cage during the court hearings. Nor did the law on arrested and detained persons prescribe placement of a detainee in a metal cage in the courtroom. The defence counsel requested the court to release the applicant from the cage and to allow him to be seated in the seats meant for the parties, namely next to his lawyer.
17. The prosecutor objected to this motion, claiming that the law on arrested and detained persons said nothing about a defendant being released from the metal cage. Besides, the defendant was to be seated in the seat meant for him and that could not be regarded as violating his dignity. The victim's representative also objected to this motion, claiming that the applicant was a detainee, therefore he had to be kept in a metal cage. Furthermore, there were no requisite security measures in the courtroom.
18. The Court of Appeal decided to refuse this motion as unsubstantiated, finding that the placement of the defendant in the seat meant for him during the court hearings did not violate the rights invoked by the defence. The court further stated that its decision was based on security considerations.
19. During the entire proceedings before the Court of Appeal the applicant was kept in the metal cage. The proceedings lasted about two months and included at least twelve public hearings. According to the applicant, the hearings lasted on average about four hours. It appears that they were attended by the applicant's children, wife, siblings and friends, and other members of the public.
20. At the hearing of 21 May 2004 the applicant repeated his request to call witnesses, made earlier in his written explanations. The Court of Appeal refused this request on the ground that accountant K.S. and treasurer K.M. had already been examined and made detailed statements during the investigation and the proceedings in the District Court. As to the accountant S.H., the court stated that it was unnecessary to call her in this particular case. As to K., H. and Z., the court stated that their identity was unknown.
21. On 25 May 2004 the Criminal and Military Court of Appeal upheld the applicant's sentence. The Court of Appeal only partially granted the victim's civil claim, awarding him AMD 23,063,108 and USD 119,000.
22. On 4 June 2004 the applicant lodged an appeal on points of law.
23. On 30 July 2004 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the appeal and upheld the applicant's conviction.
24. It appears that, prior to his placement in detention, the applicant suffered from a number of diseases, including acute bleeding duodenal ulcer and diabetes. It further appears that he had suffered a heart attack in 2001.
25. On 6 May 2003 the applicant was placed in Nubarashen Detention Facility («Նուբարաշեն» քրեակատարողական հիմնարկ).
26. On 7 May 2003 the applicant was examined by a doctor upon his admission to the detention facility. It was noted that he suffered from ischemic heart disease, gallstones and diabetes.
27. On 20 June 2003 the applicant was examined by a surgeon of the facility's medical unit to whom he complained of pain in the epigastric region which worsened at night and improved after eating. He further complained of loss of weight and frequent vomiting. The surgeon noted that the applicant, prior to his detention, had been diagnosed with an acute bleeding duodenal ulcer and recommended to have surgery. The applicant agreed in writing to have surgery.
28. On 26 June 2003 the applicant was transferred to the Hospital for Prisoners («Դատապարտյալների հիվանդանոց» քրեակատարողական հիմնարկ). According to the applicant's treatment plan, developed upon his admission, the applicant was supposed to undergo blood and urine tests, an electrocardiogram, a gastroscopy, and consultations with a cardiologist and an endocrinologist.
29. It appears from the applicant's hospital medical file that the applicant was under regular medical observation.
30. On 27 and 28 June 2003 blood and urine tests were carried out.
31. On 30 June and 4 July 2003 an endoscopy and a gastroscopy were performed. The diagnosis of an acute, bleeding duodenal ulcer was confirmed. It appears that on the latter date the applicant also underwent haemostatic treatment of the ulcer.
32. On 3 July 2003 the applicant underwent an ultrasound scan of his abdominal area and urinary organs.
33. On 7 July 2003 the applicant's gastrointestinal problems exacerbated, causing him to feel dizzy and to collapse. Medical aid was provided.
34. By a letter of 8 July 2003 the chief of the Hospital for Prisoners informed the judge examining the applicant's case that the applicant had been admitted to the hospital as an emergency case and had been diagnosed with an acute bleeding duodenal ulcer. On 4 July 2003 a gastroscopy had been performed, accompanied by haemostatic therapy. The applicant continued to receive treatment and for the time being was unfit for trial.
35. On 11 July 2003 an electrocardiogram was performed.
36. On 23 July 2003 the applicant was examined by an endocrinologist. The endocrinologist recommended an additional glycaemia test on an empty stomach in order to decide on the applicant's further treatment.
37. On 29 July 2003 the applicant was discharged from the hospital and transferred back to the detention facility. According to the relevant discharge certificate (էպիկրիզ) issued by the Chief of the Hospital, M.G., and the Head of the Surgical Unit, A.D.:
“Following the relevant examination and consultations carried out in the unit, [the applicant] was diagnosed as having an ulcer, acute bleeding duodenal ulcer, diabetes (type 2, medium degree, subcompensated stage) and diabetic angiopathy, for which, apart from the relevant treatment, on 4 July 2003 [the applicant] received haemostatic therapy of the ulcer and was discharged on 29 July 2003. The patient must undergo regular medical check-ups.”
38. On the same date it was noted in the applicant's medical file that he was being discharged after receiving appropriate treatment and was in satisfactory condition.
39. The Government alleged that the applicant had also undergone the recommended surgery at the hospital. The applicant contested this allegation and claimed that no surgery had been carried out.
40. On 5 August 2003 the applicant was transferred to the medical unit of the detention facility for further treatment since his state of health had deteriorated. At the medical unit, the applicant was examined by a doctor to whom he complained of, inter alia, pain in his chest, dry mouth, asthenia, headache, dizziness and occasional vomiting. Blood and urine tests were carried out.
41. From 11 to 29 August 2003, according to the records made in his medical file, the applicant was under regular medical observation and received medication. Regular check-ups were performed once every two to three days. His state of health during this period was recorded as fluctuating between stable and deteriorated.
42. On 14 August 2003 an ambulance was called to the courtroom since the applicant's heart condition worsened. He was examined by a cardiologist and diagnosed with ischemic heart disease, post-infarction cardiosclerosis and rest stenocardia. An electrocardiogram was prescribed as well as medication including validol, analgin and dimedrol.
43. On 22 August 2003 an ambulance was called to the courtroom for the same reasons. The applicant's heart diagnosis was confirmed and in-patient examination and treatment were recommended.
44. By a letter of 22 August 2003 the examining judge informed the chief of the detention facility about the events of 14 and 22 August 2003 and inquired about the applicant's state of health and whether he was receiving requisite medical assistance.
45. By a letter of 28 August 2003 the chief of the detention facility informed the judge that the applicant was suffering from ischemic heart disease, exertion and rest stenocardia, post-infarction cardiosclerosis, diabetes, diabetic angiopathy and bleeding duodenal ulcer. The letter further stated that the applicant was under constant medical observation and was receiving treatment.
46. On 9 September 2003 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice (ՀՀ արդարադատության նախարարության քրեակատարողական վարչության պետ), stating that the applicant's state of health required regular medical check-ups and requesting his transfer to the Hospital for Prisoners for treatment. It appears that no reply to this complaint was received
47. On 13 October 2003 the applicant was transferred from the medical unit back to his cell.
48. The applicant alleged that from the date of his transfer to his cell in the detention facility until his transfer to a correctional facility on 13 August 2004 he was never examined by a doctor. He had verbally applied on numerous occasions to the administration of the detention facility requesting medical assistance, but no such assistance or medication had been provided, nor any special diet prescribed. The necessary medicines and food products were provided by his relatives on a regular basis.
49. The Government confirmed that the applicant had verbally applied to the administration of the detention facility for medical assistance within the above-mentioned period, but alleged that such assistance had been provided to the applicant on each and every occasion, including necessary medicines and diet. He was regularly checked by a doctor and, if any symptoms were disclosed, he promptly received the necessary treatment. The detention facility was staffed with the following specialists: two physicians, one psychiatrist-neurologist, one dermatologist, one dentist, one tuberculosis specialist, one laboratory assistant and six doctors' assistants. The latter visited the detainees every day to check their health and the doctors were immediately alerted if there were any problems.
50. In support of this allegation the Government submitted a statement made on 27 June 2006 by the Principal Specialist of the Medical Assistance Unit of the Criminal Corrections Department of the Ministry of Justice, A.H. According to this statement, between October 2003 and August 2004 the applicant had regularly applied to the medical staff of the detention facility and had received medical consultations and out-patient treatment for ischemic heart disease, exertion and rest stenocardia, diabetes and duodenal ulcer. Medication was prescribed, including solution of analgin, papaverin, dibazol, phurosemid, validol, ranitidine, nitrong and diabeton, which the detention facility received on a quarterly basis from the Hospital for Prisoners.
51. On 18 December 2003 the applicant underwent an ultrasound scan of his abdominal area by an outside doctor invited by his relatives.
52. On 9 February 2004, as it appears from the relevant certificate, the applicant was found to be fit for work after being examined by a doctor.
53. The court hearing scheduled for 13 April 2004 was adjourned because of the applicant's poor health.
54. On 17 June 2004 the applicant's counsel applied to the Chief of Nubarashen Detention Facility, complaining that it was dangerous for the applicant, in view of his health, to be kept in a common cell. He further complained that, in spite of this, the applicant had recently been transferred to another cell where conditions were even worse. Counsel requested that the applicant be urgently transferred to a hospital for treatment.
55. On 17 July 2004 the applicant's counsel applied to the Head of the Criminal Corrections Department of the Ministry of Justice, complaining that, notwithstanding the applicant's state of health, he was kept in a common cell. He further complained that the Chief of Nubarashen Detention Facility had failed to transfer the applicant to a hospital and to provide treatment.
56. On 27 July 2004 at 1.20 a.m. an ambulance was called to the detention facility because the applicant suffered a heart attack.
57. On 28 July 2004 the applicant's counsel lodged a similar complaint to that of 17 July 2004, with a copy to the Chief of Nubarashen Detention Facility.
58. By a letter of 29 July 2004 the Head of the Criminal Corrections Department replied to counsel's complaint of 17 July 2004, stating that the applicant had already been hospitalised twice for treatment from 26 June to 29 July 2003 and from 5 August to 13 October 2003. The letter further stated that the applicant was currently under observation by the medical staff and his state of health was satisfactory.
59. On 11 and 12 August 2004 the applicant's counsel lodged two complaints with the Head of the Criminal Corrections Department and with the Minister of Justice, with a copy to the Chief of Nubarashen Detention Facility, claiming that the applicant's state of health was deteriorating daily, but no measures were being taken. He submitted that the applicant's illnesses required a special diet, regular medical check-ups and medication. In spite of this, the applicant was kept in conditions where none of this was available.
60. By a letter of 13 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 28 July 2004, stating that the letter of 29 July 2004 had already answered the issues raised.
61. On 13 August 2004, after his conviction was upheld in the final instance, the applicant was transferred to Kosh correctional facility to serve his sentence.
62. On 14 August 2004 the applicant was examined by a doctor upon his admission to the correctional facility. He complained of asthenia, dizziness and of pain in his epigastric area and the left part of his back. His general state of health was found to be satisfactory. Medication was prescribed.
63. By a letter of 20 August 2004 the Head of the Criminal Corrections Department replied to the counsel's complaint of 12 August 2004, stating that the applicant had more than once received treatment in various facilities and that he was currently serving his sentence at Kosh correctional facility where his state of health was found to be satisfactory.
64. On 29 December 2006 the Aragatsotn Regional Court (Արագածոտն մարզի առաջին ատյանի դատարան) dismissed the applicant's request to be released on parole, finding that he was not entitled under the law to lodge such a request directly with the courts without the prior approval by the parole board.
65. On an unspecified date the applicant lodged an appeal.
66. On 14 March 2007 the Criminal and Military Court of Appeal reviewed the decision of the Regional Court and decided to examine and grant the applicant's request for release in view of his good behaviour.
67. This decision, though subject to appeal on points of law, was immediately enforceable, so the applicant was released from prison.
68. On 1 June 2007 the Court of Cassation quashed the decision of the Court of Appeal upon the prosecutor's appeal and decided to terminate the proceedings on the same ground as the Regional Court.
69. The applicant was taken back to prison.
70. On 20 January 2009 the applicant died in prison from a heart attack.
71. According to Section 13, a detainee has the right, inter alia, to healthcare, including to receive sufficient food and urgent medical assistance.
72. According to Section 21, the administration of a detention facility shall ensure the sanitary, hygienic and anti-epidemic conditions necessary for the preservation of health of detainees. At least one general practitioner shall work at the detention facility. A detainee in need of specialised medical assistance must be transferred to a specialised or civilian medical institution.
73. According to Article 18, the suspect or the accused shall be considered innocent until his guilt is proved by a final court verdict in accordance with the procedure prescribed by this Code.
74. According to Article 23 § 3, the court does not side with the prosecution or the defence and acts only in the interests of the law.
75. According to Article 65 § 2 (12), the accused has the right to file motions.
76. According to Article 102 § 2, motions and requests must be examined and ruled upon immediately after being filed.
77. According to Article 271 § 1, a list of persons subject to be called to court shall be annexed to the indictment. The investigator must indicate in the list the location of these persons and the pages of the case file which contain their statements or conclusions.
78. According to Article 277 § 1, the prosecutor, by approving the indictment, shall transmit the case to the competent court.
79. According to Article 292, the judge who has taken over the criminal case shall study the materials of the case and within fifteen days after taking over the case shall adopt, inter alia, a decision to set the case down for trial.
80. According to Article 293 § 2, the decision to set the case down for trial must contain, inter alia, the list of persons subject to be called to court.
81. According to Article 331 §§ 1 and 2, in the preparatory stage of the trial, the presiding judge shall inquire whether the prosecution and the defence want to file motions seeking to obtain new evidence and to include it in the case file. The court must examine each motion filed and hear the parties. The court shall grant the motion, if the circumstances which it seeks to disclose may be significant for the case. A decision refusing a motion must be reasoned.
82. According to Article 391 § 5, the parties are entitled to file motions in the court of appeal seeking to call new witnesses.
83. The relevant extracts from the Reports read as follows:
“a. Access to a doctor
... 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ...
35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.
b. Equivalence of care
i) general medicine
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
84. The relevant extracts from the Report read as follows:
“b. health care services in the prisons visited [(four establishments, including Nubarashen Prison)]
i. staff and facilities
106. At Nubarashen Prison, the full-time health care team consisted of 7 doctors (head doctor, internist, surgeon, stomatologist, dermato-venerologist, radiologist, psychiatrist), 5 feldshers, a laboratory assistant, an X-ray technician and a dental technician. Assistance was provided by several prisoner orderlies.
...
At Nubarashen Prison, the presence of a feldsher was ensured on a 24-hour basis. ...
107. As regards the complement in terms of doctors, the situation at Nubarashen ... [Prison] can be considered satisfactory. ...
...
108. The CPT is particularly concerned about the low number of qualified feldshers and the total lack of qualified nurses at the four establishments. Given the size and structure of the respective inmate populations (with rapid inmate turnover at the two pre-trial facilities and noticeable proportions of older prisoners at the two colonies), the CPT recommends that the nursing staff resources (i.e. feldshers and nurses) at the four establishments be increased.
The CPT also wishes to stress that a person competent to provide first aid, preferably with a recognised nursing qualification, should always be present on prison premises, including at night and weekends.
109. In the CPT's view, the employment of inmates as orderlies should be seen as a last resort, and prisoners should under no circumstances be involved in the distribution of medicines. Further, such persons should not be given access to medical files, nor should they be present during medical examinations. The Committee recommends that the position of the prisoners working as orderlies at Nubarashen ... [Prison] (as well as other penal establishments in Armenia) be reviewed, in the light of these considerations.
110. The delegation heard very few complaints about access to the doctor (or, as in Gyumri, to the feldsher). However, at the four prisons, inmates complained about the standard of treatment and care, in particular as regards the range of medication prescribed and the quality of dental care (which appeared to be limited to extractions). At each of the establishments, the transfer of inmates to the Hospital for Prisoners in Yerevan, when required by their state of health, was said to be unproblematic. ...
...
113. The supply of basic medication and related materials was grossly insufficient at each of the establishments. This was hardly surprising, given the very limited budget for acquiring such items. In this regard, the health-care services concerned depended to a considerable extent on donations and inmates' own resources.
Reference has already been made to the State's duty of care vis-à-vis persons deprived of their liberty, even in periods of serious economic difficulties ... The CPT recommends that the Armenian authorities take measures without delay to ensure the supply of appropriate medicines and related materials to the prisons visited and, if necessary, to other penitentiary establishments in Armenia.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71267
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HUSAIN v. ITALY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Kalid Husain, is a Yemeni national who was born in 1936 and is currently detained in Parma Prison. He was represented before the Court by Mr G. Pagano, of the Genoa Bar.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 7 October 1985 the Achille Lauro, an Italian cruise liner, was attacked by a Palestinian terrorist commando. The passengers were held hostage for fifty-one hours and one of them was killed.
Suspected of being one of the organisers of the attack, the applicant was charged with forgery, handling stolen goods, unlawful possession of a firearm, kidnapping, murder and assault. He and fourteen other defendants were committed to stand trial in the Genoa Assize Court.
He was not officially informed of the criminal proceedings against him because the authorities were unable to trace him at the time of the trial. In his observations to the Court, the applicant alleged that he had left the Achille Lauro before the attack by the commando and had stayed in Egypt. The Italian authorities declared him a “fugitive” (latitante) and assigned a lawyer to represent him. He was tried in his absence.
In a judgment of 10 July 1986, the text of which was lodged with the registry on 27 October 1986, the Genoa Assize Court found the applicant guilty of handling stolen goods, forgery and unlawful possession of a firearm. It gave him a prison sentence of seven years and six months and imposed a 3,000,000 Italian lire fine. It acquitted him on the charges of kidnapping, murder and assault. It found, inter alia, that it had not been proved beyond all reasonable doubt that the applicant knew that the commando intended to hijack the vessel and kidnap the passengers.
On 6 December 1986 the Genoa public prosecutor’s office appealed against, inter alia, the applicant’s acquittal on some of the charges. It argued that, as a senior member of the terrorist organisation behind the attack, the applicant’s role could not have been confined to providing logistical support.
In a judgment of 23 May 1987, the text of which was lodged with the registry on 27 July 1987, the Genoa Criminal Court of Appeal granted the appeal and sentenced the applicant to life imprisonment.
On 10 May 1988 the judgment of 23 May 1987 became final as the lawyer assigned to represent the applicant had not lodged an appeal with the Court of Cassation.
On 16 March 1991 the Genoa Principal Public Prosecutor issued a warrant requiring the applicant’s committal to serve his sentence. The document, which was drafted in Italian, stated that the Genoa Criminal Court of Appeal’s judgment of 23 May 1987 sentencing the applicant to life imprisonment was unappealable. It then set out the operative provisions of the judgment and, in particular, the legal classification in law of the offences of which the applicant had been found guilty, with a reference to the relevant provisions of the Criminal Code and special legislation that was applicable. The Principal Public Prosecutor instructed all law-enforcement personnel to arrest the applicant. Since the applicant was not represented, the Principal Public Prosecutor assigned a lawyer to his case. A copy of the committal warrant was served on him.
In the meantime, on 6 March 1991, the applicant had been arrested in Greece. On 24 May 1996 he was extradited to Italy. He was taken to the Genoa police headquarters (questura), where he was served with a copy of the committal warrant of 16 March 1991. An interpreter translated it into Arabic for him orally. The applicant and the interpreter signed a record of the proceedings at the police headquarters.
On 29 October 2001 the applicant lodged an application to have the committal warrant set aside. He alleged that it had been drafted in Italian and that he had not been provided with a written translation into Arabic, in breach of Article 6 § 3 (a) of the Convention, domestic law and the case-law of the Court of Cassation and the Constitutional Court. He stressed that, had he understood the document that had been served on him, he would definitely have taken the necessary steps to lodge an application for leave to appeal out of time under Article 175 of the Code of Criminal Procedure within the statutory ten-day time-limit. He would thereby have gained additional time in which to appeal to the Court of Cassation and an opportunity to answer the charges that had been preferred against him.
The Genoa Criminal Court of Appeal dismissed his application in an order of 4 December 2001. It observed that Article 143 of the Code of Criminal Procedure provided: “A person charged with a criminal offence who does not speak Italian is entitled to have the free assistance of an interpreter in order to understand the charge ... and the procedural steps to which he or she is a party ...” In its judgment no. 10 of 19 January 1993, the Constitutional Court had held that that provision had to be construed broadly, that is to say as applying in all cases in which, without the assistance of an interpreter, a foreign defendant’s right to take part in his or her trial would be compromised. However, the view expressed by the Court of Cassation in its case-law was that neither the Convention nor the Code of Criminal Procedure made it obligatory to provide a written translation of every document that was served on a foreign defendant. In the instant case, the committal warrant had been translated orally by an interpreter when it was served, and that was a sufficient basis for concluding that the applicant had understood its content.
The applicant appealed to the Court of Cassation, arguing that a written translation should have been supplied in his case, added to which the record drawn up at the police headquarters did not indicate the interpreter’s identity. It merely contained the signature of an unidentified person at the foot of the page.
In a judgment of 16 December 2002, which was lodged with the registry on 4 February 2003, the Court of Cassation found that the Criminal Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal.
The relevant passages from Article 175 §§ 2 and 3 of the Code of Criminal Procedure provide:
“A person convicted in absentia ... may apply for leave to appeal out of time against the judgment if he is able to prove that he was not effectively notified [of the judgment] ... [and] on condition that there has been no negligence on his part or, if the judgment delivered in absentia has been served ... on his lawyer ..., that he has not deliberately refused to apprise himself of the steps taken in the proceedings.
An application for leave to appeal out of time must be lodged within ten days of the date ... on which the accused learned [of the judgment], failing which it shall be inadmissible.”


ITEMID: 001-103578
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MISZCZYNSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Franciszek Miszczyński, is a Polish national who was born in 1959 and lives in Świdnica. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
From 16 April 2006 until 25 June 2010 the applicant was detained in Kłodzko Prison. On the latter date he was released.
The applicant submitted that he had been held in inadequate living and sanitary conditions. In particular, all the cells which he had occupied were overcrowded.
From 10 May to 25 July 2006 the applicant was detained in cell no. 225, which measured twenty-two square metres and was shared by ten to fourteen people at a time. The cell was furnished with six bunk beds, four tables and a number of stools. A bathroom with a toilet cubicle and a washbasin were accessible from the cell. There was one window, which was partly covered by a bunk bed.
The applicant did not make any statements as to whether or not he lodged any complaints with the penitentiary authorities regarding the conditions of his detention or any other aspect of his detention in Kłodzko Prison.
He submitted, however, among other documents, Xerox copies of four letters of reply sent by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej) on 20 July and 6 November 2006, and by the Central Board of the Prison Service (Centralny Zarząd Służby Więziennej) on 29 August and 13 October 2006.
The letters in question have typewritten headings and text. In the space reserved for the name of the addressee and the address the words: “Kłodzko Prison” (Zakład Karny w Kłodzku) or “Prison, Boh. Getta Street no. 16, 570300 Kłodzko (Zakład Karny ul. Boh. Getta 16, 57-300 Kłodzko) are typed in bold letters. The name of the addressee in these letters has been erased and two of the letters in question have an empty space directly above the address. In the remaining two letters, however, the applicant’s own name has been handwritten in the empty space.
The letters in question contain replies of the relevant penitentiary authorities to complaints about irregularities in treating correspondence, which had been made by a prisoner detained in Kłodzko Prison.
Moreover, the applicant brought a civil action under Article 417 of the Civil Code. He sought compensation on account of overcrowding and resulting from it, inadequate living and sanitary conditions in Kłodzko Prison.
On 9 February 2007 the Kłodzko District Court (Sąd Rejonowy) dismissed the applicant’s claim for compensation. The applicant failed to lodge an appeal in compliance with procedural requirements. On 26 June 2007 the Kłodzko District Court rejected his application for leave to lodge an appeal out of time.