ITEMID: 001-77692
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KHUDOBIN v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed;Violation of Art. 3 in respect of inadequate medical treatment in the detention facility;Not necessary to examine the other complaints under Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 7. The applicant was born in 1979 and lives in Moscow.
8. On 29 October 1998 Ms T., an undercover police agent, called the applicant and said that she wished to buy a dose of heroin. The applicant agreed to procure it and, accompanied by Mr M., met Ms T. in the street. Ms T. handed the applicant banknotes, given to her by police officers S. and R. and marked with a special substance (which was visible only under ultra-violet light). The applicant took the money and went to the house of another person, Mr G. The latter gave the applicant a sachet containing 0.05 grams of heroin. On his return to the meeting place with the purported buyer, the applicant was apprehended by the police officers, who had waited for him in the street.
9. The applicant was brought to the local police station where his fingers were examined under ultraviolet light: they bore traces of the substance used by the police to mark the banknotes. Ms T., in the presence of two attesting witnesses, handed the sachet to the police officers, explaining that she had received it from the applicant. The sachet was placed in a container, which was sealed, signed by the attesting witnesses and sent for forensic examination. The applicant was placed overnight in the police station’s detention facility.
10. On 30 October 1998 a criminal case was opened and the applicant was charged with drug trafficking. On the same day the prosecutor of the North-Eastern District of Moscow, referring to the circumstances of the applicant’s apprehension, the gravity of the charges against him and the risk of absconding, ordered that he be placed in detention on remand. The applicant was transferred to pre-trial detention facility no. 48/1, Moscow.
11. The pre-trial investigation was completed and on 24 December 1998 the case file with the bill of indictment was referred to the Moscow Butyrskiy District Court for trial. On 29 December 1998 an application for release, pending before the Preobrazhenskiy District Court, was forwarded to the Butyrskiy District Court on the ground that the bill of indictment had been transferred to that court and that it should therefore deal with all aspects of the applicant’s case. The applicant’s lawyer appealed against this decision, but on 3 February 1999 the Moscow City Court dismissed the appeal.
12. At a preparatory hearing on 13 January 1999 the court ruled that the applicant should remain in custody pending trial, without giving any reasons for that decision.
13. On 18 February 1999 the applicant’s father filed a fresh application for release with a court, claiming that the applicant’s very poor state of health was incompatible with his detention conditions and, in particular, with the level of medical assistance available in the pre-trial detention centre.
14. On 17 March 1999 the court extended the applicant’s detention pending trial. No reasons for that decision were adduced.
15. On 21 April 1999 the applicant’s father filed a new application for release with the district court, referring again to his son’s health problems. According to the applicant’s submissions, the defence repeated this request on 26 and 27 July 1999. The Government claimed that the motion dated 27 July 1999 was received by the court only on 2 August 1999.
16. On 27 July 1999 the court decided that a fresh examination of the applicant’s mental health was required. It adjourned the case and decided that the applicant should remain in prison in the meantime. No reasons were given for that decision.
17. On 30 July 1999 the applicant’s lawyer appealed against the trial court’s ruling of 27 July 1999. He challenged the trial court’s decisions to adjourn the case and to order a fresh examination of the applicant’s mental health, which had the effect of prolonging the applicant’s detention in the difficult conditions of the detention facility. He made the following request:
“Under Article 331 of the Code of Criminal Procedure, I [hereby] request the [Moscow City] Court to quash the decision of the Butyrskiy District Court concerning adjournment of the case against V.V. Khudobin, the appointment of an additional psychiatric examination [of the applicant] and the refusal [to grant] his application for release.”
The appeal was addressed to the Moscow City Court and, as required by domestic law, was sent through the registry of the trial court. The registry received the appeal on 4 August 1999. However, it appears that it was never forwarded to the appellate court for examination.
18. On 17 August 1999 the applicant’s legal representatives filed a similar appeal, which was received by the registry on the following day. On 1 September 1999 the applicant’s lawyer sent a letter to the trial court in which he sought an explanation as to what had happened to his appeal of 30 July 1999. He received no reply to this letter.
19. On 15 September 1999 the applicant’s parents complained to a deputy president of the Moscow City Court and to the Supreme Court of the Russian Federation about the applicant’s continued detention. The materials of the case file do not contain any reply to these appeals.
20. On 17 September 1999 the applicant’s representative requested the trial court to release the applicant. The defence again referred to the deterioration in the applicant’s health and, in particular, to the repetitive pneumonias the applicant had contracted in the previous three months.
21. The applicant remained in detention until 11 November 1999, when the court discontinued the criminal proceedings (see below) and released him.
22. Since 1995-1997 the applicant has suffered from many chronic diseases, such as epilepsy, pancreatitis, chronic viral hepatitis B and C and various mental deficiencies. The doctors who examined the applicant in 1995 recommended out-patient psychiatric supervision and treatment by anticonvulsants. It appears that by the time of his arrest in October 1998 the applicant had a certain history of drug use, including intravenous heroin use.
23. Immediately after his transfer to the detention centre on 30 October 1998 the applicant was subjected to a comprehensive medical examination, including an HIV test, a drug test and psychiatric examination. The drug test revealed that the applicant was intoxicated with morphine. A panel of psychiatrists confirmed the previous diagnoses but found him legally capable of being held accountable for the alleged offences. On 10 November 1998 the first results of the applicant’s blood test were received. According to the report by the forensic laboratory, the applicant was HIV-positive.
24. On 30 November 1998 a psychiatrist re-examined the applicant and found him to be capable of being held legally accountable. On an unspecified date in December 1998 the facility administration received the applicant’s medical records for the period prior to his arrest, in which the necessary treatment was indicated. In particular, the applicant was prescribed anticonvulsants (финлепсин, конвулекс) and anti-hepatitis therapy (рибоксин, парсил).
25. On 23 December 1998 the applicant underwent a new medical examination, which confirmed the previous diagnoses and stated that the applicant “was able to participate in the trial and take part in investigative actions”.
26. While in detention, the applicant suffered from acute pneumonia, epileptic seizures, bronchitis, hepatitis, pancreatitis, and other serious diseases. Owing to his ailments the applicant was on many occasions placed in the unit for contagious patients in the pre-trial detention centre’s hospital. As reported by the detention facility’s administration, the applicant was in the centre’s hospital from 24 December 1998 to 22 March 1999, from 20 April to 18 May 1999, from 19 July to 12 August 1999 and from 17 to 28 September 1999.
27. On many occasions the defence informed the court, the administration of the detention facility and other State authorities about the applicant’s serious health problems. Thus, on 18 January 1999 the defence requested a thorough medical examination of the applicant. On 22 January 1999 the applicant’s father asked the facility administration to order a fresh examination of the applicant by an independent doctor, hired by the defence. However, the facility administration refused this request.
28. During the trial the applicant underwent three psychiatric examinations. On 15 June 1999 the doctors concluded that the applicant had been legally insane when committing the incriminated acts. The report stated, in particular, that the applicant “suffered from a chronic mental disease in the form of epilepsy with polymorphous seizures and comparable psychic problems and with evident psychic modifications, with a tendency to drug use”. The report of 19 October 1999 confirmed that the applicant was legally insane and needed compulsory treatment.
29. At about 10.40 p.m. on 26 April 1999 the applicant had an epileptic seizure. As follows from a written statement signed by his cell-mates, they had to unclench the applicant’s teeth with a wooden spoon in order to prevent him from suffocating. The paramedic on duty then arrived and gave the applicant’s cell-mates a syringe containing an unknown substance, which they injected in the applicant’s buttocks. The applicant’s father complained about this fact to the facility administration, which replied that the applicant had received medical aid “in the room for medical procedures”.
30. In May 1999 the applicant contracted measles and pneumonia. On 26 June 1999 he had another epileptic seizure. He was transferred to the detention centre’s psychiatric facility, where he remained for some time under out-patient supervision and received anticonvulsants. In his letter of 2 August 1999 to the Ombudsman, the applicant’s father indicated that on 6 July 1999 the applicant had had another epileptic seizure but had received no medical assistance.
31. On 15 July 1999 the applicant fell ill with bronchopneumonia. According to the applicant’s father, facility doctors began treatment only ten days after the symptoms had appeared.
32. On 17 July 1999 the applicant was administered a blood test in the facility hospital against his will. His father complained to the facility administration. The administration replied, by letter of 16 August 1999, that the blood sample had been taken using a disposable needle.
33. On 21 July 1999 the applicant’s father complained to the Ministry of Justice about his son’s conditions of detention and the lack of appropriate medical treatment. On 27 July 1999 he filed a similar complaint to the Butyrskiy District Court, also seeking the applicant’s release. According to the applicant’s father, the applicant was repeatedly transferred from one cell to another, in spite of a high temperature (40 C˚) and fever, and did not receive adequate treatment for pneumonia. He spent three days in a cell with purulent patients and slept on the floor on account of a shortage of sleeping places. The facility doctors did not establish the applicant’s immunological and biochemical status, or the possible causes of his persistent fever. The applicant’s father wanted to deliver a multi-vitamin medicine to him but the facility administration refused to accept it.
34. The court dismissed the application for release. On the same day, on a motion by the prosecutor, the court ordered a new expert examination of the applicant’s mental health on the ground that the previous one, while recognising the applicant as legally insane, did not specify whether his state of mental health required compulsory medical treatment.
35. In August 1999 the applicant’s mother complained to the Ministry of Justice about the applicant’s conditions of detention and, specifically, about the lack of adequate medical assistance.
36. According to the Government, from 20 April to 18 May 1999 the applicant underwent in-patient medical treatment in the detention facility’s hospital. He was supervised by a “doctor in charge” and received “total restorative treatment and vitamin therapy”. Cell no. 735, where the applicant was detained, was equipped with six berths, a lavatory, hot and cold water taps and ventilation. The applicant was provided with bedding, tin ware, meals three times a day and items for personal hygiene. The number of detainees never exceeded the number of berths.
37. The Government confirmed that on 26 April 1999, at about 10:40 p.m., the applicant had had a seizure. Immediately thereafter he was examined by a doctor, who took the applicant’s pulse, sounded his heart, measured his blood pressure, palpated the abdomen and administered an intramuscular shot of aminazine. On the following day the applicant underwent further medical examination.
38. The applicant was discharged from hospital in a satisfactory state of health. On 26 June 1999 the applicant was placed in cell no. 353, in the prison hospital’s psychiatric department. He was supervised by a doctor and received “preventive medical assistance”. This cell was also properly equipped and was not overcrowded.
39. According to a certificate dated 23 April 2004 from the deputy head of the medical department, the applicant had no epileptic seizures during his stay in the psychiatric department of the prison hospital. In the psychiatric hospital anticonvulsant treatment was administered.
40. The Government produced copies of three medical certificates, dated 29 January, 25 February and 27 April 1999. They contained the following relevant entries.
41. The first certificate stated that the applicant was HIV-positive, suffered from epilepsy and had had one epileptic seizure during his stay in the facility hospital. His state of health was assessed as “satisfactory”. Any additional medical examinations were to be ordered by the investigative authorities.
42. The second certificate of 25 February 1999 stated that the applicant was HIV-positive and was suffering from chronic hepatitis B and C and from epilepsy. Further, there was no record of any epileptic seizure from 30 to 31 October 1998. On 18 February 1999 the applicant consulted a psychiatrist and a neurologist. He was discharged from hospital at the prosecuting authorities’ request in a “satisfactory” condition, which did not prevent him from participating in the proceedings.
43. The third certificate of 27 April 1999 indicated that the applicant was HIV-positive and was suffering from measles and epilepsy. It further stated that “at the present moment the [applicant’s] state of health is relatively satisfactory” and that the applicant would be fit to participate in the proceedings in May 1999.
44. The Government also produced a collection of documents which appeared to be extracts from the applicant’s medical record. Most pages were illegible. The legible pages listed the applicant’s diagnoses but contained no information about the nature of treatment administered to the applicant in the detention facility’s hospital.
45. On 30 December 1998 the Butyrskiy District Court received the case-file from the prosecutor. The first preparatory hearing took place on 13 January 1999. In the following months the court held several hearings where various procedural matters were decided upon. Thus, on 17 March 1999 the court commissioned a fresh expert examination of the applicant’s mental health and adjourned the case. The expert report was ready by 15 June 1999; it found that the applicant was insane but did not contain any recommendations as to possible compulsory medical treatment. On 27 July 1999 the court commissioned another psychiatric examination of the applicant and adjourned the examination of the case.
46. The first hearing on the merits took place on 11 November 1999 in the presence of the applicant’s lawyer. The applicant was not present. At the lawyer’s request, the court admitted several persons to participate in the proceedings as the applicant’s representatives, including Ms Kostromina. They were given thirty minutes to read the case file. The applicant’s lawyer asked for an adjournment because several witnesses, including G., who had sold heroin to the applicant, and S. and R., the policemen involved in the operation, had failed to appear. However, the court decided to proceed.
47. The defence team’s arguments before the trial court can be summarised as follows. The defence contended that applicant had been incited to commit an offence by Ms T., acting on behalf of the police. According to the defence, Russian law prohibited any form of incitement or provocation; only if a specific crime was being prepared could an undercover operation be carried out. In the present case, however, the police had no proof of the applicant’s involvement in drug trafficking when planning the “test buy”.
48. They further stressed that the applicant’s confession had been given in a state of drug intoxication and without legal advice. Finally, the defence challenged the credibility of the forensic examination report which identified the substance confiscated and allegedly sold by the applicant to Ms T. as heroin. They referred to a declaration signed by the applicant on 15 October 1999, stating that the confession had been extracted from him by force.
49. At the hearing on 11 November 1999 Ms T. gave evidence against the applicant. She testified that she had helped the police voluntarily. She explained that she had handed the applicant over to the police “out of kindness in a manner of speaking” (так сказать, по доброте душевной) [sic]. She also stated as follows: “At that time I did not know where to get heroin, so I called [the applicant] because in the past he had already procured it for me”.
50. The court also heard Mr M., who was with the applicant at the moment of his arrest and who confirmed, in principle, Ms T.’s account of the facts. However, he said that before the events at issue he had procured drugs for himself from another source. Finally, the court interviewed the applicant’s mother, who described her son’s character. She testified that she did not know when her son had started to take drugs.
51. The District Court examined the documents, exhibits and expert reports contained in the case file. In particular, it examined the police report describing the “test buy” and the findings of the psychiatric examination.
52. On the same day the Butyrskiy District Court found the applicant guilty of selling heroin to Ms T. on 28 October 1998. It also ruled, referring to the psychiatric report of 19 October 1999, that the applicant had committed the crime in a state of insanity and could not therefore be held criminally accountable. The court discontinued the criminal proceedings and ordered compulsory medical treatment of the applicant at his home. The applicant was released from custody.
53. The applicant’s representative appealed, claiming that the applicant was not guilty and maintaining, inter alia, that the police had fabricated the crime. In particular, there was no reliable evidence that the applicant had already been suspected by the police of being a drug-dealer at the moment of his arrest. Moreover, the applicant had derived no financial benefit from the transaction as he had given Mr G. all the money that he had received from T. for the sachet. Furthermore, the court failed to interview several key witnesses, including the two police officers who had arrested the applicant, two eye-witnesses to his arrest and Mr G., who had sold the substance to the applicant. Finally, the applicant’s representatives claimed that the confession had been extracted from the applicant by force.
54. On 11 January 2000 the Moscow City Court dismissed the appeal. The applicant was absent but his lawyer and representatives took part in the appeal proceedings.
55. On 12 April 2004 the Butyrskiy District Court of Moscow, on a motion by psychoneurotic hospital no. 19, Moscow, ordered that the applicant’s compulsory medical treatment be discontinued.
56. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
... 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.”
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.”
57. Article 228 § 1 of the Criminal Code punishes the unlawful procurement of drugs without an intent to supply. Article 228 § 4 punishes the unlawful supply of drugs in large quantities.
58. Pursuant to Article 21 (“Insanity”) of the Criminal Code, a person who was insane at the time of committing a socially dangerous act as a result of chronic or temporary mental derangement, mental deficiency or any other mental condition shall not be subject to criminal liability. In such cases the court, by an interim decision (определение), discontinues the proceedings and discharges the defendant from criminal liability or penalty, and may order that the defendant undergo compulsory medical treatment (Article 410 of the Code of Criminal Procedure). However, if the court finds that there is insufficient indication of the defendant’s guilt, the proceedings should be discontinued on that ground. The court may in this case still prescribe compulsory medical treatment.
59. Article 6 of the Operational Search Activities Act of 5 July 1995, with further amendments, lists a number of intrusive techniques which may be used by law enforcement or security authorities for the purpose of investigating crimes. Under Article 6 § 1 (4) of the Act, the police may carry out a “test buy” (проверочная закупка) of prohibited goods (such as drugs).
60. According to Article 7 § 2-1 of the Act, in order to initiate a “test buy” the police should have certain preliminary information that a crime is being planned or that it has been already committed. A test buy is initiated by a written order from the head of the relevant police unit. Judicial control is provided if the “test buy” involves interference with the home, correspondence and other constitutionally protected rights. The formal requirement is completion of a “protocol”, in which the results of the test buy are determined. This “protocol” can be used as evidence in the criminal proceedings. The Act contains other possible situations in which a “test buy” can be carried out (such as where a criminal investigation has been started, where a request for a “test buy” was received from the judicial or prosecution authorities, etc.); however, these are not relevant to the present case.
61. The “old” Code of Criminal Procedure (CCrP, in force until 2002), provided for a number of interim measures warranting the defendant’s appearance at the trial and proper administration of justice. Those “preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail or detention on remand (Article 89 of the old CCrP).
62. Under the old CCrP, a decision ordering detention on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96). When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or re-offend (Article 89 of the old CCrP).
63. Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). Under the old Code the competent authority also had to take into account the gravity of the charge, information on the accused person’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP).
64. The Code distinguished between two types of detention on remand: the first being “during the investigation”, that is while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the judicial investigations”), that is, while the case was before a court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
65. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances”. Extensions are authorised by prosecutors of ascending hierarchical levels, subject to an appeal to the court. No extension of detention “during the investigation” beyond eighteen months is possible (Article 97 of the old CCrP). The period of detention “during the investigation” was calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP).
66. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the judicial proceedings”). Before 14 March 2001 the old CCrP set no time-limit for detention “during the judicial proceedings”. The duration of the trial was not limited in time (although the judge had to start the trial within a certain time after receiving the case file from the prosecution).
67. The detainee or his or her counsel or representative can challenge the detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge is required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The judge can either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1 and -2).
68. An appeal to a higher court lay against the judge’s decision. It has to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine).
69. On receipt of the case file, the judge had to determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial has commenced (Article 223 of the old CCrP). At any time during the trial the court could order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP).
70. An appeal against such a decision lay to the higher court. It had to be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP).
71. Legal representation of a client in court proceedings is usually governed by the rules of commission or agency contracts (Chapters 49 and 52 of the Civil Code of the Russian Federation). In addition, Chapter 50 of the Code provides for the agency of necessity: a person may act in the interests of another in order to prevent damage to the latter’s property, protect or promote his lawful interests, etc. If the actions of a person acting in another’s interest without proper mandate are approved by the beneficiary of such acts, this is regarded as an agency agreement between them (Article 982 of the Civil Code). Consequently, the beneficiary should bear the agent’s reasonable costs (Article 984 of the Civil Code).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-60854
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SALAPA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Georg Ress
TEXT: 9. The applicant was born in 1955. He is currently serving a prison sentence.
10. On 26 February 1996 the Regional Prosecutor remanded the applicant in custody on suspicion of drug trafficking, committed from August until November 1995 in conspiracy with other persons. In the detention order the prosecuting authorities stressed that the testimony given during the investigations by the co-suspects strongly supported the suspicion against the applicant.
11. On 15 March 1996 the Jelenia Góra Regional Court (“the Regional Court”) dismissed the applicant's appeal against the detention order. On 25 March 1996 and on an unknown later date the applicant's requests for release were refused by the Wrocław Regional Prosecutor. On 29 March 1996 the Regional Prosecutor prolonged the applicant's detention until 30 June 1996, invoking the complexity of the case. On 2 and 22 April 1996 the applicant's appeals against these decisions were dismissed by the Appellate Prosecutor. On 16 May 1996 the Regional Court further prolonged the applicant's detention on remand until 31 August 1996. On 5 June 1996 the Wrocław Court of Appeal (“the Court of Appeal”) dismissed the applicant's appeal against this decision.
12. On 19 June 1996 the Regional Prosecutor prolonged the investigations in the case until 30 September 1996.
13. On 24 June 1996 the Regional Prosecutor refused the applicant's new request for release and to have the detention on remand changed for a more lenient preventive measure. On 26 August 1996 the Court of Appeal prolonged the applicant's detention until 30 September 1996.
14. On 25 September 1996 the Wrocław Regional Prosecutor prolonged the investigations until 31 December 1996. On 30 September 1996 the Court of Appeal prolonged the applicant's detention until the same date. On 14 November 1996 the Supreme Court upheld the decision of 30 September 1996, considering, inter alia, that applicable domestic law did not require that the evidence in support of his detention was such as to allow a conviction. It was sufficient that there were strong indications that the applicant had committed the offence in question.
15
16. On 10 February 1997 the Supreme Court upheld the decision of 19 December 1996. On 17 February 1997 it prolonged the applicant's detention until 30 April 1997. On 25 March and 7 April 1997 the Regional Prosecutor refused the applicant's further requests for release. The applicant appealed to the higher prosecutor. On 2 and 22 April 1997 the Appellate Prosecutor upheld these decisions, relying, inter alia, on the findings of the investigations that the applicant had had a leading role in the organisation of a drug trafficking network, and to the fact that the evidence included the applicant's forged passport. This revealed a risk of absconding if the applicant were to be released.
17. On 21 April 1997 the Wrocław Regional Prosecutor closed the investigations. On 24 April 1997 the Wrocław Regional Prosecutor submitted the bill of indictment against the applicant and nine other co-accused to the Regional Court. The indictment contained a list of twenty witnesses to be interviewed and two hundred and twenty-four items of evidence to be presented at the hearing.
18. On 28 May 1997 the Regional Court filed a motion with the Court of Appeal, requesting that the case be taken over for consideration by the Wrocław Regional Court. It was stressed that the Regional Prosecutor and most of the witnesses to be summoned resided in Wrocław. On 4 June 1997 the Court of Appeal dismissed the motion.
19. On 4 September 1997 the Regional Court ordered the Detention Centre in Wrocław to carry out a thorough medical examination of the applicant, including an examination by a neurologist.
20. On 30 October 1997, at the applicant's request, the Regional Court sent the files in the case, which by then numbered twenty-one volumes, to the Wrocław prison to make them available to the applicant. From 3 until 6 November 1997 the applicant was reading the case-file. On 7 November 1997 the applicant requested again to have the access to the case-file in order to be able to study it thoroughly. He was subsequently granted such access on four occasions.
21. The first hearing in the case was held on 17 November 1997. During the hearing the Regional Court dismissed a motion lodged by one of the co-accused to have the case returned to the prosecution to complete the investigations. The hearing was adjourned as one of the co-accused failed to comply with the summons. The court informed the applicant that it would consider his new request for release after conducting a social enquiry at his home. The court fixed dates for next hearings for 22 December 1997 and 5 January 1998. From 2 until 6 December 1997 the case-file was, at the applicant's request, sent to the prison so that the applicant could study it.
22. On 15 December 1997 the court held a hearing at which it refused the applicant's motion for release. Due to the absence of two co-accused the court adjourned the hearing. On 22 December 1997 the same two co-accused again failed to attend the hearing. A warrant of arrest had been issued in respect of one of them, a certain D. M. The defence counsel of another co-accused, I. M., requested that experts be appointed in order to establish her state of mental health after the suicide of her brother some days earlier. The hearing was adjourned until 19 January 1998.
23. On 31 December 1997 the Regional Court requested the Warszawa-Praga District Police to conduct an enquiry at the applicant's home as to his family situation. As the results of the enquiry showed that the situation of the applicant's family was not such as to require that he be released, on 14 January 1998 the court refused his request of 17 November 1997. On 9 and 10 January 1998 the expert reports were submitted to the court, confirming the capacity of I. M. to take part in the hearings before the court.
24. At a hearing held on 19 January 1998 the co-accused D.M. failed to attend. The court did not allow the applicant's request for release and adjourned the hearing.
25. On 10 February 1998 the Supreme Court prolonged the applicant's detention until 31 July 1998. On 20 February and 9 March 1998 the applicant requested to be allowed access to the case-file. On 9 March 1998 during the subsequent hearing the applicant filed a motion that the case-file be remitted to the prosecutor to supplement investigation with regard to the circumstances and conditions in which two of the witnesses had made statements in their cases before the German courts. The applicant also challenged the judges of the panel examining the case and all judges of the Regional Court. He also requested a stay on the proceedings until D. M. was arrested and that the file from Germany be sent to the Regional Court and translated. He also requested his release. During the same hearing the court rejected all the applicant's requests. The applicant immediately filed appeals against these refusals and requested an adjournment of the hearing in order to have the case-file sent to the Court of Appeal for his appeals to be considered. The court refused to do so. The cases of the two absent co-accused were separated from the applicant's case.
26. On 20 March 1998 the applicant again requested that the proceedings be stayed. On 24 March 1998 the Court of Appeal upheld the decision of 9 March 1998 refusing the applicant's motion. On 23 March 1998 the applicant requested to be allowed access to the case-file and filed six new procedural motions with the court. During the next hearing held on 30 March 1998 the applicant filed five other procedural motions, including a new motion to stay the proceedings.
27. At the beginning of April 1998 the applicant challenged the prosecutor conducting his case and requested that another one be appointed. On 6 April 1998 the applicant filed a complaint with the court, alleging inadequate access to the case-file which had not allowed him to prepare his defence properly.
28. On 7 April 1998 the Court of Appeal upheld the refusal to stay the proceedings of 30 March 1998. On 16 April 1998 the Wrocław Regional Prosecutor dismissed the applicant's challenge to the prosecutor, finding that it did not satisfy the applicable legal requirements. On 11 May 1998 the applicant complained to the Regional Court against his allegedly insufficient access to the case-file and requested permission to consult the records of the hearings. On 21, 22, 27, 28 and 29 May 1998 the applicant had access to the case-file in the detention centre.
29. During the hearing held on 1 June 1998 the applicant filed a motion for release and requested that the proceedings be stayed. He also requested that the case against D.M., which had been previously separated from his case, be examined together with his case. He further complained that his procedural rights had not been observed by the court, in particular that he had no proper access to all the volumes of the case-file at the same time and that he had not been given sufficient time for meetings with his defence counsel. His requests and complaints were dismissed by the court.
30. On 17 June 1998 the Appeal Court upheld the refusal to stay the proceedings of 1 June 1998. On 22 June 1998 the hearing was adjourned until 17 August 1998 due to the illness of one of the co-accused I.M.
31. On 30 July 1998 the Supreme Court, at the Regional Court's request of 3 July 1998, decided to prolong the applicant's detention until 31 December 1998. A hearing fixed for 17 August 1998 was adjourned due to the absence of three defendants, and the subsequent hearings were held on 24 August, 14 September, 5 and 19 October 1998. The applicant was again allowed access to the case-file from 28 September until 2 October 1998.
32. During the hearing held on 26 October 1998, the court questioned four witnesses. Two other witnesses failed to appear. The hearing was adjourned until 9 November 1998. During that hearing five witnesses were interviewed and three other witnesses failed to comply with the summons. The hearing was adjourned until for 30 November 1998.
33. On 30 November 1998 four witnesses were interviewed. Seven other witnesses failed to attend the hearing. The court dismissed the applicant's new request for release and decided to admit evidence from the testimony of some police officers, concerning the conduct of the investigation in the case.
34. Next hearings were fixed for 14 December 1998 and 4 January 1999. On its session held in camera on 7 December 1998 the Regional Court decided to request the Supreme Court to prolong the applicant's detention until 30 June 1999.
35. On 14 December 1998 next hearing was held. Three witnesses were heard and one failed to attend. On 30 December 1998 the Regional Court requested the District Police in Brzeg Dolny to establish the whereabouts of witness D. M. At the hearing held on 4 January 1999 the court questioned one witness, whereas four others were absent. The applicant submitted a request to adjourn the questioning of the witnesses, relying on the absence of his defence counsel.
36. On 6 January 1999 the Supreme Court prolonged the applicant's detention until 30 April 1999. The Court observed that a number of hearings had been adjourned due to the failure of certain accused and of a number of witnesses to attend the hearings as summoned. It also had regard to the applicant's motions to take additional evidence. At the hearing held on 11 January 1999 witness G.D. was questioned. Three other persons summoned as witnesses failed to comply with the summonses.
37. At a subsequent hearing held on 18 January 1999 one of the co-accused was absent following an accident. The applicant and another co-accused requested that three new defence witnesses be heard in the case. The court adjourned the hearing. The subsequent hearing in the case was held on 25 January 1999 and two witnesses were questioned.
38. At the hearing held on 8 February 1999 the applicant requested access to the case-file, alleging that before the hearing his access had been insufficient to prepare his defence properly because he had never had access to all of the twenty volumes of the case-file at the same time. The applicant's counsel requested appointment of an expert in graphology in order to examine the authenticity of the signature of the co-accused S. P. on a certain document. The court adjourned the hearing.
39. On 15 February 1999 the applicant requested the Regional Court to grant him access to the entire case-file. On 1 March 1999 the court continued the hearing. Two witnesses were interviewed and one was absent. The court allowed the cross-examination of three witnesses and questioned another one.
40. At the next hearing held on 8 March 1999 one witness failed to appear. The court appointed an expert in graphology in order to examine the authenticity of the signature of the co-accused S.P. The court allowed the applicant's request that a new witness be interviewed and dismissed other requests concerning the taking of further evidence.
41. On 15 March 1999 the hearing was continued and one witness was heard. The court decided to impose fines on two absent witnesses. It also allowed the applicant's lawyer's request to examine a file of another criminal case and adjourned the hearing. On 17 March 1999 a lawyer of one of the co-accused requested to have three new witnesses questioned and the court granted that request.
42. At the hearing on 22 March 1999 the court heard four witnesses. On 29 March 1999 the court decided to hold the hearing despite the fact that two of the co-accused failed to comply with the summonses. The court, at the applicant's request, called two new witnesses since the applicant's lawyer had not agreed that their testimony be read out in the court. The court adjourned the hearing and fixed the dates for the next hearings.
43. On 6 April 1999 the court held the hearing, despite the absence of the co-accused I. M. Four witnesses summoned for that date failed to comply with the summonses. The applicant and another co-accused requested to accept as disclosed the testimony of two witnesses living abroad without their being read out in court.
44. On 12 April 1999 a next hearing was held. The court read out the testimony of the co-accused D. M, whose whereabouts remained unknown, and two further witnesses were questioned.
45. At a next hearing, held on 13 April 1999, one witness refused to answer questions. One of the co-accused was absent, but the court decided to continue the hearing. The court dismissed a request to admit evidence from the file of another criminal case, related to the present case and terminated by the German courts. The court also refused to allow the applicant's motion for a fresh expert report on the signature of the accused S. P. and to enclose a file of another case against persons who had been witnesses in the case against the applicant and to hear two new witnesses.
46. At the hearing held on 14 April 1999 the Regional Court requested the Supreme Court to prolong the applicant's detention until 15 June 1999 so that further witnesses could be heard. The Regional Court observed that the proceedings had essentially come to a close, but that it was impossible to hear one witness who was detained in another case, and one of the accused, who was ill.
47. A new witness was interviewed on 19 April 1999. One co-accused, who was ill, did not attend the hearing. The court decided to summon a subsequent witness and fixed dates for the next hearings. On 26 April 1999 the court adjourned the hearing due to the absence of one of the lawyers. The presence of the lawyer was mandatory and the co-accused had not consented to the hearing being held in his absence.
On 29 April 1999 the Supreme Court prolonged the applicant's detention until 15 June 1999, having regard to such essential obstacles as the illness of the co-accused I. M., new circumstances which were coming to light during the court proceedings and new evidence allowed by the court.
48. At a hearing before the Regional Court held on 30 April 1999 a new witness was present, but the hearing had to be adjourned due to the absence of the applicant's lawyer. The applicant did not agree that the hearing be continued. The court fixed dates for eight subsequent hearings until 1 June 1999.
49. On 4 May 1999 the hearing was adjourned, due to absence of the lawyers of three of the accused, including the applicant's. On 17 May 1999 the court decided to continue the hearing despite the absence of the accused I.M. who had submitted a sick leave certificate. One witness was questioned. The court ordered I. M.'s lawyer to submit I. M. sick leave certificate issued by a physician authorised to give certificates to justify the absence before a court on medical grounds.
50. On 20 May 1999, at the request of one of the lawyers, the court adjourned the oral pleadings of the parties until 24 May 1999. On 24 May 1999 the last hearing was held.
51. On 31 May 1999 the court gave a judgement in the case. The applicant was convicted of drug trafficking and forgery of documents and sentenced to ten years' imprisonment and a fine of 250,000 PLN. The court prolonged the applicant's detention until 30 September 1999 and the applicant appealed against the decision.
52. The applicant requested that written grounds for the judgment be prepared. On 2 July 1999 the Regional Court informed him that the case-file had been sent to the Court of Appeal as the complaints against the decision concerning prolongation of detention had to be considered and therefore the written grounds for the judgment could only be drawn up after the return of the case-file. On 9 July 1999 the Regional Court prolonged the time-limit for the grounds of the judgment to be prepared until 31 August 1999. The court stressed that the case was particularly complex and voluminous and that the case-file had meanwhile had to be sent to the Court of Appeal.
53. On 28 July 1999 the court informed the applicant about the new time-limit fixed for the preparation of the written grounds of the judgment. On 31 August 1999 the Regional Court again prolonged the time-limit in respect of the written grounds of the judgment until 10 September 1999, having regard to the complexity of the case. On 21 September 1999 the reasoned judgement, numbering sixty-four pages, was served on the applicant.
54. On 15 October 1999 the applicant lodged an appeal against the first-instance judgment with the Court of Appeal. On 16 February 2000 the Court of Appeal dismissed the applicant's appeal.
55. On 28 April 2000 the applicant lodged a cassation appeal against the second-instance judgement with the Supreme Court. He argued that the appellate court had failed to rectify errors of law committed by the first-instance court. The first-instance court had in particular failed to address correctly the complaints relating to certain refusals to take evidence and to the fact that some evidence was not taken in an adversarial manner as the court had only decided to include it in the case-file. The applicant had thus been deprived of the possibility of questioning certain witnesses. On 2 April 2000 the Appellate Prosecutor in Wrocław filed his reply to the cassation appeal with the Supreme Court. On 7 June 2000 the Supreme Court dismissed the applicant's request to stay execution of his sentence.
56. On 30 October 2001 the Supreme Court dismissed the applicant's cassation appeal and the appeals filed by the two co-accused, the applicant's brother A.S. and A.M.
57. The letters from the applicant to the Secretariat of the European Commission of Human Rights, dated 29 April 1997, 13 May 1997, 14 May 1997 (2 letters) and 17 June 1997, were intercepted by prison guards. They opened and apparently forwarded them to the prosecuting authorities, who in turn later read and forwarded them to the addressee. The envelopes of these letters bear stamps of the Wrocław Detention Centre, together with the stamps “censored” (“ocenzurowano”).
58. The 1973 Code of Criminal Procedure, applicable at the relevant time, listed as "preventive measures", inter alia, detention on remand, bail and police supervision.
59
60. After the bill of indictment was transmitted to the court, orders relating to detention were to be made by the court. A decision concerning preventive measures could be appealed to a higher court.
61. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his detention. Under Article 221 § 2 of the Code of Criminal Procedure he could appeal to a court against a detention order given by a prosecutor (see above). Under Article 222 §§ 2 (1) and 3 he could appeal against a further decision by that court prolonging his detention at a prosecutor's request. Under Article 214 the detainee could at any time request the competent authority to quash or alter the decision concerning the preventive measure imposed in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
62. The situation of persons detained on remand was at the relevant time governed by the Code of Execution of Criminal Sentences of 1969. Under Article 89, all correspondence of each detainee was to be opened, read and, if need be, subjected to censorship, unless a prosecutor or a court decided otherwise. No provision of the Code provided for any remedy to contest the manner or scope of the censorship of a detainee's correspondence.
63. The rights of persons detained on remand as regards their correspondence were further set out in Rule 33 of the Rules of Detention on Remand. These Rules provided that the correspondence of persons detained on remand was subject to screening by the authority conducting the criminal proceedings, i.e. either a public prosecutor or a court, depending on the stage reached in the proceedings.
64. On 6 July 1997 a new Code of Enforcement of Criminal Sentences was enacted by parliament. Article 102 of this Code, which entered into force on 1 January 1998, provides that convicted persons are entitled to non-screened correspondence with the State authorities, including the Ombudsman. Article 103 of the Code further provides that convicted persons and their lawyers may lodge complaints with the international agencies established under international treaties on protection of human rights, ratified by Poland. Prisoners' correspondence in such cases shall be dispatched with no delay and shall not be subjected to screening.
65. Pursuant to Article 512 of the new Code, the rights of persons detained on remand shall, in principle, be at least equal to those of persons convicted by a final judgment.
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108615
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PATYI v. HUNGARY
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1965 and lives in Budapest.
6. The applicant intended to organise demonstrations in order to call attention to the situation of those having sustained damage originating in a major bankruptcy case which had attracted considerable media attention in Hungary. On 5 February 2007 he applied to the Budapest Police Department for acquiescence in a demonstration on 10 March 2007 and in another one, of ongoing nature, from 10 March until 31 October 2007, both scheduled in Kossuth Square, in front of Parliament.
7. On 7 February 2007 the Budapest Police Department refused to deal with either of the applications. It observed that on 23 October 2006 the area in question had been declared by the Police Department itself a “security operational zone” (biztonsági műveleti terület) in view of the tumultuous events in Budapest in September 2006. Consequently, the measure – which was, after a prolongation, in place for an indefinite period of time – remained as such outside the Police Department’s competence as regards the prohibition of, or acquiescence in, a demonstration.
8. On 5 March 2007 the National Police Commander upheld this decision.
9. On 14 January 2008 the Budapest Regional Court dismissed the applicant’s request for judicial review, endorsing in essence the police authorities’ reasoning. This decision was served on 26 January 2008.
10. In another case concerning the same area, on 29 January 2007 a Mr K. challenged the police’s very decision to declare Kossuth Square a “security operational zone”. On 14 March 2007 the Budapest Police Commander rejected his complaint, but this decision was quashed by the National Commander on 16 April 2007. In the resumed administrative proceedings, on 22 June 2007 the Budapest Commander again rejected the complaint. On 19 July 2007 the National Commander upheld this decision. Mr K. challenged this ruling in court.
11. Mr K.’s action was dismissed by the Budapest Regional Court. However, on appeal the Supreme Court quashed this decision, together with the one of 19 July 2007.
12. In the resumed second-instance administrative proceedings, on 23 December 2009 the National Commander again upheld the Budapest Commander’s decision. Mr K. requested judicial review.
13. On 11 November 2010 the Regional Court quashed, in judgment no. 27.K.31.354/2010/9., both the first- and the second-instance administrative decisions and remitted the case to the Budapest Commander. The court pointed out that the impugned decisions did not contain any concrete elements establishing the necessity and proportionality of maintaining the “security operational zone” after the prolongation of 22 November 2006. Nor did they address the plaintiff’s suggestion that the mere fencing-off of Parliament’s immediate vicinity – rather than the global ban on Kossuth Square – would have been sufficient in the circumstances.
14. In the resumed first-instance administrative proceedings, on 4 April 2011 the Budapest Commander partly sustained Mr K.’s complaint, noting that, in the absence of evidence to the contrary, the proportionality of the impugned measure had successfully been challenged.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-58978
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF RIEPAN v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 9. The applicant is serving an eighteen-year prison term following his conviction for murder and burglary in 1987. He was first detained at Karlau Prison, from which he escaped in 1991 but was rearrested within a day. In September 1994 he was transferred to Stein Prison and on 8 May 1995 to Garsten Prison, as the prison administration feared that he and a number of other inmates were devising an escape plan.
10. On 8 May 1995, when prison personnel at Garsten carried out the necessary reception formalities, the applicant refused to cooperate and demanded to be returned to Stein Prison, threatening that otherwise he and other inmates would set fire to Garsten Prison. On the following day, in the course of an interview with a senior prison officer, he again insisted on being returned to Stein Prison and threatened the prison officer that otherwise someone would pay the officer “a private visit”. A few days later he threatened a prison warder saying “that he should not turn his back on him”. On account of these incidents, criminal proceedings on charges of threatening behaviour (gefährliche Drohung) were instituted against the applicant.
11. The Steyr Regional Court (Landesgericht) decided to hold the hearing at Garsten Prison, which is situated about 5 km from Steyr. It set down 29 January 1996 as the date for the trial. The summons indicating the date and place of the hearing was served on the applicant as well as on his official defence counsel a month before the hearing.
12. At the material time information about hearings held at the Steyr Regional Court was given as follows.
The public prosecutor's office at the Regional Court issued a hearing list (Verhandlungsspiegel) in the middle of each week for the following week, containing, inter alia, the date and place of all hearings in criminal proceedings. This information would also include the number of the court hearing room and would, if appropriate, indicate that the hearing was to be held at the scene of the crime or the name of the prison at which it was to take place. The Government were unable to provide the list for the week of 29 January 1996, as these lists are not kept, but asserted that it would, in accordance with the usual practice, have indicated Garsten Prison as the place of the hearing in the applicant's case. The hearing list was distributed by the public prosecutor's office to the media, namely to the most important national and regional newspapers, as well as to the national broadcasting station. Furthermore, a copy was given to the Regional Court's registry and information desk. Thus, interested persons could obtain information about forthcoming hearings either by calling the court's registry or by presenting themselves at the court's entrance.
13. On 29 January 1996 the Steyr Regional Court, sitting with a single judge, held a hearing in the closed area (Gesperre) of Garsten Prison. The hearing room measured about 25 sq. m. It was furnished with a table and seats for the judge, the secretary, the public prosecutor, the applicant and his defence counsel. There is disagreement between the parties as to whether there were further seats available for witnesses and potential spectators.
14. The hearing, which according to the minutes was public, was opened at 8.30 a.m. It lasted thirty-five minutes. The applicant, assisted by counsel, pleaded not guilty. The court heard the four prison officers to whom the applicant had allegedly addressed threats as witnesses. Neither the applicant nor his counsel complained about a lack of publicity at that time. Following the hearing, the Regional Court convicted the applicant of threatening behaviour, finding that he had on three occasions threatened prison personnel with arson or assault, and sentenced him to ten months' imprisonment.
15. Thereupon, the applicant filed an appeal on points of law and fact, as well as against sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). He complained, in particular, as a ground of nullity, that the hearing on 29 January 1996 had not been public since it took place in the closed area of Garsten Prison, to which only people with special permits, other than prison personnel, had access. He also claimed that the room in which the hearing was held was too small to accommodate any spectators and alleged that not even the witnesses had been able to stay in the room simultaneously. Moreover, he challenged the Regional Court's assessment of the evidence and its establishment of the facts. Finally, he complained that the sentence was too severe.
16. On 5 July 1996 the Linz Court of Appeal (Oberlandesgericht) held a public hearing in the court building in the presence of the applicant and his counsel. The appellate court is about 50 km from Garsten Prison. The hearing lasted three-quarters of an hour. The court heard the applicant as regards the alleged lack of publicity of the hearing on 29 January 1996. It also heard him on the various counts of threatening behaviour, questioning him as regards the statements made by the witnesses at the trial. It did not rehear the witnesses and the defence made no request to this effect.
17. The Court of Appeal dismissed the case. As to the complaint that the hearing on 29 January 1996 had not been public, the court noted that, according to information submitted by the Steyr Regional Court, the hearing was public in the sense that any interested person would have been allowed to attend. Had the prison governor been concerned that interested persons should not be granted access to the closed area, he would have been obliged to prohibit the conduct of the trial in that part of the prison. In any case, no such persons wishing to attend the trial had been present at the beginning of the hearing, and the judge had not been informed of any potential spectators.
18. As to the applicant's appeal on points of fact, the Court of Appeal stated that it had no doubts regarding the Regional Court's evaluation of the evidence and its establishment of the facts. The appellate court also confirmed the Regional Court's legal view that the applicant had, by threatening prison personnel with arson or assault, committed the offence of threatening behaviour. Finally, it found that the sentence was commensurate with the applicant's guilt.
19. Article 90 § 1 of the Federal Constitution (Bundesverfassungsgesetz) provides:
“Hearings by trial courts in ... criminal cases shall be oral and public. Exceptions may be prescribed by law.”
20. Article 228 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that the trial is to be public. Failure to comply with this requirement constitutes a ground of nullity.
According to Article 229 § 1, the public may be excluded from the trial in the interests of morals or public order. The court has to take a formal decision on the exclusion of the public. No remedy lies against such a decision.
Pursuant to Article 488, the above provisions apply to proceedings before a single judge.
21. According to Article 489 § 1 taken together with Article 472 § 1, an appeal hearing against a judgment of a single judge has to be public. Articles 228 and 229 apply.
22. According to Article 489 § 1 taken together with Article 464, an appeal on points of law and fact and against sentence lies against the judgment of a single judge. By virtue of Article 467 § 1, the appellant may adduce new facts and evidence.
In accordance with Article 473 § 2, the appellate court will rehear witnesses and experts if it has doubts as to the correctness of the first-instance court's establishment of the facts, or if it holds that the hearing of new witnesses or experts as regards the same facts is necessary. Otherwise, it will take its decision on the basis of the file.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4578
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1995
DOCNAME: TOSUN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a Turkish citizen, born in 1965 and currently living in Turkey. Before the Commission he is represented by Mr. Norbert Wagener, a lawyer practising in Frankfurt am Main.
The facts of the case, as submitted by the parties, may be summarised as follows.
In or about 1969, when he was four years old, the applicant arrived with his family, his parents and four brothers and sisters, in Germany. A younger sister was born there later.
The applicant attended school in Ludwigshafen and worked thereafter in his parents' restaurant. From 1985 to 1987 he was the manager of this restaurant.
In 1984 and 1986 the applicant was convicted of theft and aggravated theft and fined, respectively sentenced to six months' imprisonment on probation.
On 25 March and 20 June 1988 the applicant was convicted by the Frankenthal Regional Court (Landgericht) of armed robbery in two cases and sentenced to three and to five years' imprisonment. The Regional Court fixed later a cumulative sentence (Gesamtstrafe) of five years' and six months' imprisonment.
After having served half of this sentence, the Zweibrücken Court of Appeal (Oberlandesgericht) suspended the remainder of the sentence on probation having regard to the favourable prognosis of the applicant's personality.
On 31 January 1991 the Ludwigshafen Aliens Office ordered the applicant to leave Germany on the ground that the applicant had been convicted of criminal offences and sentenced to more than five years' imprisonment. Reference was made in particular to Section 47 para. 1 (1) of the Aliens Act (Ausländergesetz). According to this provision, a foreigner shall be expelled from Germany if he has been finally sentenced to a minimum of five years' imprisonment for having committed wilfully one or more offences (... wird ein Ausländer ausgewiesen, wenn er wegen einer oder mehrerer vorsätzlicher Straftaten rechtskräftig zu einer Freiheitsstrafe von mindestens fünf Jahren verurteilt worden ist).

The applicant lodged an administrative appeal (Widerspruch) against the deportation order. These proceedings are still pending.
At the same time the applicant requested to suspend, pending the appeal proceedings, the execution of the deportation order (Antrag auf einstweiligen Rechtsschutz).
On 29 May 1991, the Administrative Court (Verwaltungsgericht) at Neustadt an der Weinstrasse dismissed this request. The Court found that the deportation order had been issued in accordance with the relevant provisions of the Aliens' Act. The competent authorities did not enjoy any margin of appreciation when ordering the applicant's deportation. Having regard to the applicant's sentence of more than five years' imprisonment and the seriousness of the offences committed by him, the public interest in the prevention of disorder and crime outweighed the applicant's interests in staying in Germany although he had lived with his family in that country for many years. Furthermore there was a particular public interest in enforcing the deportation order rapidly with a view to deterring other foreigners from committing similar offences.
The applicant's appeal (Beschwerde) against the refusal to be granted a suspension of the deportation order was dismissed by the Rheinland-Pfalz Administrative Court of Appeal (Oberverwaltungsgericht) on 29 October 1991.
On 19 December 1991 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to admit the applicant's constitutional appeal against the above decisions, on the ground that it offered no prospect of success.
The Federal Constitutional Court held that it was not in breach of any constitutional right to expect the applicant to pursue the appeal proceedings from Turkey.
On 8 April 1992 the applicant was expelled to Turkey.


ITEMID: 001-91841
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BEKER v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 2;Pecuniary and non-pecuniary damage - award
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicants were born in 1955, 1976, 1979 and 1983, respectively, and live in Ankara. The first applicant is the mother and the remaining three applicants are the brothers and sister of Mr Mustafa Beker, who was born in 1977 and was working as an expert corporal in the special teams of the gendarmerie in Tunceli.
6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.
7. At around 9.20 a.m. on 8 March 2001 Mustafa Beker allegedly committed suicide by shooting himself in the head in the dormitory of the military barracks where he was stationed. A non-commissioned officer who arrived at the scene immediately checked for a pulse and realised that Mr Beker was still alive. At 9.30 a.m. he was taken to the infirmary in an ambulance.
8. The same day a First Lieutenant (“the military investigator”) carried out an inspection of the dormitory, drew a sketch of the place, questioned a number of Mr Beker’s colleagues and recorded their statements.
9. A pistol was found some distance away from the place where Mr Beker had fallen, but the exact distance is not specified in the sketch. The pistol had been cocked and had fired two rounds but had failed to fire a third time. Two spent bullet cases and two bullets – one of which was misshapen – were also found. It was established that the pistol belonged to one of Mr Beker’s colleagues, expert sergeant T.Y., who had left it in his locker just outside the dormitory. According to a document drawn up by the military investigator, Mr Beker had obtained the pistol by smashing the padlock on the locker with a stick.
10. Expert sergeant M.A., when questioned by the military investigator, stated that Mr Beker had stayed at the former’s house the previous night. Mr Beker had been drunk and in an agitated state. M.A. had been concerned about Mr Beker’s state and had taken his pistol away from him and then hidden it in his house. When he had woken up in the morning, Mr Beker had already left the house, leaving his pistol behind. He had found Mr Beker in a restaurant, drinking. They had then gone to the barracks where Mr Beker had unsuccessfully asked expert sergeant T.Y. for the key to T.Y.’s locker. M.A. had then started to walk away but turned back when he heard a gunshot; whereupon he saw Mr Beker on the floor, with a pistol next to his feet.
11. When questioned by a military prosecutor, expert sergeant T.Y. confirmed that he had seen M.A. and Mr Beker in the corridor and that the latter had asked him for his key to his locker. He had told Mr Beker that he did not have the key on him. He had then left to attend to business elsewhere in the barracks. He had left his pistol in his locker.
12. Expert sergeant M.K. told the military investigator that, between 9.10 and 9.15 a.m., he had been changing his clothes in front of his locker in the corridor when Mr Beker had approached him and asked him where T.Y.’s locker was. M.K. had then heard noises which he thought were coming from the area near Mr Beker’s locker. Twenty to thirty seconds later he had heard two gunshots coming from the dormitory. When he had reached the dormitory he had seen Mr Beker lying on the floor with his head bleeding.
13. Four expert sergeants questioned by the military investigator and subsequently by the military prosecutor stated that they had been in their bunk beds in the dormitory when Mr Beker entered at around 9.15 a.m. and asked them to get up and start work. They had told Mr Beker that it was still too early to get up as their shifts did not start until 11 a.m. Mr Beker had then left the dormitory and they had heard noises coming from the locker area. Mr Beker had then re-entered the dormitory carrying a pistol. They had then heard him cock the pistol before they heard two gunshots within a second of each other. With the exception of one of the expert sergeants, none of them had seen Mr Beker shoot himself. None of the expert sergeants had heard Mr Beker talking or arguing with anyone before the shooting or seen anyone running away from the scene afterwards.
14. A number of Mr Beker’s colleagues told the military prosecutor that he had been feeling low for the last couple of months and had been drinking a lot. He had fallen in love with a girl in January 2001 but his mother opposed their marriage.
15. Expert sergeant S.U. was the only person in the dormitory who claimed to have seen Mr Beker shoot himself. He told the military investigator that he had seen and heard Mr Beker fire once, using his right hand and aiming at the right side of his head. When he was subsequently questioned by the military prosecutor, he stated that he could not remember exactly how many shots he had heard as he had been in a state of shock. He added that, although he had been about five metres away from Mr Beker at the time, he had not actually seen Mr Beker shoot himself as he had covered his face with his hands.
16. According to a report prepared by the Tunceli public prosecutor the same day, the military authorities had requested him to assist them in the investigation by carrying out a preliminary examination of the body of Mr Beker, who had died before his arrival at the Tunceli State Hospital. Mr Beker’s body was formally identified by his colleague, expert sergeant M.A..
17. The prosecutor and a doctor first examined Mr Beker’s clothes and observed that there were no bullet holes or any other marks on them. They observed a bullet entry hole on the left temple and a bullet exit hole on the right temple. A lack of gunpowder residue or burns on the skin next to the entry hole led the doctor to conclude that the shot had been fired at close but not at point-blank range. There were no other injuries on Mr Beker’s body.
18. During the examination the prosecutor and the doctor smelt alcohol emanating from Mr Beker’s body. Expert sergeant M.A. confirmed that Mr Beker had been drinking that morning. M.A. also informed the prosecutor and the doctor that Mr Beker had been right-handed and had always used his right hand when shooting during their military training.
19. The doctor secured plastic covers to Mr Beker’s hands to preserve them for a subsequent swab test. The body was then sent to Elazığ Military Hospital, where a post-mortem examination was carried out the same day.
20. In the course of that examination, the pathologist observed no gunpowder residue next to the bullet entry hole and concluded that the shooting had occurred at point-blank range. The bullet entry hole was approximately two centimetres above the left eyebrow. The exit hole was next to the right ear. There were burnt and un-burnt gunpowder particles inside the bullet entry hole.
21. A blood sample was found to contain no alcohol and the cause of death was established as the destruction of the brain. The pathologist also took swabs from Mr Beker’s hands for a forensic examination which found gunpowder residue on the outside of the deceased’s right hand (report of 27 April 2001).
22. On 10 March 2001 the military investigator concluded his investigation. In a one-sentence conclusion, the military investigator stated that Mr Beker had “committed suicide as a result of a sudden bout of depression”.
23. A lieutenant, who was Mr Beker’s immediate commander and who knew him well, was recorded as stating that Mr Beker had been a very good soldier and that he had not had any psychological problems.
24. On 13 March 2001 Özgür Beker, who is one of the applicants and a brother of Mr Beker, asked the office of the military prosecutor for copies of the documents from the investigation file because the family had “suspicions surrounding his death”.
25. On 12 April 2001 the lawyer for the applicants wrote to the office of the Elazığ military prosecutor and repeated the family’s request for information and documents about the investigation into Mr Beker’s “alleged suicide”.
26. On 9 January 2002 the lawyer for the applicants wrote to the Ministry of Defence and again asked for information about the investigation. The lawyer also stated in his letter that his clients had merely been informed by the military authorities that Mr Beker had committed suicide. However, neither he nor the family had been given any information or documents from the investigation file despite their written requests. The lawyer submitted that a number of anonymous telephone calls had been made to the mobile telephone which had been owned by Mr Beker and which had since been returned to the family. The callers had stated that Mr Beker had been murdered. The lawyer submitted that the lack of information about the investigation strengthened the family’s conviction that Mr Beker had indeed been murdered.
27. A military prosecutor in Elazığ replied to the lawyer’s letter on 30 January 2002, enclosing a copy of the post-mortem report. The prosecutor stated that, as the investigation was still continuing, no decisions had been taken yet.
28. On 8 November 2002 the military prosecutor in Elazığ decided to close the investigation. He concluded that Mr Beker had shot himself in the “right temple and at close range” because his mother had opposed his marriage to his girlfriend. He had thus been feeling unhappy. No one had helped him to commit suicide.
29. The military prosecutor’s decision is largely devoted to notes reproduced from a notebook which had apparently been found among Mr Beker’s personal belongings following his death. Some of the notes are confused and resemble a suicide note.
30. On 9 December 2002 the applicants lodged an objection to the military prosecutor’s decision to close the investigation. They pointed out, inter alia, that gunpowder residue had been found on Mr Beker’s right hand but the bullet entry hole had been on the left side of the head. According to the applicants, it was improbable that a person would commit suicide by shooting himself in the left side of the head with his right hand. Furthermore, they drew attention to the failure to determine the distance between the place where the pistol was found and the place where Mr Beker had fallen. They also pointed to the fact that the military prosecutor had not investigated the conflicting statements made by the officers who had witnessed the incident.
31. On 16 December 2002 a military court rejected the objection lodged by the applicants, considering that all necessary investigative steps had already been taken.
32. On 18 March 2003 the applicants wrote to the Elazığ military prosecutor’s office and asked for the investigation to be reopened. In their request they repeated their above-mentioned arguments and added that they had not been consulted during the investigation. They also argued that the case file should have been sent to the Forensic Medicine Institute with a view to obtaining that Institute’s opinion as to whether it would have been possible for Mr Beker to commit suicide by shooting himself in the left side of the head with his right hand. They pointed out that the pistol used in the incident had been semi-automatic, meaning that the trigger had to be pulled for each shot and, as such, it would not have been possible for Mr Beker to shoot himself a second time after a bullet had already entered and exited his head. Nevertheless, according to the investigation, the pistol was found cocked and it was established that it had failed to fire a third time. To try to shoot himself a third time, they maintained, would have been impossible.
33. The applicants also submitted in their request that neither the pistol nor the wooden stick allegedly used to smash the padlock on T.Y.’s locker, nor the locker itself, had been examined for fingerprints to establish whether Mr Beker’s fingerprints were on them.
34. They asked the military prosecutor to carry out another investigation with a view to eliminating these unresolved issues and to determine with certainty whether Mr Beker had been killed or had committed suicide as alleged. They maintained that, even assuming that Mr Beker had committed suicide, those responsible for the failure to ensure his psychological wellbeing should be prosecuted.
35. The applicants did not receive any information about the outcome of their application for a reopening of the investigation.
VIOLATED_ARTICLES: 2


ITEMID: 001-69726
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MEZNARIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1954 and lives in Zagreb.
9. On 10 July 1991 M.T. and H.T. (“the plaintiffs”) brought an action in the Zagreb Municipal Court (Općinski sud u Zagrebu) against the applicant seeking damages for breach of contract.
10. From 27 November 1991 until 27 January 1992 the plaintiffs were represented by their legal counsel, M.V. and thereafter by his daughter, S.T., who took over her father's law practice.
11. The plaintiffs, but not M.V., attended the first hearing in the case that was held on 11 December 1991. M.V.'s activity in the proceedings was thus limited to filing one set of submissions with the court on 2 December 1991 in which he responded to the applicant's arguments.
12. At the next hearing held on 27 January 1992 S.T. replaced her father as the plaintiffs' counsel.
13. On 28 April 1992 the Municipal Court gave judgment for the plaintiffs. Following an appeal by the applicant, on 9 February 1993 the Zagreb County Court (Okružni sud Zagreb) quashed the first-instance judgment and remitted the case to the Municipal Court.
14. In the resumed proceedings, on 6 July 1993 the Zagreb Municipal Court again gave judgment for the plaintiffs. The applicant appealed.
15. On 27 September 1994 the Zagreb County Court reversed the first-instance judgment, only accepting part of the plaintiffs' claim.
16. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske) in which he argued, inter alia, that he had been unable to present his case properly in the Municipal Court.
17. On 8 December 1999 the Supreme Court dismissed the applicant's appeal on points of law.
18. On 28 July 2000 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).
19. Following the service of the Supreme Court's decision, on 24 August 2000 S.T. informed the Zagreb Municipal Court that she had ceased to act for the plaintiffs some four years earlier and that the decision should have been served on the plaintiffs directly.
20. On 18 December 2000 the Constitutional Court dismissed the applicant's complaint. It found that the articles of the Constitution on which the applicant sought to rely did not contain any substantive provisions enshrining human rights or fundamental freedoms.
Judge M.V. was a member of the panel of five judges which delivered that decision. The panel was presided over by another judge. The applicant became aware of the composition of the panel when he received the Constitutional Court's decision.
21. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 – “the 1999 Constitutional Court Act”) as in force at the material time provided as follows:
“A judge of the Constitutional Court may not abstain from voting, unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which the Constitutional Court is required to rule.”
“Unless provided otherwise by this Constitutional Act, in the proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as ancillary rules.”
Section 72 provides that, if a constitutional complaint is successful, the Constitutional Court must quash the impugned decision and remit the matter to the competent authority.
22. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92 and 112/99 – “the Civil Procedure Act”) as in force at the material time provided as follows:
“A judge ... shall be disqualified from exercising his functions:
1. if he is... a counsel of the party...;
...
3. if... the party's counsel is his relative in the direct line ...;
...
6. if other circumstances exist to cast doubt on his impartiality.”
The grounds enumerated in section 71 subparagraphs 1-5 are considered absolute grounds for withdrawal in that the judge concerned is automatically disqualified from sitting.
Section 72(1) provides that, from the moment he becomes aware of an absolute ground disqualifying him from sitting, the judge must take no further part in the case and bring the circumstances which disqualify him from sitting to the immediate attention of the president of the court of which he is a member, whereupon the president designates another judge to hear the case.
23. In its decision no. Rev-1104/1999-2 of 24 June 1999 the Supreme Court held that for section 71 to apply it was not necessary for the ground for withdrawal to have existed throughout the proceedings or, in particular, when the decision complained of was delivered; it was sufficient for it to have existed at some point during the proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-86687
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MISIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1958 and lives in Gdańsk.
5. On 9 August 2006 the applicant was arrested on suspicion of fraud and placed in pre-trial detention. The grounds for this decision are unknown, since the applicant has not produced a copy of it.
6. On 3 November 2006 the Gdańsk District Court (Sąd Rejonowy) extended the applicant’s detention until 9 February 2007. It relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the need to secure the proper conduct of the proceedings. The court further found that there was a risk that the applicant might go into hiding, given that earlier he could not be found at his place of permanent residence.
7. The applicant submitted that he unsuccessfully appealed against decisions extending his detention.
8. The applicant maintained that during his arrest he was treated in a degrading manner by police officers and that he was subjected to threats. On 19 February 2007 the Gdańsk District Prosecutor instituted an investigation into the applicant’s complaints against the police officers. The investigation is still continuing.
9. The applicant submitted that during his detention his correspondence was censored by the authorities. He produced five envelopes. All the envelopes bear a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator). Those envelopes contained letters from:
1) the Penitentiary Association “Patronat” (Stowarzyszenie Penitencjarne “Patronat”), a non-governmental organisation, acting, inter alia, on behalf of prisoners and former prisoners, sent on 30 August 2006;
2) the Supreme Court, sent on 26 September 2006;
3) the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, sent on 27 September 2006;
4) the Ministry of Justice; sent on 27 September 2006;
5) the Ombudsman, sent on 28 September 2006.
10. The applicant produced one envelope that indicates as the addressee of the letter the Governor of Sztum Prison and bears a stamp that reads: “Censored, date ..., Prosecutor” (Ocenzurowano, dnia ... Prokurator). A hand-written note indicates case file no. IC 119/05.
11. One envelope bears traces of having been opened - its sides were cut open and resealed using self-adhesive tape.
12. The applicant submitted that a letter addressed to him by the Court had been opened and read by the authorities. In a note sent to the applicant from Sztum Prison (Zakład Karny) on 21 December 2006, he was informed that on 29 November 2006 a letter from the European Court of Human Rights to the applicant had been delivered by the District Prosecutor’s Office. The note further states that the letter had clearly been damaged.
13. The relevant domestic law and practice concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.
VIOLATED_ARTICLES: 8


ITEMID: 001-72869
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MAMONOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Vladimir Maksimovich Mamonov, is a Russian national who was born in 1953 and lives in Kaliningrad.
The applicant is a retired military serviceman entitled to a pension allowance. He questioned the accuracy of the method employed for calculation of his pension.
On 14 September 2004 the applicant brought a civil action against his former employer, a local commissariat of the Ministry of Defence of Russia, claiming recalculation of his pension from 1 January 2000. He insisted on employing a particular method of recalculation.
On 17 November 2004 the Leningradskiy District Court of Kaliningrad granted his claims in part and ordered the recalculation of the pension for the period between 1 January 2000 and 1 December 2000. In particular, the court ordered an increase in the amount due and the payment of the arrears. The method employed for the recalculation differed from the one sought by the applicant, which provided for a more significant increase.
On 23 December 2004 the applicant appealed against the judgment claiming that the first-instance court had wrongfully applied domestic law.
On 30 March 2005 the Kaliningrad Regional Court dismissed the appeal and upheld the first-instance judgment in full.