ITEMID: 001-84815
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MEHMET REŞİT ARSLAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele
TEXT: 4. The applicant was born in 1966 and was serving a prison sentence in Diyarbakır prison at the time of his application to the Court.
5. On 4 April 1993 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation the PKK (the Kurdistan Workers' Party). According to the arrest report, the applicant resisted the arrest and the police officers had to use force to apprehend him.
6. On 19 April 1993 the applicant was brought before the investigating judge at the Istanbul State Security Court, where he denied the allegations against him. The judge ordered the applicant's detention on remand.
7. On 29 April 1993 the applicant was examined by a doctor at the Sağmalcılar State Hospital who noted that there was a restriction in the functioning of the right shoulder and elbow.
8. On 4 May 1993 a doctor from the Eyüp Forensic Medicine Institute drew up a report, according to which there were numerous ecchymoses and lesions on the various parts of the applicant's body and there was a reduced functioning of the right arm.
9. In a further report dated 9 July 1993, it was concluded that the injuries on the applicant's body rendered him unfit for work for ten days.
10. On 5 May 1993 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, along with twentyseven other persons, charging him with membership of an illegal organisation under Article 168 § 1 of the Criminal Code.
11. On 12 July 1993 the applicant maintained before the Istanbul State Security Court that his statements had been taken under torture while in police custody. At the end of the hearing, the court concluded that the applicant's representative could file a complaint with the authorities about the applicant's allegations of ill-treatment.
12. On 22 January 1997 the public prosecutor proposed to alter the charge against the applicant to treason against the integrity of the State, a capital offence under Article 125 of the Criminal Code.
13. Between 12 July 1993 and 6 March 2000 the first-instance court held forty-six hearings. The applicant did not attend twenty-eight of them.
14. On 6 March 2000 the applicant submitted his final defence submissions to the court. In his petition, the applicant denied the charges against him. Repeating his allegations of torture, the applicant maintained that he had been hung from his arms during his police custody.
15. On the same day, the Istanbul State Security Court found the applicant guilty as charged and sentenced him to the death penalty under Article 125 of the Criminal Code. The death penalty was commuted to a life sentence. In its judgment, the first-instance court did not list the applicant's statements taken by the police as evidence, having regard to the doctors' reports. It nevertheless convicted the applicant holding that other evidence corroborated his statements to the police.
16. The applicant appealed. In his petition, he maintained that the judgment of the first-instance court was based on his police statements which had been taken under torture.
17. On 21 March 2001 the Court of Cassation upheld the judgment of 6 March 2000.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79570
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF WIESER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant was born in 1958 and lives in Dornbirn.
7. Upon criminal information laid by the applicant's wife, the Feldkirch Regional Court, on 9 February 1998, issued an arrest warrant against the applicant and a search warrant of his house. The applicant was suspected of having bodily assaulted and raped his wife, of having threatened her with a firearm, of having sexually assaulted his minor stepdaughter and of being in possession of child pornographic videos. The arrest warrant pointed out that there were reasons to assume that the applicant would react with “massive resistance” upon his arrest and would “try to escape prosecution”.
8. On 9 February 1998 at around 23.45 hours six police officers of the special task force (Sondereinsatzgruppe) of the Altach gendarmerie entered the applicant's house. The officers were equipped with bullet-proof vests and shields. Further, they wore masks.
9. The applicant submits that before the police entered his house, he had observed two suspicious persons, namely two of the officers, lingering around his parking. He had, therefore, armed himself with a kitchen knife However, when the police entered his house he immediately dropped the knife and held his hands up.
10. The police officers forced the applicant to the ground and handcuffed him.
11. The applicant submits that he had recognised the police officers on their emblems and had declared at once that he would not do anything and collaborate with the police. An officer allegedly replied to him that he would better do so otherwise he would be “picked off”.
12. The applicant was subsequently laid on a table where he was stripped naked, searched for arms and dressed again. According to the applicant he was blindfolded during this time. Upon the shock of his arrest the applicant had urinated in his clothes. The police officers, despite the applicant's repeated requests, refused to let him change his clothes.
13. The applicant submits that he was then again forced to the ground where he remained for about 15 minutes while some of the police officers searched his house. According to the applicant he was lying face down while a police officer pressed his knee on the back of his neck. This police officer allegedly told the applicant: “Don't move, otherwise you are dead.” He further submits that it was only when he was lifted up that, without giving any further reasons, he was told that he was arrested.
14. The applicant was subsequently taken to the Altach police station where he was questioned until about 3.40 a.m. when he was released and taken back to his house.
15. During all of the time of his arrest and detention the applicant remained handcuffed. Upon his request, however, the handcuffs were covered with a garment when leaving the house and were later attached in his front instead behind his back.
16. On 10 February 1998 the applicant was again heard by the gendarmerie. On 11 February 1998 he prepared a note for the file in which he described the events at issue. He made, however, no reference to the fact that he had been blindfolded while stripped.
17. The criminal proceedings against the applicant were discontinued on 25 June 1998.
18. Meanwhile, on 3 March 1998, the applicant complained to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungs-senat) that the treatment he had suffered during his arrest and at the police station amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. He referred to his stripping by the police officers, the forcing to the ground while an officer pressed his knee against the back of his neck, the threats by the officers and the refusal to let him change his wet clothes. He finally complained that his handcuffing had not been necessary as he had been cooperative and had not shown any sign of resistance during all of the time.
19. The Independent Administrative Panel held two hearings on 8 and 28 July 1998. It questioned the applicant, the director of the Vorarlberg Public Security Authority (Sicherheitsdirektor), the police officer who had headed the mission, another police officer who had assisted the applicant's arrest and the police officer who had questioned the applicant at the Altach police station. The police officers submitted that the applicant's wife had informed them that the applicant was violent, regularly consumed alcohol, was in possession of a fire-arm and had attended training for hand-to-hand combat for several years. He had allegedly received his wife several times with a weapon in his hand when she was entering the house. The applicant's wife had warned the police that the applicant “was up to do anything”.
20. The two officers who had participated in the applicant's arrest confirmed that the applicant had been strip-searched. One officer explained that this had been done for their and the applicant's safety and in order to find the weapon. The applicant had been informed about the arrest and search warrant before being undressed. After the strip search the applicant had been seated on a sofa. The other officer stated that after the strip search the applicant had been laid and held on the floor. He denied, however, that somebody had approached the applicant's neck with his knee. Both officers confirmed that the applicant had not shown any sign of resistance and denied that the applicant had been threatened to “be picked off”. The officer who had heard the applicant at the police station submitted that he had not lessened the applicant's handcuffs because during some of the time he had been alone with the applicant at the police station.
21. On 6 November 1998 the Independent Administrative Panel rejected the applicant's complaints. It found that the police officers had acted on the basis of an arrest warrant and had not exceeded the instructions of the investigating judge. The handcuffing of the applicant had been a necessary accompanying measure to the applicant's arrest because of the applicant's assumed resistance and escape. Against this background also the stripping of the applicant could not be regarded as excessive, especially as the applicant was suspected to be in the possession of weapons. The applicant's further complaints about the threatening, the holding down by pressing a knee against the back of his neck and the refusal to let him change his wet clothes were, even assuming that the applicant's allegations were true, of no relevance for the proceedings at issue as they concerned merely the way of proceeding during an authorised arrest and were attributable to the court. A review of lawfulness did not fall within the Independent Administrative Panel's competence.
22. On 22 February 1999 the Constitutional Court declined to deal with the applicant's complaint.
23. The applicant filed a complaint with the Administrative Court in which he repeated his submissions made before the Independent Administrative Panel. He further complained about the fact that the intervening officers had been masked.
24. On 21 December 2000 the Administrative Court partly granted the applicant's complaint. It quashed the Independent Administrative Panel's decision insofar as the refusal of the police officers to let the applicant change his clothes was concerned and remitted the case back to the Panel for further examination.
25. The Administrative Court dismissed the remainder of the applicant's complaint. It noted that the police officers had been confronted with a person suspected of severe crimes who was allegedly in possession of a firearm and was trained in hand-to-hand combat and who, furthermore, was holding a knife when meeting them. The handcuffing and complete stripping of the applicant and the alleged fixation and threatening by the police officers did not, therefore, exceed the instructions of the investigating judge. The court did not consider the applicant's detention for some four hours and his handcuffing during this period of time as excessive either. It noted in the latter regard that, despite the applicant's calm and cooperative behaviour, there was reason to believe that the applicant once liberated from his handcuffs would try to escape or use force. The Administrative Court finally noted that the applicant had not raised the complaint that the officers had been masked before the Independent Administrative Panel. This complaint was, however, inadmissible in any way as it did not concern an act of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt).
26. On 3 May 2001 the Vorarlberg Independent Administrative Panel found that the police officers' refusal to let the applicant change his wet clothes had not been covered by the instructions of the investigating judge who had ordered the applicant's arrest and constituted inhuman or degrading treatment in breach of Article 3 of the Convention. The applicant subsequently received compensation in the amount of approximately 2,400 euros.
27. Sections 139 to 149 of the Code of Criminal Procedure (Strafprozeß-ordnung) concern the search of premises and persons and the seizure of objects.
28. Section 139 § 2 stipulates that a search of a person and his clothes is inter alia admissible when this person is suspected of a crime.
29. According to section 140 §§ 1 and 2, a search should in general only be carried out after the person concerned has been heard, and only if the person or objects searched are not voluntarily rendered and if the reasons leading to the search have not been eliminated. It is not required to hear persons of bad reputation, or to have such a hearing where there is danger in delay.
30. Section 140 § 3 states, as a rule, that a search may only be carried out on the basis of a reasoned search warrant issued by a judge.
31. Section 142 § 1 stipulates that when searches of premises and persons are carried out any disturbance and harassment of the person concerned which is not strictly necessary has to be avoided. Searches have to be carried out in respect of the rules of decency.
By virtue of section 67a § 1 of the General Administrative Procedure Act (Allgemeines Verwaltungs-verfahrensgesetz), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from act of direct administrative compulsion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt). According to relevant jurisprudence and doctrine acts of administrative organs which are based on a court order are not attributable to the administrative authorities, but to the courts. Such an act is, however, attributable to the administrative authorities when the judicial order has been manifestly exceeded.
VIOLATED_ARTICLES: 3


ITEMID: 001-85707
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KRIZANOVA AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicants, Ms Dagmar Křižanová, Jiří Křižan and Jan Křižan, are Czech nationals who were born in 1919, 1941 and 1940 respectively, and live in Branky and Ontario (Canada) respectively. They were represented before the Court by Mr P. Ondra, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 March 1992 the applicants brought proceedings for the restitution of their property which had been nationalised by the former communist regime.
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-5095
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: S.P. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen, born in 1962 and resident in Tunbridge Wells. He is represented before the Court by Ms Kate Akester of Justice, in London.
A.
The applicant had an extremely difficult childhood. His father disappeared two weeks after his birth, while his stepfather was violent to the applicant’s mother and the children of the family. He and his brother were sent by the local authority to a boarding school to remove them from this disturbed environment.
The applicant was involved in offences of dishonesty. Following convictions for burglary and obtaining property by deception, he was placed under a supervision order in 1976. At this time, he came under the influence of R.D., a disturbed and violent boy of a similar age. It seems that R.D. decided that they should rob his grandmother. R.D. attempted to suffocate his grandmother with a cushion and when this was unsuccessful ordered the applicant to fetch an axe. The applicant admitted that he brought the axe but denied that he participated in the actual violence.
The applicant was arrested for murder on 9 March 1977. He was unable to communicate satisfactorily with his lawyers. He accepted their advice and pleaded guilty to manslaughter (diminished responsibility) on 7 July 1977. His case was adjourned for reports relevant to sentencing. On 29 July 1977 he was sentenced to detention for life under section 53 (2) of the Children and Young Persons Act 1933.
Meanwhile, R.D. was diagnosed as mentally ill. A restriction order was made under sections 60 and 65 of the Mental Health Act 1959. He was sent to Broadmoor Special Hospital.
The applicant was detained in St Charles’ Youth Treatment Centre until 1982. He was then released on licence and has been living in the community ever since.
Since his release, the applicant has not been arrested or come adversely to the attention of the authorities, save for an incident in 1996 when he broke down the door to his rented flat when he had locked himself out. He has been employed, generally in temporary positions in the catering trade, and has been prevented from working for some periods due to problems with his eyes necessitating surgery.
According to the conditions of his licence, the applicant has been required to see his probation officer once a month, and is subject to the approval of that officer as regards where he lives, the employment which he takes up and whether he can leave the country. His request for this supervision to be terminated by the Home Office was refused on 29 August 1997, despite his probation officer’s opinion that the requirement is unnecessary and counter-rehabilitative.
In or about the beginning of 1999, the applicant became aware that the Home Office issued new guidelines requiring more intensive supervision. He believes that this involves a requirement that his probation officer inform his employer, his benefit agency and the police about the applicant’s status on licence. He believes that the probation officer is also supposed to liaise directly with his sister, as next-of-kin.
On 1 April 1999, the applicant’s representative wrote to the Kent Probation Service, protesting the new guidelines (a copy of which had not been provided though requested), in particular submitting that the requirement for the Probation Officer to liaise with his sister was an unwarranted intrusion in his private life.
On 30 April 1999, the Kent Probation Service replied that they were forwarding the applicant’s letter to the Lifer Review Unit as it raised a number of important issues. The applicant’s probation officer informed him that no action would be taken in his case in relation to the new procedures until the authorities have come to a decision.
B. Relevant domestic law and practice
Detention for life
Section 53(2)-(3) of the Children and Young Persons Act 1933 provides that children between the ages of 10 and 17, where convicted on indictment of, inter alia, any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult.
Release on licence and revocation of licences
Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a "tariff" set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991 Act).
Where the sentence is not fixed by law (ie. a discretionary life sentence), the 1991 Act provides in section 34 that where a prisoner has served the tariff period and the Parole Board directs his release, the Secretary of State has the duty to release the prisoner on licence. For a life prisoner, the licence is in existence for the rest of his or her life (section 37(3)).
Pursuant to section 39 of the 1991 Act, the Secretary of State can authorise immediate recall if it appears to him that it is in the public interest to recall that person before such a recommendation can be obtained from the Parole Board.

The index for determining whether re-detention is justified is that of dangerousness, meaning a consideration of whether the offender constitutes an unacceptable risk of physical danger to the life or limb of the public (see R v. Secretary of State for the Home Department, ex. parte Prem Singh, unreported, transcript pp. 26F-27B, and the Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, at § 39).
On recall, an offender is entitled to a review before the Parole Board in the form of an oral hearing at which the prisoners are entitled to legal representation and there is provision for the examination and cross-examination of witnesses. Prisoners will also normally receive full disclosure of all material relevant to the question of whether they should be released prior to the hearing (see Parole Board Rules 1992). The Parole Board has the power to direct release.


ITEMID: 001-91744
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF LEBEDINTSEVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1949 and lives in the city of Kharkiv, Ukraine.
5. On 21 February 2001 the Snizhne Court awarded the applicant 23,536.80 Ukrainian hryvnyas (UAH) against the State-owned Udarnik mine in compensation for her husband’s death as a result of a work-related accident. Subsequently, the mine was reorganised into the Snizhneantratsyt State Company.
6. The judgment was not appealed against, became final, and enforcement proceedings were instituted to collect the debt.
7. Between February 2002 and December 2003 the applicant was paid UAH 11,135.
8. On 18 January 2008 the applicant received the rest of the judgment debt.
9. The applicant attempted to collect compensation from the debtor company for the delay in enforcement, by way of judicial proceedings; however her efforts were to no avail.
10. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine, no. 67534/01, §§ 16-19, 27 July 2004, and Voytenko v. Ukraine, no. 18966/02, §§ 20-25, 29 June 2004.
VIOLATED_ARTICLES: 6