ITEMID: 001-57721
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;No violation of Art. 5-2;Violation of Art. 5-5;Not necessary to examine Art. 5-4 and 13;Just satisfaction reserved
TEXT: 8. The first and second applicants, Mr Bernard Fox and Ms Maire Campbell, are husband and wife but separated. Both reside in Belfast, Northern Ireland.
9. On 5 February 1986 they were stopped by the police in Belfast and brought to Woodbourne Royal Ulster Constabulary ("RUC") station, where a full search of the vehicle in which they were travelling was carried out. Twenty-five minutes after their arrival at the police station, at 3.40 p.m., they were formally arrested under section 11 (1) of the Northern Ireland (Emergency Provisions) Act 1978 ("the 1978 Act"; see paragraph 16 below). They were informed that they were being arrested under this section and that this was because the arresting officer suspected them of being terrorists. They were also told that they could be detained for up to 72 hours. They were taken to Castlereagh Police Office, where they were separately interviewed by the police on the same day between 8.15 p.m. and 10.00 p.m.
10. During their detention Mr Fox and Ms Campbell were asked about their suspected involvement that day in intelligence gathering and courier work for the Provisional Irish Republican Army ("Provisional IRA"). They were also questioned about their suspected membership of this organisation. According to the Government, the information underlying the suspicion against them was already known to the police when they stopped their car.
No charges were brought against either applicant. The first applicant was released at 11.40 a.m. on 7 February 1986 and the second applicant five minutes later. Excluding the time taken to bring them to the police station, the first applicant had thus been detained 44 hours and the second applicant 44 hours and 5 minutes.
11. On being arrested both Mr Fox and Ms Campbell were shown the notice drawn up for persons held in police custody which explained their rights. They were not brought before a judge or given any opportunity to apply for release on bail. On 6 February they both initiated proceedings for habeas corpus but were released before the applications came on for hearing before a judge.
12. Mr Fox had been convicted in 1979 of several explosives offences, for which he received concurrent sentences of 12 years’ imprisonment, and of belonging to the IRA, for which he received a concurrent sentence of 5 years. Ms Campbell received an 18 months’ suspended sentence in 1979 after being convicted of involvement in explosives offences.
13. The third applicant, Mr Samuel Hartley, resides in Waterfoot, County Antrim, Northern Ireland. On 18 August 1986 he was arrested at his home, in his parents’ presence, at 7.55 a.m. He was informed at the time of his arrest that he was being arrested under section 11 (1) of the 1978 Act as he was suspected of being a terrorist. He was taken to Antrim police station where, on arrival, he was shown a copy of the notice for persons held in police custody. He was interviewed there by the police between 11.05 a.m. and 12.15 p.m.
14. Mr Hartley was suspected of involvement in a kidnapping incident which had taken place earlier that month in Ballymena when a young man and woman were forcibly taken away by masked armed men. Those involved in the kidnapping were thought to have connections with the Provisional IRA. The motive behind the kidnapping was believed to have been an attempt to force the young woman to retract an allegation of rape made the previous year as a result of which a person had been convicted and sentenced to 3 years’ imprisonment. The Government said at the Commission hearing that their record of the first interview with Mr Hartley showed that he was questioned about terrorist activities in a specific small, geographical area, and about his involvement with the Provisional IRA. The record is not more detailed than that, but the area in question was where the kidnapping took place. The applicant Hartley denied any involvement in the kidnapping incident but he has not contradicted the Government’s assertion that he was asked about it.
No charges were brought against him. He was released on 19 August 1986 at 2.10 p.m. after 30 hours and 15 minutes in detention. He brought no proceedings in connection with his arrest or detention.
15. For the past 20 years the population of Northern Ireland, which totals 1.5 million people, has been subjected to a campaign of terrorism (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 9-31, §§ 11-77, and the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 21, § 25). More than 2,750 people, including almost 800 members of the security forces, have been killed and 31,900 more have been maimed or injured. The campaign of terror has extended to the rest of the United Kingdom and to the mainland of Europe.
Special legislation has been introduced in an attempt to deal with this situation in Northern Ireland. Thus, the 1978 Act and its predecessors, the Northern Ireland (Emergency Provisions) Act 1973 ("the 1973 Act") and the Northern Ireland (Emergency Provisions) (Amendment) Act 1975 ("the 1975 Act"), were enacted to enable the security forces to deal more effectively with the threat of terrorism.
16. Section 11 of the 1978 Act conferred, inter alia, a power of arrest. The relevant parts of section 11, which was repealed in 1987, provided as follows:
"1. Any constable may arrest without warrant any person whom he suspects of being a terrorist.
...
3. A person arrested under this section shall not be detained in right of the arrest for more than seventy-two hours after his arrest, and section 132 of the Magistrates’ Courts Act (Northern Ireland) 1964 and section 50(3) of the Children and Young Persons Act (Northern Ireland) 1968 (requirement to bring arrested person before a magistrates’ court not later than forty-eight hours after his arrest) shall not apply to any such person."
Sub-section (2) gave a power to enter and search premises where a suspected terrorist was or was suspected of being. Under sub-section (4) persons arrested under section 11 could be photographed and their finger prints and palm prints taken by a constable.
17. Section 31 (1) of the 1978 Act defines "terrorist" and "terrorism". A terrorist is "a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism". Terrorism is defined as "the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear".
Under section 21 of, and Schedule 2 to, the 1978 Act, certain organisations - one of which is the IRA, the Provisional IRA included - are proscribed organisations. It is an offence to belong to or profess to belong to such an organisation, to solicit or incite support for any such organisation, knowingly to make or receive any contribution to it, to solicit or invite a person to become a member or to carry out on its behalf orders or directions or requests by a member of the organisation.
18. The powers of arrest and detention under section 11 of the 1978 Act were originally an integral part of the scheme of interim custody introduced by the 1973 Act to replace internment (see the Ireland v. the United Kingdom judgment previously cited, Series A no. 25, pp. 38-39, § 88). By 1980 this scheme (as re-enacted in the 1975 and 1978 Acts) had been repealed with the exception of section 11 and the power was thereafter used as a free-standing power of arrest and detention for up to 72 hours.
Since its enactment in 1973 the legislation conferring this power was subject to periodic renewal by Parliament. Thus, under the 1978 Act (section 33) the relevant provisions became renewable, and were renewed, every six months until their repeal in 1987.
19. In 1983 the Secretary of State for Northern Ireland invited Sir George Baker, a retired senior member of the judiciary, to examine the operation of the 1978 Act to determine whether its provisions struck the right balance between maintaining as fully as possible the liberties of the individual whilst conferring on the security forces and courts adequate powers to protect the public from terrorist crime. There followed a number of recommendations in a report which was published in April 1984 (Command Paper, Cmnd. 9222). In his report Sir George Baker made the following remarks:
"263. Generally I find it unhelpful in making recommendations in 1984 to go back further than 1973 but to understand the arrest and detention sections of the [1978 Act] it is useful to note that Regulation 10 of the Special Powers Act (Northern Ireland) 1922 provided:
‘Any Officer of the RUC for the preservation of the peace and maintenance of order, may authorise the arrest without warrant and detention for a period of not more than 48 hours of any person for the purpose of interrogation.’ (My emphasis).
This general power of arrest for questioning did not disappear entirely when the Special Powers Act was repealed by Westminster. It was re-worded and to some extent re-enacted in the [1978 Act] and PTA [the Prevention of Terrorism (Temporary Provisions) Acts 1974 and 1976]. But nowhere in these acts do the words ‘for the purpose of interrogation’ appear. That is left to be inferred. There is widespread criticism of the alleged illegal use of arrest for ‘information gathering’ or low grade intelligence and harassment. It might be better if the power of the RUC were expressly spelled out in the Act linked of course to appropriate controls. That the police have such a power under the PTA was accepted by Lawton LJ in the English Court of Appeal (Criminal Division) in R. v. Houghton (1987) Criminal Appeal Reports 197.
264. In contrast to the provisions of the [1978 Act] which deal with the trial of terrorist offences and do not require derogation from Article 6 (art. 6) of the European Convention, those which deal with the powers of arrest appear to contravene the minimum requirements of Article 5 (art. 5). Consequently the United Kingdom entered a notice of derogation under Article 15 (art. 15). Article 5 § 1 (c) (art. 5-1-c) requires reasonable suspicion of having committed an offence and arrest for the purpose of bringing the offender before a competent court. Section 11 [of the 1978 Act] requires neither, nor is an offence necessary. ... Any action which can be taken to avoid the United Kingdom having to rely on the notice of derogation to excuse breaches of the Convention is desirable.
...
Suspicion or reasonable suspicion
280. Only a lawyer or a legislator would suspect (or reasonably suspect?) a difference. But there is one because, say the judges, with whom I agree, Parliament by using the two phrases must have so intended. The test for Section 11 is a subjective one: did the arrestor suspect? If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raise the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause. Reasonable suspicion is itself a lower standard than evidence necessary to prove a prima facie case. Hearsay may justify reasonable suspicion but may be insufficient for a charge.
281. The only danger that I can foresee if the requirement of reasonableness is added to suspicion is that the facts raising the suspicion might have come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest. Against this there is the requirement of reasonable suspicion in Section 12 PTA which the RUC have used more extensively in 1982 and 1983. The figures for arrests are:
Under S.11 Under S.12 PTA
[of the 1978 Act]
1982 1,902 828
1983 (to 1 October) 964 883 ...
The criterion of whether to use one in preference to the other in any given case has been the length of time the person to be arrested may be held.
...
283. No evidence has been given to me to suggest that suspicion as against reasonable suspicion has been a factor in a decision to use Section 11 in preference to Section 12 and indeed some senior police officers have told me it would not influence them. I also understand that the police are now trained to treat arrest for terrorist offences as requiring similar suspicion as for all other offences. I therefore conclude that reasonable suspicion should be required when a constable arrests without warrant and this should be included in the new arrest powers which I propose in substitution for Section 11(1) and in Section 13(1).
...
285. There is no need to name a specific offence when arresting under section 11 or to inform the suspect of the grounds on which he is being arrested as would be required by the common law, which is that ‘a citizen is entitled to know on what charge or suspicion of what crime he is seized’. It is sufficient to say that the arrest is under the section on the grounds that he is suspected of being a terrorist. ..."
20. The exercise of the power of arrest in section 11 (1) has been considered by the House of Lords in the case of McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1-4. In that case the House of Lords held that the proper exercise of the power of arrest in section 11 depended upon the state of mind of the arresting officer. It was necessary that the arresting officer suspected the person he was arresting to be a terrorist; otherwise the arrest was unlawful. He could form that suspicion on the basis of information given to him by his superior officer, but he could not arrest under section 11 on the instructions of a superior officer who held the necessary suspicion unless the arresting officer himself held that suspicion. Lord Roskill, with whom the other Law Lords agreed, stated that the suspicion need not be a reasonable suspicion but it had to be honestly held. The requirement of a suspicion in the mind of a constable was a subjective test. That being so, the courts could only enquire as to the bona fides of the existence of the suspicion. The only issues were whether the constable had a suspicion and whether it was honestly held.
21. In addition, an arrest without warrant is subject to the common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person arrested must in ordinary circumstances be informed of the true grounds for his arrest, in a language which he understands, at the time he is taken into custody, or, if special circumstances exist to excuse this, as soon thereafter as it is reasonably practicable to inform him. A person is validly arrested under section 11 (1) of the 1978 Act if he is informed that he is being arrested under this provision as a suspected terrorist (in re McElduff [1972] Northern Ireland Reports 1 and McKee v. Chief Constable, loc. cit.).
22. Section 11 (1) of the 1978 Act was replaced by section 6 of the Northern Ireland (Emergency Provisions) Act 1987, which came into effect on 15 June 1987, subsequent to the facts of the present case. This new provision is confined to conferring a power of entry and search of premises for the purpose of arresting persons under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 (now section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 - see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 22, § 30). These latter provisions expressly limit powers of arrest without a warrant to cases in which there are "reasonable grounds" for suspicion.
23. A person who believed that his arrest or detention under section 11 was unlawful had two remedies, namely (a) an action for writ of habeas corpus, whereby a detained person may make an urgent application for his release from custody, and (b) a civil action claiming damages for false imprisonment (see the Brogan and Others judgment previously cited, Series A no. 145-B, p. 25, §§ 39-41). In either action the review of lawfulness would have encompassed procedural questions such as whether the arrested person has been properly informed of the true grounds for his arrest (Christie v. Leachinsky, loc. cit.); and whether the conditions for arrest under section 11 (1) had been complied with. As noted above, a court would not have enquired into the reasonableness of the suspicion grounding the arrest but rather whether the suspicion of the arresting officer was an honest one (McKee v. Chief Constable, loc. cit.).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-2


ITEMID: 001-118740
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: PANAITESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Miron Victor Panaitescu, is a Romanian national, who was born in 1974 and lives in Bucharest. He was represented before the Court by Mrs Elena Panaitescu, his mother. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan Horaţiu Radu, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 8 December 1999 the applicant was arrested on suspicion of aggravated theft, which he had allegedly committed between 29 and 30 June 1999.
4. On 16 December 1999 the prosecutor of the Bucharest Court of Appeal committed the applicant and two other individuals for trial on charges of aggravated theft. They were accused of having illegally transferred stocks from investment fund portfolios with the intention of using them on the stock market and then returning them to their real owner before their absence was noticed.
5. Before the Bucharest County Court the applicant submitted that his actions could not be classified as theft, as at that time the Criminal Code and legal opinion excluded intangible goods, and thus stocks, from being the object of a theft. In the applicant’s view, his actions could be interpreted as unauthorised stock trading under Article 114 of the Securities and Stock Exchanges Act (Law no. 52/1994) or under the 2001 Convention on Cybercrime. During the proceedings, he requested that the evidence be considered under Article 29 of the Electronic Commerce Act (Law no. 365/2002), which in his view was a more lenient piece of legislation.
6. On 3 October 2002 the Bucharest County Court found the applicant guilty of aiding and abetting in theft (complicitate la furt) pursuant to Articles 208 and 209 of the Criminal Code and of money laundering pursuant to Article 23(1)(c) of the Prevention and Punishment of Money Laundering Act (Law no. 21/1999). He was sentenced to eleven years’ imprisonment and received a five-year restriction on his rights to vote and to hold a position of power (Article 64 (a) and (b) of the Criminal Code as in force at the material time).
7. In deciding that the crime committed should be classified as theft, the County Court stated:
“...[S]tocks are intangible goods [bun incorporal] of economic value... and can be made subject to charge. Therefore, stocks may constitute the object of a theft... The ‘taking’ consisted of a virtual, electronic operation, a data transfer - that is to say, the stocks were moved from one account to another.
...
The evidence shows that the purpose of this action was to acquire the stocks illegitimately, not just to use them.”
8. The County Court considered that, although the applicant had not been the person making the transfers, he had been behind the operation and was therefore an accomplice.
9. The County Court excluded the applicability of the Security and Stock Exchanges Act as the culprits’ actions could not be classified as broking for the purposes of that Act. It also excluded the applicability of the Electronic Commerce Act to the offence, as the culprits had not carried out any “electronic commerce” activities for the purposes of that Act.
10. The applicant appealed, alleging in particular that the offence could not be classified as theft. He requested that the Electronic Commerce Act and the Prevention and Punishment of Money Laundering Act be applied to his case.
11. In a decision given on 28 January 2003, the Bucharest Court of Appeal dismissed the applicant’s arguments concerning the legal classification of the crime he had committed, endorsing the reasons given by the firstinstance court on that point. However, the court amended the firstinstance judgment, acquitting the applicant of money laundering. The sentence remained unchanged.
12. The applicant lodged an appeal on points of law with the High Court of Cassation and Justice, relying on his previous arguments regarding the classification of the crime.
13. In a final decision of 12 November 2003 the High Court dismissed the appeal, for reasons similar to the ones given by the lower courts.
14. The applicant served his sentence and on 24 April 2007 he was released and placed on probation.
15. The relevant Articles of the Criminal Code in force at the material time read as follows:
“(1) The act of taking a movable asset from another person’s possession or detainment, without the latter’s consent, in order to make it one’s own without right, shall be punishable by one to twelve years’ imprisonment.
(2) Movable assets shall also mean any form of energy that has economic value, as well as documents.”
“(1) Theft committed in the following circumstances:
(a) by two or more persons together;
...
shall be punishable by three to fifteen years’ imprisonment.”
16. The relevant provision of the Prevention and Punishment of Money Laundering Act (which entered into force on 21 April 1999) reads as follows:
“(1) The following shall be considered money laundering and shall be punishable by three to twelve years’ imprisonment:
(a) ... the exchange or transfer of assets, knowing that they are derived from criminal activity... offences committed through computers; offences committed through credit cards with a view to concealing or disguising their illicit origin, and assistance to persons who are involved in such activities or under suspicion of trying to escape the legal consequences of their actions;
(c) the acquisition, possession or use of such property, knowing that it derives from one of the offences under paragraph 1(a).”
17. On 12 December 2002, a new version of the Prevention and Punishment of Money Laundering Act entered into force (Law no. 656/2002), which contains a similar prohibition under its Article 23.
18. Article 29 of the Electronic Commerce Act (which entered into force on 5 July 2002) prohibits any unauthorised operations in data-processing systems.
19. An example of legal opinion at the material time on what constitutes the object of a theft is as follows:
“Theft can only concern tangible assets (bunuri corporale)... Article 208 § 2 includes documents in the sphere of movable assets... it is irrelevant whether the document has an intrinsic value (for example a historical document) or whether it only carries an economic value that it bears and with which it is inextricably linked (for example a share). The latter case is an exception from the rule that the object of a theft must be a tangible asset, as what is taken in this case is an intangible asset.” (Costica Bulai, Avram Filipas, Constantin Mitrache, Institutii de drept penal, Ed. Trei, 2001, p. 347)
20. At the Court’s request, the Government submitted information on how similar cases had been treated by the domestic courts. The only court which had dealt with similar cases to that of the applicant was the Bucharest Court of Appeal, which applied the Criminal Code to the actions carried out. That court gave a decision on 2 October 2007, in which it convicted the accused of a similar theft.
21. The Council of Europe’s Convention on Cybercrime (ETS no. 185) was opened for signature on 23 November 2001 in Budapest. It entered into force on 1 July 2004. The Convention was ratified by Romania on 12 May 2004 and became binding on the respondent State on 1 September 2004. Article 7 of the Convention on Cybercrime reads as follows:
“Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent, before criminal liability attaches.”


ITEMID: 001-110720
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KLEYN AND ALEKSANDROVICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible (Article 35-1 - Six month period);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The first applicant, born in 1981, is the widower of the late Ms Fatsima Aleksandrovich, a Belarus national of Roma ethnicity, who was born in 1979 and died in 2002. The second applicant is her son, born in 2000. The applicants are Russian nationals living in the Pskov Region.
6. The applicants provided the following account of the circumstances surrounding Ms Aleksandrovich’s arrest and death which was not disputed by the Government.
7. At 8.30 a.m. on 20 May 2002 Ms Aleksandrovich was travelling on a bus in Pskov with the first applicant’s sister, Ms Vera Kleyn. Ms P., a police officer who worked for the passport service of the Pskov police department, was travelling on the same bus when she realised that her purse was missing. She told her colleague, police officer Mr M., that her purse was gone. Mr M. searched the bus and found the purse under a seat. Ms Aleksandrovich being of Roma ethnicity, Mr M. assumed that she had stolen the purse and arrested her. She asked why, but Mr M. hit her on the head and said, “Only a Gypsy could steal the purse, who else?” Ms Vera Kleyn was not arrested.
8. Ms Aleksandrovich was taken to the Pskov regional police station. The acting head of the station asked the senior operational officer of the property offences investigations division Mr I. to interview her. When asked about her identity, Ms Aleksandrovich claimed to be one Ilona Kozlovskaya, born in 1990. According to Mr I., she was nervous, complained of stomach pain and often asked for permission to use the toilet. Several times he had to take her to the toilet located on the second floor (in Russian called “third floor”) of the police station, where female police officers Ms M. or Ms F. stayed with her. The last visit was just before 11.30 a.m. Since there were no female officers to accompany Ms Aleksandrovich, Mr I. let her go inside alone and waited by the door of the toilet.
9. The door of the toilet was not locked. A witness, Ms Sh., who was in the toilet, saw Ms Aleksandrovich and stated that she was moaning with pain and holding her stomach. Ms Sh. left the toilet shortly after this.
10. At 11.30 a.m. on 20 May 2002 an officer on duty found Ms Aleksandrovich unconscious on the ground in the yard of the Pskov regional police station. It appeared that she had jumped out of the toilet window. An ambulance took her to the Pskov regional hospital, where she died on 24 May 2002 without regaining consciousness.
11. Between 11.31 and 11.45 a.m. on 20 May 2002 the investigator from the Pskov regional police station compiled a report on an examination of the crime scene, which was carried out in the presence of two attesting witnesses (понятые). Photographs were taken of Ms Aleksandrovich’s body, the building, the yard, and the toilet door and window.
12. On 24 May 2002 the senior investigator with the Pskov prosecutor’s office ordered an inquest into the circumstances of Ms Aleksandrovich’s death and an autopsy on her body.
13. The medical report was completed on 10 June 2002. It concluded that she had died as a result of a cerebral trauma and numerous bodily injuries. The expert found: haemorrhages of the soft tissue of the head with cerebral trauma; fracture of the left side of 12th neck vertebra; fracture of the side growths of 2nd, 3rd, and 4th vertebrae; internal tear of the right kidney; extensive haemorrhages of the soft tissue of the left side of the vertebrae; swelling of the left eyelid; swelling of the right forearm; bruises on the extremities. These injuries had been caused by the impact of blunt objects and could have been the result of striking such objects following a fall from the third floor.
14. On 24 June 2002 the senior investigator issued a decision refusing to institute criminal proceedings into Ms Aleksandrovich’s death. He had collected statements from police officers Mr M., Ms P., Mr I., Ms F. and Ms M. and the witness Ms Sh., and found as follows:
“As at the moment of Ms Aleksandrovich’s fall out of the window of the toilet situated on the third floor of the Pskov regional police department, there was no one in the toilet but the deceased, the possibility is excluded of actual physical action by anyone wishing to take her life. The actions by Mr M. and Mr I. preceding Ms Aleksandrovich’s death had been taken as part of their official duties ... Thus, Mr M. acted in keeping with the requirements of the Police Act, which required him to take measures to prevent and to stop administrative offences or crimes. In the circumstances the measures were taken on the basis of the statement by Ms P., who identified Ms Aleksandrovich as the person who had attempted to steal her purse. Mr I. ... took measures to establish Ms Aleksandrovich’s identity. The period between the time of arrest and the time of her fall was no more than the three-hour limit set out in the Administrative Offences Code. During the interview Mr I. did not put any pressure on Ms Aleksandrovich. He had not known her before and he took measures to give assistance to Ms Aleksandrovich, who was unwell, as well as to prevent her from behaving inappropriately.”
15. Some eighteen months later, on 26 December 2003, Ms Tseytlina, acting as counsel for the first applicant, lodged an appeal with the Pskov Town Court against the decision refusing to institute criminal proceedings.
16. On 19 January 2004 the Pskov Town Court allowed the complaint. It found that the inquest had been incomplete, that Ms Aleksandrovich’s identity had not been conclusively established, that the collected samples and histological studies had not been examined, and that the causation of the multiple injuries had not been explained.
17. On 9 February 2004 the Pskov town prosecutor revoked the decision of 24 June 2002 and asked the investigator Mr Ts. to carry out a further inquiry.
18. On 13 February 2004 Mr Ts. issued two decisions. One decision refused to institute criminal proceedings in connection with Ms Aleksandrovich’s death; the other decision commissioned a new medical study into the reasons for the bodily injuries and death of Ms Aleksandrovich. Further to the applicants’ complaint, the Pskov town prosecutor set aside the decision refusing to institute criminal proceedings as taken prematurely in the absence of the findings of the medical examination.
19. On 12 March 2004 the medical expert produced his report. It stated that all the injuries had been caused within a short period of time a few days before the death, possibly on 20 May 2002. The injuries could have resulted from a fall from a height of 9.6 m because of their condensed localisation and great magnitude. No signs of a multi-phased fall or contact with any other objects could be detected.
20. On the same day Mr Ts. issued a new decision refusing to institute criminal proceedings in connection with Ms Aleksandrovich’s death. He noted in particular that the first applicant had been invited to make a statement but had never appeared.
21. On 26 October 2004 counsel for the first applicant lodged an appeal against the investigator’s decision with the Pskov Town Court.
22. On 6 June 2005 the Pskov Town Court dismissed the appeal as unsubstantiated. It found that there was no evidence, medical or otherwise, to support the theory that the injuries had been caused by ill-treatment rather than by a fall from the window.
23. Following an appeal by the first applicant, on 13 July 2005 the Pskov Regional Court quashed the Town Court’s decision. It noted that, under Russian law, experts and witnesses may only be held criminally liable for perjury if they have been examined as part of a criminal case. As criminal proceedings were never instituted, the first applicant’s access to justice was barred. It also noted that police officers are responsible for the life and health of those individuals who, like Ms Aleksandrovich, have been taken to a police station under constraint. The Regional Court remitted the matter for a new examination by a different bench of the Town Court.
24. On 29 July 2005 the Pskov Town Court, during a new examination, found the investigator’s decision unlawful, for the following reasons:
“Establishment of the circumstances and cause of Ms Aleksandrovich’s death, as well as the mechanism of causation of injuries on her body, is only possible by means of investigative actions and expert examinations carried out as part of a pending criminal case.
In addition, the official who refused to institute criminal proceedings did not give a legal opinion on the actions of police officers, who have a duty to supervise individuals who have been forcibly taken to the police station, with a view, in particular, to preventing self-harm.”
25. The Town Court instructed the prosecutor to carry out a further inquiry. The prosecutor lodged an appeal against the decision but subsequently withdrew it.
26. On 12 January 2006 the Pskov town prosecutor revoked the decision of 12 March 2004 and ordered an additional inquiry.
27. On 16 January 2006 the investigator Mr Ts. issued a further decision refusing to institute criminal proceedings. That decision summarised the existing evidence and reached the conclusion that:
“...During the last visit to the toilet [Mr I.] could not find – for objective reasons – any female police officers who would be free from their duties, and Ms Aleksandrovich was in the toilet alone. It follows that the fall from the window situated on the second floor of the Pskov regional police station was the result of a deliberate action on the part of Ms Aleksandrovich.”
28. A criminal case may be instituted on the basis of, in particular, a complaint or report by a citizen (Article 108 (1)) or the finding of indications of a criminal offence by an investigator or prosecutor (Article 108 (6)).
29. A prosecutor, investigator, police officer or a judge ought to receive reports about any committed or planned crime and act on them within three days of receipt or, in exceptional cases, ten days. They may obtain necessary materials or explanations but not carry out any investigative acts. They should take the decision to open a criminal case, to refuse to institute criminal proceedings, or to refer the case to the competent authority and notify the complainant thereof (Article 109).
30. A prosecutor, investigator, police officer or judge should institute a criminal case if there is a motive and grounds for opening criminal proceedings (Article 112).
31. The victim (потерпевший) shall have the right to take part in criminal prosecution of the defendant (Article 22). The decision to recognise the procedural status of a victim may be taken by an investigator or a judge (Article 42 § 1).
32. The victim has in particular the following rights: to submit statements and evidence, to take part in investigative acts which are carried out at his request, to read the findings of a forensic study, to obtain copies of decisions concerning the institution of criminal proceedings and their discontinuation or adjournment, and to participate in the trial and appeal proceedings (Article 42 § 2 (2, 4, 9, 11, 13 and 14)).
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 2
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-91447
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF EMINBEYLI v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1956 and lives in Sweden.
7. On 26 February 1996 the applicant arrived in Russia from Azerbaijan. In April 2001 he asked the St. Petersburg City Representation of the United Nations High Commissioner for Refugees to grant him refugee status. Four months later refugee status was granted and the applicant was informed of his right to move to Sweden.
8. On 10 September 2001 the acting chief of the Gyandzha Town police department of the Republic of Azerbaijan faxed a letter to the chief of the St. Petersburg City police department asking him to arrest the applicant. The letter read as follows:
“[We] seek your order to arrest a criminal, [the applicant], wanted by us for having committed a crime (theft of State property) under Article 88-1 of the Criminal Code of the Azerbaijan Republic... criminal case no. 10/295. The arrest warrant and order for transport were issued on 29 May 1995 by the first deputy military prosecutor of the Azerbaijan Republic.”
A translation of the arrest warrant of 29 May 1995 was attached to the letter.
9. On 13 September 2001 the Prosecutor General of the Russian Federation received a letter from the Moscow Regional Representation of the United Nations High Commissioner for Refugees, informing him about the applicant’s refugee status. The letter read as follows:
“The Regional Representation of the United Nations High Commissioner for Refugees in the Russian Federation applies to you in connection with the case of Mr Gunduz Eminbeyli, which was examined by the UNHCR in July 2001, as a result of which [the applicant] was granted refugee status and was considered in need of international protection under the UNHCR mandate in the territory of the Russian Federation.
In August 2001 Sweden accepted [the applicant] as a refugee with permanent leave to remain, in support of which he was given a travel document and issued with an entry visa for that country.
As it follows from the information obtained by us, a federal search warrant was issued in respect of [the applicant] on the basis of the fact that the Azeri authorities accused him of having committed criminal actions; the [accusation] prevents him from leaving the Russian Federation.
Due to the fact that [the applicant] is a proxy of the former Prime Minister of Azerbaijan, Mr S. Guseynov, who subsequently became a leader of the opposition to the Government of Mr G. Alieyev in Azerbaijan, and due to the fact that he worked with an Azeri national, Mr Z. Ismaylov, whose case was examined by the Prosecutor General’s office last summer, the UNHCR has grounds to conclude that the true reasons for the warrant issued by the Azeri authorities are [the applicant’s] work with and close ties to the above-mentioned Azeri political figures.
As we were informed by the St. Petersburg City Department of Visas and Registration where [the applicant] lives and with whom he lodged his application for a visa, the Azeri authorities lodged a request for [the applicant’s] extradition.
The UNHCR is concerned that if [the applicant] is expelled to Azerbaijan, there will be a danger of a violation of Article 33 § 1 of the UN Convention relating to the Status of Refugees... and of the Russian Law of 25 October 1999... by the Russian Federation. Article 33 of the Convention relating to the Status of Refugees forbids an expulsion of persons to a country where their lives and freedom will be threatened by a persecution on account of his race, religion, nationality, membership of a particular social group or political opinion.”
The UNHCR Representation in Moscow sent a similar letter to the St. Petersburg City Prosecutor.
10. On 19 September 2001 police officers arrested the applicant pursuant to the faxed letter of 10 September 2001 and placed him in the temporary detention unit of the St. Petersburg City and Leningrad Region Department of the Interior (ИВС при ГУВД города Санкт-Петербурга и Ленинградской области). A police investigator issued a report on the applicant’s arrest. The report represented a two-page printed template, in which the dates, the applicant’s name, and the grounds for his arrest were filled in by hand. The relevant part read as follows (the pre-printed part in plain script and the part written by hand in italics):
“I, [the police investigator], ... on the basis of the order of the prosecutor of the Republic of Azerbaijan Mr A. Aliyev., arrested an individual,[the applicant], born on 9 April 1956,...
Reasons for the arrest
Receipt of the prosecutor’s arrest warrant
The arrested is brought to the police station no. 78
For that the present report is drawn up by [the police investigator’s signature].
Signature of the arrested person [the applicant’s signature].”
The second page of the report contained information on the applicant’s body search.
11. The applicant insisted that he had not been informed about the reasons for his arrest and he had not been given a certified copy of the arrest warrant. He was later served with a translation of the warrant which was attached to the letter of 10 September 2001. The applicant further alleged that the conditions of his detention in the unit had been very poor.
12. On 20 September 2001 the Moscow Regional Representation of the UNHCR sent a letter, on the applicant’s behalf, to the head of the St. Petersburg police department, complaining about the applicant’s arrest with a view to extradition and seeking additional information on the case.
13. On 24 September 2001 the UNHCR Representation retained a lawyer, Ms O. Tseytlina, to represent the applicant. On the same day Ms Tseytlina arrived at the detention unit for a meeting with the applicant, but she was not allowed to see him. Two days later Ms Tseytlina complained to the St. Petersburg City Prosecutor that she had been barred from seeing her client.
14. On 1 October 2001 Ms Tseytlina lodged an application with the Dzerzhinskiy District Court of St. Petersburg seeking the applicant’s release and complaining that he had been unlawfully arrested and detained. A copy of the lawyer’s complaint bears the stamp of the Dzerzhinskiy District Court showing that it received the complaint on the same day it had been sent. On the following day Ms Tseytlina was allowed to visit the applicant.
15. The Government, relying on a letter issued by the deputy President of the Dzerzhinskiy District Court, submitted that on 9 October 2001 the District Court had forwarded Ms Tseytlina’s complaint to the St. Petersburg City prosecutor’s office finding that the Prosecutor General had the exclusive jurisdiction to examine extradition matters. Ms Tseytlina complained to the St. Petersburg City Court about the transfer of her complaint to the prosecution authorities. The City Court forwarded that complaint to the Dzerzhinskiy District Court. The District Court decided to examine the merits of the application for release and the lawyer’s complaints and fixed the first hearing for 20 December 2001.
16. On 5 October 2001 the Prosecutor General’s Office received a request for the applicant’s extradition from the Prosecutor General of the Azerbaijan Republic. The Azeri authorities stated that the applicant was suspected of having committed aggravated robbery with the aim of acquiring State property on 1 September 1993.
17. On 22 October 2001 the Prosecutor General of the Russian Federation, relying on Article 33 § 1 of the Convention relating to the Status of Refugees, dismissed the request for the extradition. The Prosecutor General stressed that the applicant had been granted refugee status and that he had been allowed to take up permanent residence in Sweden. The Prosecutor also noted that the St. Petersburg City Prosecutor’s office had been given an order for the applicant’s immediate release.
18. According to the Government, the Prosecutor General’s order reached the prosecutor’s office of the Tsentralniy District of St. Petersburg on 25 October 2001. The Tsentralniy District Prosecutor immediately authorised the applicant’s release.
19. On 5 November 2001 the applicant moved to Sweden.
20. On 20 December 2001 the Dzerzhinskiy District Court adjourned for one week the proceedings concerning the examination of the lawfulness of the applicant’s detention to allow the prosecutor to examine the case file. The following hearing listed for 27 December 2001 was also rescheduled for 4 February 2002 to obtain additional documents from the parties.
21. On 8 February 2002 the Dzerzhinskiy District Court dismissed Ms Tseytlina’s complaint concerning the applicant’s detention. The District Court held that the detention was lawful. The applicant was detained at the request of the Azerbaijani authorities with a view to his extradition. Criminal proceedings were instituted against him in Azerbaijan, he absconded and his arrest was authorised. The Azerbaijani authorities requested the applicant’s extradition in good time and submitted all necessary documents in compliance with the requirements of the Minsk Convention on Legal Assistance in Civil, Family and Criminal Cases of 22 January 1993. The applicant was released after the extradition request had been dismissed.
22. Mrs Tseytlina lodged an appeal statement. She complained that the applicant’s arrest had not been authorised as required by domestic law, that the faxed letter from the chief of the police department could not have served as the legal basis for the arrest, that the Russian authorities had not issued any detention order in respect of the applicant, that he had not been promptly informed about the reasons for his arrest and that there had been no legal grounds for the applicant’s detention between 22 and 25 October 2001.
23. On 26 February 2002 the St. Petersburg City Court upheld the decision of 8 February 2002. The City Court held:
“... [The applicant], having permanent residence in the territory of Azerbaijan, was placed on the inter-State wanted persons’ list by the law-enforcement organs of the above-mentioned State as a person who had absconded from investigation. His remand in custody was authorised (the detention order of 29 May 1995).
On 20 September 2001 [the applicant] was arrested on the basis of the warrant issued by the Republic of Azerbaijan with the view to his extradition in accordance with the Minsk Convention of 22 January 1993 on Legal Assistance in Civil, Family and Criminal Cases (thereafter – the Convention)...
The Azerbaijani officials had submitted the request for the [applicant’s] arrest... on 10 September 2001 and, thus, the court correctly held that the [applicant’s] detention was lawful.
...the period of [the applicant’s] detention in the temporary detention unit of the St. Petersburg City and the Leningrad Region Department of Interior amounts to thirty-five days (between 20 September and 25 October 2001) and conforms to the requirements of Article 62 § 1 of the Minsk Convention, which indicates that a person arrested pursuant to Article 61 § 1 of the Minsk Convention shall be released if no request for extradition is received within one month of the arrest. The request of the Prosecutor General of Azerbaijan for [the applicant’s] extradition was received by the Prosecutor’s General office on 5 October 2001, fifteen days after [the applicant’s] arrest in St. Petersburg.
[The applicant] was released on 25 October 2001 after the Prosecutor General of the Russian Federation ordered his release in connection with the decision refusing the request of the Prosecutor General of the Republic of Azerbaijan for his extradition.”
24. The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
25. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Azerbaijan are parties, provides as follows:
“When executing a request for legal assistance the requested authority should implement domestic legal norms. The State Party which seeks legal assistance may ask the other Party to use the legal norms of the requesting Party, if those norms do not contradict legal norms of the State Party providing legal assistance...”
“1. The Contracting Parties shall ... on each other’s requests extradite persons, who find themselves in their territory, for criminal prosecution or serving a sentence.
2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.”
“1. A request for extradition shall include the following information:
(a) the title of the requesting and requested authorities;
(b) the description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law;
(c) the [name] of the person to be extradited, the year of his birth, citizenship, place of residence, and, if possible, the description of his appearance, his photograph, fingerprints and other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal persecution shall be accompanied by a certified copy of a detention order....”
“After a request for extradition is received, the requested Contracting Party immediately takes measures to retrieve and detain a person whose extradition is sought save for those cases when the person cannot be extradited.”
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition. The petition shall contain a reference to a detention order ... and shall indicate that a request for extradition will follow. A petition for arrest ... may be sent by post, wire, telex or fax.
2. The person may also be detained without the petition referred to in point 1 above if there are legal grounds to suspect that he has committed, in the territory of the other Contracting Party, an offence entailing extradition.
3. In case of [the person’s] arrest or detention before receipt of the request for extradition, the other Contracting Party shall be informed immediately.”
“1. The Contracting Parties shall ... search for the person before receipt of the request for extradition if there are reasons to believe that this person may be in the territory of the requested Contracting Party....
2. A request for the search ... shall contain ... a request for the person’s arrest and a promise to submit a request for his extradition.
3. A request for the search shall be accompanied by a certiﬁed copy of ... the detention order....
4. The requesting Contracting Party shall be immediately informed about the person’s arrest or about other results of the search.”
“1. A person arrested pursuant to Article 61 § 1 and Article 61-1 shall be released ... if no request for extradition is received by the requested Contracting Party within 40 days of the arrest.
2. A person arrested pursuant to Article 61 § 2 shall be released if no petition issued pursuant to Article 61 § 1 arrives within the time established by the law concerning arrest.”
“The requested Party shall notify the requesting Party of the place and time of surrender. If the requesting Party does not accept the person being extradited within fifteen days of the scheduled date of surrender, that person shall be released.”
“Relations concerning extradition issues and criminal prosecution are performed by Prosecutor Generals (prosecutors) of the State Parties.”
26. The European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows:
“1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.
2. The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.”
“1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law.
...
4. Provisional arrest may be terminated if, within a period of 18 days after arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed 40 days from the date of such arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.”
27. The United Nations Convention relating to the Status of Refugees, adopted on 28 July 1951, provided as follows:
“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
28. The Federal Law “On refugees” (no. 4528-I of 19 February 1993) provided as follows:
“1. The following basic definitions are applied for the purposes of the present Federal Law:
1) A refugee is a person who is not a national of the Russian Federation and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it...
“1. A person... who is granted refugee status...cannot be expelled against his will to the territory of the State of his nationality (of his former permanent residence) if the conditions described in Article 1 § 1 (1) of the present Federal Law are still in force in that State...”
29. Article 4 of the Treaty between the Russian Federation and the Republic of Azerbaijan on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (“the 1992 Treaty”), adopted on 22 December 1992 (in force since 20 January 1995) provides that the State Parties effect legal relations through their respective Ministers of Justice and the offices of the Prosecutors General.
30. By virtue of Article 8 of the Treaty, each State Party applies its own law in order to carry out the other Party’s request for legal assistance. Only on an explicit request of another Party may a State Party to the Treaty apply another Party’s law in so far as it does not contradict the law of the latter Party.
31. Article 67 § 1 of the Treaty sets out the requirements for an extradition request. The request should contain the name of the requesting authority, an extract from the requesting Party’s law according to which an imputed act or omission constitutes a crime, the name of the person whose extradition is sought, information on his or her nationality, whereabouts, his photo and/or fingerprints where possible, and a reference to the estimation of the damage caused by the criminal offence. A certified copy of a decision on taking the person into custody with the statement of facts should be attached to the request.
32. Under Article 1 of the RSFSR Code of Criminal Procedure (the CCrP – in force at the material time) wherever a crime is committed, proceedings conducted on Russian territory are always governed by the Russian law on criminal procedure.
33. A decision to order detention can only be taken by a prosecutor or a court (Articles 11, 89 and 96 of the CCrP).
34. A prosecutor’s order or court decision ordering detention must be reasoned and justified (Article 92). The accused must be informed of the detention order and must have the procedure for lodging an appeal explained to him or her (Article 92).
35. An investigating authority should issue a report pertaining to each arrest. The report should include the following information: the grounds and reasons for the arrest, its date, time and place, the arrestee’s explanations, and the time when the report was drawn up. The investigating authority should transmit the report to a prosecutor within twenty-four hours. Within forty-eight hours following the receipt of the report, the prosecutor should authorise the person’s detention or release him (Article 122 of the CCrP).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f


ITEMID: 001-97439
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: INDEX.HU ZRT v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, INDEX.HU Zrt, is a private joint stock company with its seat in Budapest. It was represented before the Court by Mr L. Baltay, a lawyer practising in Gyál.
The applicant runs an internet-based news portal where it published the video footage of a demonstration. Several police officers – who had been filmed and whose images had been published without their consent –brought a civil-law action against the applicant before the Budapest Regional Court, requesting the court to establish an abuse of their images.
The court found for the plaintiffs on 10 November 2008. The Budapest Court of Appeal upheld this decision on 31 March 2009. The judgment was served on the applicant on 14 May 2009. It did not lodge a petition for review with the Supreme Court.
Act no. 3 of 1952 on the Code of Civil Procedure provides as follows:
“A petition for a review of the final decision by the Supreme Court may be filed, alleging a breach of the law, by any party...”
“If the [final] decision ... was in breach of the law, the Supreme Court shall fully or partially quash the unlawful decision; and if the facts of the case can properly be established on the basis of the case file, it shall give a new decision in compliance with the law, otherwise it shall instruct the first- or second-instance court in charge of the case to resume the proceedings and to adopt a new decision.”


ITEMID: 001-75650
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: DEARNLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Robert Dearnley, is a British national who was born in 1951 and lives in Guildford. The respondent Government are represented by their agent, Mr D. Walton, of the Foreign and Commonwealth Office, London.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991, the applicant and his wife entered into a form of agricultural tenancy agreement with the Guildford Borough Council which involved the applicant and his wife setting up and running a demonstration farm. Clause 13 provided that
“Any question difference or dispute which may arise between the landlord and the tenants ... not being a matter compulsorily referred to arbitration under the Agricultural Holdings Acts shall if the parties cannot settle it by agreement be referred to a single arbitrator to be appointed by the parties hereto or in default of agreement ... by the President for the time being of the Royal Institution of Chartered Surveyors on the application of the landlord or the tenants.”
After a series of disputes with the council, the applicant asked for an arbitrator to be appointed. According to the applicant, in February 1997 the President of the Royal Institute of Chartered Surveyors appointed an arbitrator. In an opinion of 18/19 June 1997, the Bar Pro Bono Unit, in stating that the case fell outside the parameters of the Pro Bono scheme, made a number of comments on the case. In particular, it noted that clause 13 of the tenancy agreement did not stipulate the Act under which the arbitration should be carried out, did not stipulate the procedure or law to be applied, and did not expressly remove the jurisdiction of the courts.
On 1 or 2 July 1997 the applicant brought proceedings against the Council in the Guildford County Court (GU 770520) for, amongst other things, misrepresentation, negligence and breach of contract. In his claim, he asked the court whether an arbitrator could consider all the points in the claim, or whether the applicant could proceed in the courts on the ground that he had entered into the contract as a result of misrepresentation or, alternatively, whether an arbitrator could deal with some claims whilst the courts dealt with the others. He also included a series of allegations of misrepresentation, breach of contract and deception and misinformation.
The court stayed the proceedings on 6 August 1997: the Government suggested that by the stay the court was declining jurisdiction over the applicant’s claims on the basis that he had agreed that those claims would be dealt with by an arbitrator. A further application by the applicant, of 11 December 1997, was dismissed on 14 April 1998, and the applicant’s appeal was adjourned on 19 October 1998 pending an application for legal aid. Leave to withdraw the appeal was granted on 3 November 1998, and on 16 June 1999 the council’s costs (which the applicant was to pay) were fixed at £2,823.90.
On 23 April 1999 the applicant and his wife and the council signed an agreement by which a series of disputes were referred to an arbitrator in accordance with the Arbitration Act 1996. The disputes were defined by reference to seven bundles. Bundle A included the matters which formed part of the applicant’s action before the county court.
Since then, it appears that the arbitrator has made two interim awards in the applicant’s favour, in February 2001 and October 2002, but that most of the matters referred to arbitration are still outstanding.
On 3 August 2002 the applicant wrote to the Guildford county court, referring to section 24 of the Arbitration Act 1996 and asking for the arbitrator to be removed. On 18 September 2002 District Judge Derbyshire declined to dismiss the arbitrator even though he accepted that the delays in the case were inexcusable. The Court has not been supplied with the judge’s reasons for that decision, although it appears from a letter from the council to the arbitrator that the judge stated that he might have been prepared to change his decision if matters did not proceed at a faster pace.


ITEMID: 001-86228
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GEORGESCU v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Preliminary objections joinded to merits and dismissed (non-exhaustion of domestic remedies, six-month period);Preliminary objection  dismissed (six-month period);Violation of Art. 3;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicant was born in 1966 and lives in Bucharest.
6. On 8 December 1995 S.M., a powerful businessman, lodged a criminal complaint against the applicant, who, between March and October 1995, had asked for 20,000 US dollars (USD) for his sick wife, and instead had used the money to buy a Mercedes and a BMW car. The applicant claimed that he was working for the Protection and Guard Service (Serviciul de Protecţie şi Pază), a state body with attributions in the field of national security, but later on the investigation showed that on 5 April 1995 he had been released from duty.
Similar complaints of fraud were made by other alleged victims of the applicant.
7. The applicant was arrested on 11 January 1996 and brought to the Bucharest District Police Detention Centre. The next day the prosecutor ordered his pre-trial detention in the same police facility.
In a statement made on 12 February 1996 the applicant informed the prosecutor that he had psychiatric problems that made him unfit for detention and therefore asked to undergo psychiatric tests (see paragraph 23 below).
8. On 4 April 1996 the Bucharest District Court rejected a request by the prosecutor for an extension of the applicant’s detention. On 8 April 1996 the applicant was released from custody.
9. On 12 June 1996 the prosecutor ordered the applicant to be remanded in custody. On 14 June 1996 he was arrested again and placed in police detention.
10. On 24 July 1996 the Bucharest County Court quashed the District Court’s decision of 4 April and extended the applicant’s pre-trial detention.
11. He was released again on 18 December 1997.
12. The parties’ submissions concerning the conditions of detention differ significantly.
13. According to the applicant, during the first four weeks of his detention he was beaten by masked police officers and by inmates, on the orders of the investigators.
14. He was woken up in the night and interrogated, under threat of death. He was forced to bend over with his hands handcuffed behind his knees. The investigators would then hang him with his head downwards from a truncheon passed between his hands and legs. He was beaten on his feet with his shoes on until he lost consciousness.
15. He was subject to the same treatment every two to four days.
16. He used to be taken to the first-floor offices and beaten over the back and head with 1.5 metre-long metal-reinforced wooden truncheons, while the investigators verbally abused him.
17. On an unspecified date an inmate called “Nelu” raped the applicant, with the help of other inmates and encouraged by the investigator. He also broke the applicant’s teeth with his fist when the applicant refused to open his mouth.
18. His inmates urinated on his food and forced him to eat it.
19. The applicant told his wife about the ill-treatment and she informed his lawyer, who managed to have the applicant moved to a different cell but the applicant was again subjected to ill-treatment by his new inmates. He was forced to squat and do push-ups all night long under the supervision of an inmate. If he refused to obey, the next day he would be beaten. He was not allowed to use the toilets but was beaten when he urinated in the cell.
20. According to the applicant, the treatment inflicted by the investigators was far worse than that he suffered at the hands of his inmates. Once he was punched in his liver by the police until he almost lost consciousness.
21. The Government denied that any ill-treatment had been inflicted on the applicant.
22. They presented a detailed report of the applicant’s detention and medical treatment, based on the prison records and medical files. According to that report, from 30 January to 9 February 1996 the applicant had shared a dormitory with twelve other detainees, including M.I.
23. From 9 to 28 February he was kept in Jilava Prison Hospital. On 22 February 1996 the psychiatric doctors from the Mina Minovici Forensic Medicine Institute examined the applicant and diagnosed him with a personality disorder. He was prescribed antidepressants. The diagnosis was confirmed by the same Institute on 8 August 1996, on the prosecutor’s request.
24. From 28 February to 1 April 1996 he was held in the Bucharest Police Detention Centre again and placed in a dormitory with ten other inmates: M.I., B.Y., T.G., C.M., G.M., V.G., L.N., P.N., V.C. and R.S.M.
25. On 1 April he was sent to Jilava Prison Hospital where he remained until 8 April. He was diagnosed with depression, anxiety and hemiplegia of the left side of his body.
26. From 14 June to 7 September 1996 he was held in the police facilities again and shared a cell with four other inmates. He spent the rest of his pre-trial detention in Jilava Prison Hospital, where he was treated for depression and a personality disorder.
27. No detainee named “Nelu” was identified by the prison authorities.
28. No complaints by the applicant concerning the conditions of detention were registered with the authorities during his detention.
29. On 16 February 1996 the applicant’s wife lodged a criminal complaint with the Military Prosecutor’s Office attached to the Bucharest County Court, claiming that her husband was being subjected to illtreatment in detention. She claimed that she had noticed marks of violence on her husband’s face on 14 February 1996 when she had visited him in the prison hospital. He had told her that he had been beaten.
30. On 15 March 1996 the applicant gave testimony before the prosecutor. The relevant parts of his statement are as follows:
“I was arrested... and put in a cell with seven other detainees for the first two-three weeks. During that time the prisoner responsible for maintaining order in the cell, a certain “Nelu”, tried to sexually abuse me. During the same period I was taken for questioning and kicked in my stomach and face; I received blows to my cheeks and was kneed... by three to four persons wearing civilian clothes and masks ... This treatment is still going on...
I should also mention that in ... 1995 I was treated for spasmophilia; in May 1995 I suffered from depression and received treatment for it ... and I was treated for anxiety.”
31. On 21 March 1996 the prosecutor took depositions from M.I. and S.C., two inmates who stated that they had shared a cell with the applicant, the first from 30 January to 1 April 1996 and the second from 7 March 1996 to an unspecified date. They both stated that the applicant had not complained of ill-treatment by investigators and had not been subjected to any violence in the cell.
32. On 4 April 1996 the Mina Minovici Forensic Medicine Institute, which had examined the applicant upon the prosecutor’s request, rendered its report, describing the applicant’s condition as follows:
“1) pale yellow ecchymoses of 6/7 cm on the right arm, at 1/3 distance from the palm, with receding contour, hard upon palpation (old haematoma, ...);
2) pale yellow zone with hyper-pigmented centre, uneven contour, ... isolated on the left arm, at approximately 1/3 distance on the front side (plaque of 5/4 cm);
3) semicircular ecchymose of 7/5 cm on the right inguinal zone (with pale yellow centre), bluish with greeny yellow margins and visible contour;
4) complains of pain in the right hypochondrium.
Palpation: liver, approximately 5 cm under the rib cage, very sensitive. Specialist examination recommended (ultrasound scan).
Conclusion: “Georgescu Florin presents injuries caused by hitting with hard objects which could have taken place 15 to 30 days before the medical examination. He would have needed 6 to 7 days’ medical treatment for his injuries.”
33. On 19 April 1996 the military prosecutor took the following decision:
1. Not to open a criminal prosecution ... as the injuries were caused by [the applicant’s] actions”...
3. To communicate the decision to the person concerned.”
34. On 24 April 1996 the military prosecutor sent the following letter to the applicant’s wife:
“The investigation showed that the facts complained about had taken place because of the conflicts between [the applicant] and his inmates, caused by [the applicant’s] mental illness. They had not been caused by the wardens.”
35. Neither the applicant nor his wife received a decision by the prosecutor.
36. On 26 August 2003, on the applicant’s request, the Bucharest Military Prosecutor’s Office informed the applicant that on 19 April 1996 the prosecutor had decided not to prosecute, as the facts complained about were not prohibited by the criminal law.
37. On 27 December 1995 the applicant gave the Bucharest Police documents required for the investigation into the allegations against him.
On 28 December 1995 his deposition was taken by the police in connection with the facts under examination. The next day the police decided to open a criminal investigation in respect of the applicant.
38. On 10 January 1996 the Prosecutor’s Office attached to the Bucharest County Court opened criminal proceedings against the applicant on various charges of forgery and abuse of official position.
39. The applicant’s testimony was heard again either by the police or by the prosecutor on 11, 12 and 30 January, 19 March, 11 June, 9 July and 15 August 1996.
From January to June 1996 several witnesses and alleged victims gave testimony in the case.
The applicant’s wife’s deposition was heard by the investigators on 27 December 1995, 5 and 31 January, 19 March and 11 June 1996.
40. On 11 January, 16 March and 6 June 1996 searches were conducted at the applicant’s home. A Mercedes and a BMW car found in his garage were confiscated and valued by an expert at USD 18,654. On 2 April 1996, with the applicant’s wife’s agreement, the two cars were given to S.M. in compensation for the damage he had sustained.
41. On 13 September 1996 the prosecutor opened a separate file for the offences allegedly committed between 28 March and 3 April 1995 and referred the case to the Bucharest Military Prosecutor’s Office, as the applicant had been a military officer during that time.
42. On 16 September the same prosecutor indicted the applicant for an act of fraud allegedly committed on 6 June 1996. On 6 October 2000 the applicant was convicted by the Bucharest District Court. This application to the Court does not concern the proceedings referred to in this paragraph.
43. Several witnesses gave testimony before the military prosecutor. On 7 December 1999 the Military Prosecutor’s Office decided not to prosecute the applicant for the offences committed before 3 April 1995 and referred the case back to the Prosecutor’s Office attached to the Bucharest County Court in respect of the offences allegedly committed between 26 June and 15 October 1995. It also noted that the applicant had tried to abscond during the investigation. On his request, the applicant was informed of this decision on 8 August 2003 but did not receive a copy of it.
44. The prosecutor attached to the Bucharest County Court opened the investigation but could not hear the applicant’s testimony before 27 June 2001, as the latter had allegedly absconded.
45. On 9 September 2002 the prosecutor at the Bucharest County Court also decided not to prosecute the applicant and made reference to the military prosecutor’s decision of 7 December 1999 concerning the same facts. However, on 23 September 2002 the Prosecutor’s Office attached to the Bucharest Court of Appeal annulled the decision and ordered the reopening of criminal proceedings against the applicant.
46. The case was referred back to the prosecutor attached to the Bucharest County Court on 26 September 2002 and from there to the police for further investigation on 6 November 2002.
47. On 10 February 2003 the applicant gave testimony.
48. On 10 March 2003 the police returned the file to the prosecutor attached to the Bucharest County Court with a proposal to indict the applicant. However, on 4 July 2003 the prosecutor closed the investigation as the case had become time-barred.
49. On 5 November 2003 the Prosecutor’s Office attached to the Bucharest County Court informed the applicant of its decision.
50. The applicant asked the Bucharest District Court to release a copy of the transcripts made during the hearing of 4 April 1996. This information was requested by the Court.
51. In a letter of 4 September 2003 the president of the District Court informed the applicant that it was impossible to obtain the document as the file was situated in the old archives which were being reorganised.
52. In 1995 the Romanian Intelligence Service requested the Prosecutor’s Office attached to the High Court of Cassation and Justice to start a criminal investigation in respect of the applicant for having allegedly blackmailed senior civil servants and businessmen between February and July 2005, pretending to be an employee of the Intelligence Service.
53. On 11 October 2005 the High Court Prosecutor’s Office relinquished competence in favour of the Bucharest County Court Prosecutor’s Office. On 24 October 2005 the latter searched the applicant’s home and confiscated several documents, including the following:
- a letter of 11 August 2003 from the Court concerning the present application;
- the medical expert report of 4 April 1996;
- the criminal complaint of 16 February 1996;
- the military prosecutor’s letter of 24 April 1996;
- copies of a letter addressed by the applicant to the Court and of a letter addressed to the Anti-Corruption National Prosecutor’s Office.
54. All these documents were returned to the applicant on 1 and 21 February 2006.
55. The applicant claimed that the investigators and the secret services had tried to intimidate him in order to make him withdraw his application to the Court.
56. The criminal proceedings against the applicant are still pending before the Bucharest District Court.
57. On an unspecified date the applicant lodged an action for compensation for illegal detention under Articles 504 and 505 of the Code of Criminal Procedure. He considered that the prosecutor’s decision to terminate the proceedings on the ground that they were time-barred had infringed his right of access to a court and had caused him additional damage in so far as it had not ordered the restitution of the two confiscated cars.
58. In a decision of 27 April 2004 the Bucharest County Court dismissed the action on the grounds that the applicant’s detention did not fall within any of the categories provided for in Article 504 of the Code of Criminal Procedure and that he had not proved ownership of the two cars.
59. The relevant provisions of the Code of Criminal Procedure and of the provisions governing the police and military prosecutor are set out in Dumitru Popescu v. Romania ((no. 1), no. 49234/99, §§ 43-46, 26 April 2007) and Barbu Anghelescu v. Romania (no. 46430/99, § 40, 5 October 2004).
60. The relevant provisions of the Criminal and Civil Codes concerning the means of obtaining compensation for alleged ill-treatment are set out in Kalanyos and Others v. Romania ((dec.), no. 57884/00, 19 May 2005).
61. In the same decision, as well as in paragraphs 43-45 of the judgment in Dumitru Popescu (no. 1), cited above, there is a description of the development of the law concerning complaints about the prosecutor’s decisions (Article 278 of the Code of Criminal Procedure and Article 2781 introduced by Law no. 281/24 June 2003 applicable from 1 January 2004).
62. For the legislation on complaints against prison staff, see paragraphs 45-48 of the judgment Vitan v. Romania, (no. 42084/03, 25 March 2008).
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4587
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KEMPTER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant, born in 1950, is a German national. He is a businessman by profession. When lodging his application, he was detained in a prison at Landsberg/Lech.
In October 1991 criminal proceedings were commenced against, inter alia, the applicant on charges of drug trafficking. In these proceedings, he was assisted by defence counsel.
The applicant was arrested on 2 November 1991 on the basis of an arrest warrant issued by the Munich District Court (Amtsgericht) on 31 October 1991 and taken into detention on remand. His detention was suspended on 24 February 1992. On 3 March 1992 he was again arrested and detained on remand until 23 March 1993.
On 24 April 1992 the Munich Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageerhebung) against the applicant. He was charged with two counts of drug trafficking.
On 8 October 1992 the Munich I Regional Court (Landgericht) partly rejected the indictment. It refused in particular to open the trial proceedings as to one count of drug trafficking. The court considered that, having regard to the evidence presented by the Prosecutor’s Office, there was not sufficient suspicion to justify committing the applicant for trial. On 5 April 1993 the Munich Court of Appeal (Oberlandesgericht), on the Public Prosecutor's appeal, committed the accused for trial on all counts. It further directed that the trial was to open before the Regional Court.
On 28 March 1995 the Munich I Regional Court, following trial hearings between January and March 1995, convicted the applicant of one count of drug trafficking. Having regard to two previous convictions, it fixed a cumulative sentence of three years and six months' imprisonment. The court found in particular that the applicant and his co-accused had sold cocaine to an undercover agent of the German police. The Court considered that their defence, namely that they had themselves intended to arrange for a fictitious deal and the subsequent prosecution of the purchaser, was in itself inconclusive and refuted by the evidence. The applicant's contacts with the police authorities had only served the purpose of finding out whether the purchaser was an undercover agent. Medical expert evidence had confirmed the applicant's full criminal responsibility.
On 28 November 1995 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal on points of law. In his statement of appeal, the applicant’s counsel had complained about the violation of substantive law in general and also about a point of procedural law, namely the alleged taking into account of evidence not produced at the trial. The applicant’s request for leave to file supplementary reasons out of time was rejected on the ground that he had failed to submit these reasons together with his request. The applicant received the decision on 7 December 1995.
Sitting as a panel of three members, on 16 January 1996 the Second Chamber of the Second Division (zweite Kammer des Zweiten Senats) of the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant's constitutional appeal of 17 December 1995.