ITEMID: 001-78787
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: S.A. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Ms S.A., is a citizen of Afghanistan who was born in 1980 and lives in the Netherlands. She was represented before the Court by Ms J.A. Younge, a lawyer practising in Haarlem.
In 1996, the applicant married her cousin F. The couple remained childless. In 2001, the applicant and her husband fled from Afghanistan to the Netherlands where they applied for asylum on the basis of the husband’s alleged problems with the Taliban. On 26 March 2001, an immigration official held a first interview (eerste gehoor) with the applicant in connection with her asylum request. A further interview (nader gehoor) was held on 27 July 2001. The applicant, who had been assisted by an interpreter during both interviews, availed herself on 14 August 2001 and 27 November 2002 of the opportunity to submit written comments on the records that had been drawn up of these interviews. As from an unspecified date, the applicant’s husband started to receive medical treatment for a posttraumatic stress disorder.
In March 2002, the applicant gave birth to a child, whose physical features (complexion and hair) were alleged to be markedly different to those of the applicant and her husband.
On 26 February 2003, in view of the changed situation in Afghanistan, an additional interview (aanvullend gehoor) was held with the applicant who was assisted by an interpreter. On 13 March 2003, the applicant submitted written comments on the record drawn up of this additional interview.
On 4 April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to reject the applicant’s asylum request. The applicant submitted her views (zienswijze) on this intention on 28 April 2003.
On 3 June 2003, the Minister for Immigration and Integration rejected the asylum request filed by the applicant and her husband. On 30 June 2003, the applicant and her husband filed an appeal against this decision with the Regional Court (arrondissementsrechtbank) of The Hague.
On 18 October 2004, a staff member of a Netherlands refugee aid organisation informed the applicant’s lawyer by way of a written memorandum that, in a recent conversation with this staff member, the applicant had said that her husband was not the father of her child and that he did not know this. Fearing to be sent back to Afghanistan where she risked to be killed if this became known – which was probable –, she had now decided to confess to it. She had not dared to tell her husband, but because the situation had become untenable she was planning to do so on 14 November 2004 when she and her husband would have a meeting with a mental health care counsellor. This document does not contain any mention of the child’s physical features.
By letter of 28 October 2004, the applicant’s lawyer transmitted the written memorandum of 18 October 2004 to the Regional Court, submitting that also for this reason the applicant risked exposure to treatment contrary to Article 3 of the Convention if expelled to Afghanistan. The lawyer’s submissions were transmitted to the Minister who filed written comments in reply with the Regional Court on 2 November 2004.
On 11 November 2004, a hearing on the appeals filed by the applicant and her husband was held before the Regional Court. This hearing was attended by the applicant and her husband, who were assisted by an interpreter.
On 14 November 2004, in the presence and under the guidance of a mental health counsellor, the applicant informed her husband of the origins of the child. According to the applicant, her husband was obviously very upset but he refused to give any reaction. During the following months, he was under heavy medication (sleeping medication and tranquillizers), and did not speak with or touch the applicant. He further completely neglected the child since 14 November 2004 whereas before that date he had given the impression of simply not knowing what to do with a child in general in that he did not touch or mind the child very much.
On 3 February 2005, the Regional Court rejected the appeals filed by the applicant and her husband. As regards the applicant’s submissions in relation to her child, the Regional Court held that these personal circumstances which had only been raised for the first time in the proceedings on appeal could not be regarded as new facts and circumstances having arisen after the taking of the impugned decision and which should be taken into account under section 83 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000), in that the applicant should have raised these circumstances at an earlier stage in the proceedings. It further held that it had not been argued and that it had not appeared that there were special circumstances on the basis of which this could not have been done earlier.
On 3 March 2005, the applicant and her husband filed an appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). In these appeal proceedings, the applicant submitted that the child had been born after a fleeting sexual encounter she had had in the asylum seekers reception centre where she and her husband had stayed shortly after their arrival in the Netherlands, and that, as the child grew older, gradually more and more clearly different racial characteristics became noticeable, as a result of which the child obviously bore no resemblance to either the applicant or her husband.
The appeal filed by the applicant and her husband was dismissed by the Administrative Jurisdiction Division on 19 July 2005. It upheld the Regional Court’s judgment. As regards the applicant’s submissions relating to her child, it held:
“2.1.1. Pursuant to section 83 § 1 of the Aliens Act 2000, the court shall, in the determination of the appeal, take into account facts and circumstances having arisen after the taking of the impugned decision.
2.1.2. As the Administrative Jurisdiction Division has held previously (ruling of 24 September 2003 in case no. 200304820/1; JV 2003/501), this provision is aimed at preventing that repeated requests [for a residence title] must be filed in case of relevant circumstances having emerged after the [taking of the] impugned decision but before the ruling [on appeal] and entails that the determination of the question whether there are such facts and circumstances must be made on the basis as the same criteria as under section 4:6 § 1 of the General Administrative Law Act (Algemene Wet Bestuursrecht). According to the case-law, under newly appeared facts or altered circumstances – in so far as relevant for now – must be understood facts or circumstances having taken place after the taking of the earlier decision or which could not and, noting section 31 § 1 of the Aliens Act 2002, therefore should not be submitted before the taking of that decision.
2.1.3. As also held by the Division in that ruling, the alien who asks for protection must – even where it concerns a forced return to a country where there allegedly exists a risk of treatment in breach of Article 3 of the Convention – as a rule comply with procedural requirements under domestic law, including section 83 of the Aliens Act 2000, which [requirements] enable the national authorities to determine requests for a residence permit in an orderly manner and only under special, to the individual case relating facts and circumstances, may a necessity arise not to hold a failure to respect these rules against the person concerned.
2.1.4. The Regional Court has not taken into account under section 83 § 1 of the Aliens Act 2000 the personal circumstances only submitted on appeal by the appellant, because it found that the appellant could and therefore should have submitted those circumstances earlier and that no special circumstances had appeared justifying that this not be held against her.
2.1.5. By letter, received at the Regional Court on 27 October 2004, the appellant has submitted a record of 18 October 2004 on a conversation between a collaborator of the Dutch Refugee Council (Vluchtelingenwerk) Drenthe and the appellant concerning personal circumstances in relation to her child born on ... March 2002.
2.1.6. The applicant has thus after the taking of the decision of 3 June 2003 submitted for the first time circumstances in relation to her child that had taken place before that decision was taken. It has not been argued that the thus submitted circumstances were not known to her at the time when this decision was taken. The Regional Court has correctly considered that the appellant, also in view of the provisions of section 31 § 1 of the Aliens Act 2000, should have raised those circumstances earlier in the proceedings. The Regional Court has further correctly found no reasons in what has been put before it in this respect for finding that this could nevertheless not be asked from the appellant.
The Regional Court has correctly found that the circumstances submitted by the appellant in relation to her child were not facts or circumstances within the meaning of section 83 § 1 of the Aliens Act 2000.
2.1.7. Neither can the applicant’s submissions to the Regional Court be regarded as special facts and circumstances relating to the individual case, on which basis the Regional Court ought not have held this national procedural rule against the appellant.”
No further appeal lay against this ruling. To date, the applicant’s husband has not taken any initiative from which it could be concluded that he is considering a separation, divorce or to challenge his paternity of the child.


ITEMID: 001-89792
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: COURTEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Andrew Courten, is a British national who was born in 1957 and lives in London. He is represented before the Court by Mr P. Hamlin, a solicitor practising in London.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant first met his long-term partner, Mr Stanley, in October 1978 and they began living together shortly afterwards. They took the decision that all income and assets would be jointly owned. In 1984 they purchased a property which they owned as joint tenants and shared the mortgage payments. In 2003 they celebrated 25 years together.
On 1 January 2005 Mr Stanley died suddenly.
On 21 April 2005 the applicant wrote a letter to the Inland Revenue (later renamed HMRC) asking for an extra-statutory tax concession equivalent to the exemption from inheritance tax which a spouse would have received under section 18 of the Inheritance Tax Act 1984 (“ITA”).
By letter dated 22 June 2005 the Inland Revenue informed the applicant that the exemption under section 18 was not available and referred him to the case of Holland v. IRC ([2003] STC (SCD) 43) in which the section 18 exemption was refused to an unmarried heterosexual co-habiting couple.
By letter dated 25 July 2005, the applicant distinguished the Holland case by pointing out that he and his partner, unlike heterosexual co-habitees, had been unable to marry and had been denied access to any right to exemption. He submitted that the refusal to extend the exemption to a same-sex cohabiting couple that had been prohibited from marrying was contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
On 28 July 2005 the HMRC sent the applicant a Notice of Determination indicating that the Commissioners had determined that section 18 did not apply to his estate.
On 24 August 2005 the applicant gave notice that he intended to appeal to the Special Commissioners for Revenue and Customs, invoking inter alia Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
On 12 January 2006 the applicant was advised by leading counsel, Lord Lester Q.C., that his appeal had no reasonable prospect of success under the Human Rights Act 1998 since it was not possible, in the light of the decision of the House of Lords in R (Wilkinson v IRC) ([2005] 1 WLR 1718) for section 18 to be construed so as to comply with the Convention or for HMRC to grant to him an extra-statutory concession equivalent to the statutory exemption.
The applicant stated that he had been assessed as liable to pay a sum in excess of GBP 475,000 in respect of Mr Stanley’s share of their jointly-owned assets, including their home.
See the Relevant Domestic Law, as set out in Burden v. the United Kingdom [GC], no. 13378/05, §§13-24, ECHR 2008-...).


ITEMID: 001-90049
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BELASHEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1961 and lived until his arrest in Moscow.
6. On 1 April 1997 a statue of Russia’s last Tsar, Nicholas II, was blown up near the village of Tayninskoye in the Mytishchi District of the Moscow Region.
7. On the same day the mass media reported that an organisation called “The Revolutionary Military Council” («Революционный Военный Совет» – hereafter “the RMC”) had claimed responsibility for the destruction of the monument. In the morning of 6 July 1997 newspapers published a statement by the RMC, which claimed that its members were planning to perform “a conditional destruction” of the statue of another Russian Tsar, Peter the Great. According to the RMC, packets of plastic explosives had been planted inside the statue to protest against plans to bury Bolshevik leader Vladimir Lenin’s body. The RMC had planned to explode the bombs at about 6 a.m. but had eventually dropped its plans for fear of injuring innocent victims.
8. Responding to the RMC’s warning, the police found seven explosive devices planted under Peter the Great’s monument near the Kremlin in Moscow. On 6 July 1997, following the discovery of the explosive devices, the Moscow Investigation Department of the Federal Security Service (“the FSB”) instituted criminal proceedings.
9. According to the applicant, since 15 July 1997 he and his wife had been under surveillance by the FSB.
10. On 22 April 1998, at about 9.40 a.m., a group of armed FSB officers arrested the applicant in his office in the Main Department for the Fight against Organised Crime of the Ministry of Internal Affairs of the Russian Federation and brought him to the FSB Investigation Department in Moscow where he was questioned about his participation in the bombings on 1 April and 6 July 1997. An investigator apprised the applicant of his rights as a defendant, including the right to remain silent, and insisted that the applicant should not testify. However, the applicant considered that his silence could be interpreted as “a confession” and decided to make a statement. He claimed that he had nothing to do with the bombings.
11. On the same day the applicant was charged with terrorism and unlawful production of weapons and explosive devices. His detention on remand was authorised and he was escorted to the Lefortovo remand prison, run by the Federal Security Service. The applicant’s detention was subsequently extended on several occasions. His office and flat were searched and his personal belongings and money were seized.
12. On 29 October 1998 the applicant was additionally charged with organising a criminal undertaking, abuse of position, unlawful possession of weapons, abetting forgery of documents and actions aimed at a violent overthrow of the State.
13. On 2 February 1999 the pre-trial investigation was completed and the applicant and his lawyers were granted access to the case file. They finished examining the file on 22 July 1999.
14. On 3 August 1999 a deputy prosecutor of Moscow approved the bill of indictment and the case file was sent to the Moscow City Court for trial.
15. On 23 August 1999 the Moscow City Court fixed the first hearing for 6 September 1999. That hearing was postponed until 4 October 1999 because the presiding judge was involved in other unrelated proceedings. The following two hearings were adjourned because a co-defendant, M., failed to attend.
16. On 12 October 1999 the Moscow City Court remitted the case to the Moscow Prosecutor’s office for additional investigation. The City Court held that the investigating authorities had violated the right of the applicant’s co-defendant to present his defence. That decision became final on 18 November 1999, following an appeal to the Supreme Court of the Russian Federation.
17. On 6 January 2000 the FSB Investigation Department in Moscow received the case file. On the same day the applicant was released on his own recognisance.
18. On 17 May 2001 the new round of pre-trial investigation was completed. Between 24 May and 23 August 2001 the applicant and his lawyers studied the case file. On 31 August 2001 the Moscow Prosecutor approved the bill of indictment and the applicant was committed to stand trial before the Moscow City Court. According to the Government, the case file contained information classified as State secrets.
19. On 17 September 2001 the Moscow City Court, relying on Article 18 of the RSFSR Code of Criminal Procedure and without giving any reasoning, decided to hold the trial in camera. The City Court also dismissed the applicant’s request for a jury trial because other defendants had objected to that request.
20. Between 17 September and 17 December 2001 no hearings were held because the presiding judge, Ms L., was involved in other unrelated proceedings.
21. On 17 December 2001 the Moscow City Court appointed a new presiding judge, Ms K., and two lay judges, Ms L. and Ms C., to sit in the applicant’s case. According to the applicant, he unsuccessfully asked the City Court to hear a Mr G., who allegedly could have testified that the applicant had not been aware of the RMC’s activities.
22. At the hearing on 25 December 2001 the applicant and his lawyer asked the City Court to open the trial to the public. As shown in a copy of the court hearing record, submitted by the Government, the prosecutor objected, noting that the mass media had already misrepresented the facts in the case, that separate criminal proceedings were pending against another defendant and that the case file contained classified information. The City Court dismissed the applicant’s motion, holding as follows:
“... the court does not find grounds for accepting [the motion] because the decision to hold the trial in camera does not violate the requirements of Article 18 of the RSFSR Code of Criminal Procedure and because the examination of the case in camera will guarantee security to the victims, witnesses and other parties to the proceedings, taking into account the character of the charges.”
23. No hearings were held between 1 January and 25 March 2002 because the applicant’s co-defendants and their lawyers were ill. The Government noted that during that period the proceedings were also stayed for seven days because the applicant’s lawyer was ill.
24. On 19 April 2002 the Moscow City Court found the applicant guilty as charged and sentenced him to eleven years’ imprisonment. According to the applicant, the judgment was not pronounced publicly. The Government submitted a videotape containing news reports by three major TV companies, ORT, TVTS and NTV, which had covered the story on the applicant’s trial. The TV reports showed a crowded courtroom during the footage of the pronouncement of the judgment. It appears that a number of reporters and persons supporting the applicant and his co-defendants were present when the judgment was pronounced.
25. The applicant and his lawyers appealed against the conviction, arguing, in particular, that the trial had been held in camera although no evidence examined by the City Court could have been considered to contain State secrets.
26. On an unspecified date the Supreme Court of the Russian Federation scheduled an appeal hearing for 26 February 2003. The applicant alleged that he had not been allowed to have a meeting with his lawyer before the appeal hearing and that he had only been notified of that hearing twenty minutes before it had started. As shown in material submitted to the Court, on 18 February 2003 the lawyer visited the applicant and notified him that the appeal hearing had been listed for 26 February 2003. On 18 February 2003 the applicant’s lawyer lodged with the Supreme Court an amendment to the statement of appeal.
27. On 26 February 2003 the Supreme Court held the appeal hearing by way of video conference. The applicant was represented by two counsels, Mr V. Chernikov and Mr G. Zhuravlyov. At the beginning of the appeal hearing the presiding judge read out a letter addressed to the Supreme Court by a co-defendant of the applicant, Mr S. The latter alleged that the applicant had threatened him and his family members and that Mr V. Chernikov had represented Mr S. at the trial and, thus, should not have acted as the applicant’s counsel. The Supreme Court dismissed Mr V. Chernikov from the proceedings.
28. On the same day the Supreme Court delivered the judgment. It excluded the charge of forgery of documents because the statutory limitation period had expired, upheld the remaining conviction and reduced the applicant’s sentence by six months. In response to the applicant’s complaint about the trial in camera, the Supreme Court noted only that the proceedings had been held in accordance with the requirements of Article 18 of the Code of Criminal Procedure.
29. The applicant alleged that from the day of his arrest on 22 April 1998 until his release on 6 January 2000 he had been detained in appalling conditions in the Lefortovo remand prison. On a number of occasions he was placed in a solitary confinement cell. Warders often humiliated and threatened him.
30. On 19 April 2002, at about 11.30 p.m., the applicant was taken to detention facility no. IZ-77/3 (commonly known as “Krasnaya Presnya”) in Moscow. He remained in that facility until 11 April 2003 when he was transferred to a correctional colony in the Ryazan Region.
31. According to certificates issued on 1 June 2006 by the director of the facility and produced by the Government, from 19 to 23 April 2002 the applicant was kept in cell no. 11 which measured 12.8 square metres and accommodated 3 inmates. After 23 April 2002 he stayed in cells nos. 523 and 524 which measured 32.8 square metres. The cells had 24 sleeping places and housed from 16 to 21 detainees. The Government further submitted that at all times the applicant had had an individual bunk and bedding.
32. The applicant did not dispute the cell measurements. He alleged, however, that he had shared cell no. 11 with three detainees and that bigger cells had housed 30 to 40 inmates. At some point, for two weeks the applicant shared a cell with 47 other detainees. Given the lack of beds, inmates had slept in shifts. No bedding or blankets were provided.
33. The Government, relying on the information provided by the director of the facility, submitted that all cells were equipped with a lavatory pan, a tap, a sink and ventilation shaft. The lavatory pan was separated from the living area by a one-metre-high partition. Cell no. 11 had a window which measured 94 centimetres in length and 89 centimetres in width. The bigger cells had two windows with the same measurements. The windows had a casement. Inmates could request warders to open the casement to bring in fresh air. However, until the end of 2002 the windows were covered with metal shutters blocking access to natural light and air. The cells were equipped with lamps which functioned day and night. Inmates were allowed to take a shower once a week for fifteen minutes. The cells were disinfected once a week. A central-heating system was installed in the building. The Government further stated that the applicant was given food three times a day “in accordance with the established norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. The applicant had at least a one-hour walk daily.
34. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. On his admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy. On 18 October 2002 the applicant complained to the prison doctor of a severe skin itch. The doctor diagnosed dermatitis and prescribed treatment. On 20 January 2003 the applicant again complained of skin rash on the back, stomach and hips and was diagnosed with disseminated dermatitis and scabies. He was transferred to the venereal department of the facility hospital, where he was treated for ten days. The Government gave a detailed description of the treatment administered to the applicant, including the type of medicine, dose and frequency. They also furnished a copy of the applicant’s medical record and medical certificates.
35. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. The applicant pointed out that the Government did not dispute that the blinds had only been removed some time at the end of 2002, that is after he had already been detained in that facility for more than seven months. It was impossible to take a shower as inmates were afforded only fifteen minutes and two to three men had to use one shower head at the same time. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was separated from the living area by a partition affording no privacy to inmates. No toiletries were provided. The food was of poor quality and in scarce supply. The applicant further argued that he had not been adequately treated after he had been discovered to be suffering from skin diseases. His skin condition deteriorated so severely that he was transferred to the prison hospital. Following several complaints to various officials, the applicant started to receive treatment. The applicant further alleged that he had not been allowed to have meetings with his wife and child.
36. In 1998, 2000 and 2001 newspapers published a number of articles covering criminal proceedings against the applicant. He was called “a criminal” and “a terrorist” in the articles.
37. In 1998 a press office of the FSB Moscow Department held two press conferences. Another press conference was held by a higher ranking FSB official, Mr Z. At the press conferences officials described the applicant as “a criminal who had committed the offence”. Mr Z. also gave an interview to a TV company. During that interview Mr Z. called the applicant “a perpetrator” and “a criminal”.
38. Article 18 of the RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) provided for public hearings in all cases “unless the interests of the protection of State secrets required otherwise”. A hearing in camera was also allowed on the basis of a reasoned court decision in cases concerning crimes committed by individuals under the age of 16, in cases concerning sexual criminal offences, and in other cases in order to prevent dissemination of information on the intimate spheres of lives of persons participating in such cases. Pronouncement of a judgment was to be made publicly in every case.
39. The Constitution of 12 December 1993 provides:
“3. Laws shall be officially published. Unpublished laws are not to be applied. No legal acts interfering with the rights, freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available”.
“4. Everyone has the right to freely search, obtain, impart, generate and disseminate information by all lawful means. The list of information constituting State secrets shall be laid down in a federal law.”
40. On 21 July 1993 the State Secrets Act (Law no. 5485-1) was enacted. Section 5 provided as follows:
“The following information may be classified as a State secret:
(1) information in the military field...
(2) information in the field of the economy, science and engineering...
(3) information in the field of foreign policy and trade:
(4) information in the field of intelligence and counter-intelligence services and investigating activities...”
41. Section 9 described the procedure for classification of information as State secrets. Authority to classify information was delegated to the heads of State agencies. The Act did not contain a list of such officials, which was to be approved by the President. The President was also to approve a List of information classified as State secrets, which was to be officially published.
42. On 20 December 1995 the Constitutional Court examined the compatibility of the State Secrets Act with the Constitution and found as follows:
“4... The State may classify as State secrets information in the field of defence, economic and other activities, disclosure of which may undermine national defence and the security of the State. In this connection Article 29 § 4 of the Constitution provides that the list of information constituting State secrets is to be adopted in the form of a federal law. The State may also determine provisions and measures for the protection of State secrets, including by means of establishing criminal liability for its disclosure and communication to a foreign State.
....
The requirements of Article 29 § 4 of the Constitution are fulfilled by the State Secrets Act of 21 July 1993, which defines the concept of State secrets and indicates the information that may be classified as State secrets.”
43. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
44. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows:
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
...
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
...
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77537
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PALUSINSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Robert Palusiński, is a Polish national who was born in 1963. He is a writer, translator and publisher and lives in Cracow. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 the applicant published a book called “Narcotics – A guide” (Narkotyki – przewodnik). The book had the following subtitle: “Part 1: Soft drugs. Marijuana – LSD-25 – Mushrooms. History – Production – How to use – Effects – Dangers.”
The book opened with the following introduction:
“From the author:
I am aware of the fact that among persons knowledgeable on the subject, the use of the word ‘narcotics’ in the title may be controversial because of the complexity surrounding the meaning of that word. I would therefore like to add the following explanation.
The word ‘narcotics’ actually means agents used in surgical anaesthetics and in painkillers not used in surgery (for example, morphine). However, in common parlance it is understood much more widely, probably because an appropriate term, akin to the English ‘drugs’, for instance, has not been established in the Polish language. I think that the broad meaning given to the word ‘narcotics’ in common parlance stems from the publication ‘Narcotics and the unwashed soul’ by S.J. Witkiewicz, and from the way the word is currently used by the media.
Probably the most appropriate title for this book would be: ‘Psychosocial implications of the pharmacodynamics of psychoactive agents and their neurophysiological, cultural, qualitative and quantitative determinants.’ However, in my view this title is slightly too long for a book aimed at the general public.
At the same time, I would like to state that it is not my intention in any way to solicit, encourage or propagate the use of psychoactive agents.
The aim of this publication is to fill the alarming void which exists in our country resulting from widespread ignorance and lack of knowledge about the basic issue referred to (mistakenly and often improperly) as drug addiction.”
The book was divided into the following chapters:
On the back cover of the book the applicant included a quotation that began as follows:
“People do not take drugs because they are bad. They do not take drugs out of perversity. They take them because the drugs make them feel good. Very good indeed.”
The quotation was attributed to Mr J.C. Flynn, a professor at Baylor University in Texas.
On an unspecified date in 1995 the Rzeszów district prosecutor started an investigation into allegations that the applicant’s book contained instructions on the production and use of drugs. The prosecutor appointed experts to assess the content of the book.
On 7 June 1995 the district prosecutor charged the applicant under section 32 of the Prevention of Drug Addiction Act 1985 with inciting readers of his book to use drugs.
On 28 September 1995 the applicant was indicted before the Cracow District Court.
On 25 January 1996 the applicant was tried by the CracowŚródmieście District Court. He was convicted as charged and sentenced to a fifteenmonth prison term suspended for two years and a fine of 2,000 Polish zlotys (PLN). The court gave the following reasons for the applicant’s conviction:
“In view of the evidence before it the Court considers that there can be no doubt as to Robert Palusiński’
Between September 1994 and June 1995 R. Palusiński published his book entitled ‘Narcotics – A guide – Part 1: Soft drugs’. He distributed the book throughout the country. One of the reasons the defendant wrote the above book was for financial gain. This was admitted by the defendant, who said that all economic activity was aimed at financial gain.
The defendant also acted in pursuit of personal goals since he published his book and sold it throughout the country, presenting it as his contribution to the discussion concerning the legalisation of narcotics, in an attempt to establish himself as a published author.
The defendant referred in his book to his own claims as well as citing numerous quotations from Polish and foreign publications. In the same vein, he intentionally selected information in support of his claims designed to create the impression not just that the narcotics described were not dangerous, but that taking them benefited human mental and physical health. In order to achieve this aim, the defendant omitted numerous pieces of information which were known to him and which showed the harmful influence of these psychoactive agents on the human body.
Another fact which it is important to point out is that the defendant addressed his book mainly to young people, as demonstrated by the quotation printed on the back cover. The Court considers that reading this quotation in a bookshop is liable to make a potential reader interested in the content of the book.
The Court is of the view that the aim of the message contained in the book was to persuade ... readers to try out one of the narcotics described therein when the opportunity arose. In order to achieve this aim, the defendant sought to break down the psychological barriers normally encountered by reasonable individuals by choosing his words carefully, using analogies, outlining what he saw as the numerous qualities and advantages for the prospective consumer, and hiding or referring only in general terms to several dangerous consequences of drug use. No individual knows himself sufficiently well to be certain whether and how a certain narcotic may influence his psyche.
The book in question was intended to be read in particular by young people. It is widely known that different types of narcotics, including those described by the defendant, are trafficked among high-school students and even among older pupils in primary schools. Moreover, it is known from radio, television and the press that the narcotics described by the defendant are taken by people, some of them teenagers, at private social events and in discotheques. Experience and observation of the environment tell us that persons of such a young age have not developed the necessary degree of self-criticism to allow them to approach the content of Robert Palusiński’s book with the required objectivity.
The Court considers that the average reader will not analyse in depth the philosophical content of the book, but will remember simple facts designed to show that the narcotics described bring immediate pleasure and unforgettable experiences – including experiences of a religious nature – and, more importantly, that taking the doses suggested by the defendant ... will not have any negative consequences for life and health.
The Court considers, therefore, that the approach taken by the defendant, consisting of publishing selected information, was aimed at inducing and making it easier for readers to take the narcotics described.
The defendant published detailed information in his book on how to obtain ingredients and prepare them. He also gave instructions on the doses to be taken and described the states of mind which might be experienced. His actions were therefore aimed at making it easier for the reader to use narcotics.
The defendant did not deny that access to narcotics in Cracow was very easy. It is well known from the media that there are places where almost anyone who wants to experiment with a chosen narcotic may buy it. In the context of this widely known information, the defendant advised readers to buy ingredients from verified sources.
The Court is of the view that the average young person, after reading the book, buying narcotics and, under the influence of the book, forgetting his or her fears and apprehensions, is liable to decide unhesitatingly to take the narcotics. After reading the book he would feel certain that he was unlikely to become addicted and that he would not experience any negative effects, while being able for many years to experience new states of mind without fear.
In view of the above, the Court has come to the conclusion that the actions of the defendant, Robert Palusiński, fit the characteristics of the misdemeanour described in section 32(1) of the Prevention of Drug Addiction Act of 31 January 1985. ...
When sentencing the defendant, the Court took into account, as a factor counting against him, the significant degree of social harm which could be caused by his actions in the context of increasing drug addiction among young people.
The Court also took into account the following circumstances in the defendant’s favour: the fact that he had no criminal record, the positive opinion of his neighbours and the fact that only 2,780 copies of the book had been printed, making it less accessible to potential readers in Poland.
In sentencing the defendant the Court further took into account the profit he made from the sale of the book, his ability to earn a living and the fact that he has to support a wife and two children.
In view of the above-mentioned circumstances in the defendant’s favour, his personal circumstances and his lifestyle, which justify the assumption that he will comply with the law and will not reoffend, the Court has decided to suspend his sentence. ...”
The applicant appealed against his conviction but the appeal was dismissed by the Cracow Regional Court on 30 April 1996. The appellate court fully subscribed to the District Court’s findings and agreed that the book was actually a “guide for drug addicts”. The court was of the opinion that the introduction to the book, in which the applicant denied his “intention in any way to solicit, encourage or propagate the use of psychoactive agents”, was in complete contradiction to the content of the book. The court also relied on the opinions of two experts who considered the book to be “a set of instructions for drug addicts [and] incitement to the use [of drugs]” given that the applicant was of the view that narcotics were “less harmful [than generally assumed] or not harmful at all”.
On 19 August 1996 the applicant lodged an appeal on points of law with the Supreme Court. Between 19 August 1996 and 14 March 2001 the case lay dormant before the Supreme Court.
On 15 March 2001 the Supreme Court dismissed the applicant’s appeal on points of law. It followed the lower court’s findings and agreed with its opinion that the applicant’s book incited readers to use drugs and facilitated the taking of drugs by young people.
Article 14 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states:
“The Republic of Poland shall ensure freedom of the press and other means of social communication.”
Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:
“The freedom to express opinions and to acquire and disseminate information shall be secured to everyone.”
For more details on the constitutional provisions, see Pachla v. Poland (dec.), no. 8812/02, 8 November 2005.
Section 32(1) of the Prevention of Drug Addiction Act of 31 January 1985 reads as follows:
“Anyone who, for financial gain or in pursuit of personal goals, provides another person with narcotic or psychotropic products, facilitates their use or incites others to use them, shall be liable to a term of imprisonment of between one and ten years.”
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) came into force. It lays down various legal means designed to counteract and/or afford redress for the undue length of judicial proceedings. For a more detailed exploration of the relevant domestic legal provisions, see Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005-V.
Section 2 of the 2004 Act reads, in so far as relevant:
“(1)
Section 18 lays down transitional rules in relation to applications already pending before the Court. It reads, in so far as relevant:
“(1) Within six months of the date of entry into force of this Act persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to trial within a reasonable time guaranteed by Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms ... may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this Act if their complaint to the Court was lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.”


ITEMID: 001-97299
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ATEŞSÖNMEZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 3. The applicant was born in 1947 and lives in Istanbul.
4. Following the privatisation of the public institute where he was employed as an inspector, on 19 March 1999 the applicant was appointed to a new post at the Social Security Institution for the SelfEmployed (BağKur).
5. On 16 April 1999 the applicant brought a case before the Ankara Administrative Court against the Prime Minister's Office and Bağ-Kur to challenge his appointment.
6. On 2 December 1999 the administrative court dismissed the applicant's request, holding that his appointment had been effected in accordance with the relevant domestic law.
7. On 14 October 2003 the Supreme Administrative Court upheld the decision of the administrative court and on 1 February 2006 it rejected the applicant's rectification request.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89287
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF JANULIS v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security;Violation of Article 8 - Right to respect for private and family life
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicant was born in 1974 and lives in Ostróda.
7. The applicant was arrested on 26 March 2002 at 4 p.m. On the same day the Olsztyn District Court (Sąd Rejonowy) remanded the applicant in custody until 26 June 2002 in view of the reasonable suspicion that, together with three other suspects, he had stolen several cars. It also considered that keeping the applicant in detention was necessary given the risk that he might obstruct the proceedings; the court did not, however, state its reasons for taking such a view. It also stressed the severity of the anticipated sentence.
8. The applicant’s appeal against the detention order was unsuccessful, as were his further appeals against decisions extending his detention and his applications for release. His detention was extended on several occasions by the Olsztyn District Court (decisions of 20 May and 23 August 2002, 4 and 14 February 2003 and 14 May 2003) and his appeals against extension were dismissed by the Olsztyn Regional Court (decisions of 26 April 2002, 17 January and 23 May 2003, 6 June 2003 and 16 April 2004). In all these decisions the courts relied on the original grounds given for the applicant’s detention or simply found that the reasons for his continued detention given in their previous decisions “were still relevant”.
9. On 27 September 2002 the first hearing took place. Evidence was heard from the applicant and his co-accused. The applicant behaved in an arrogant and disorderly manner and was expelled from the court room. Consequently, the hearing had to be adjourned and no witness evidence was heard that day.
10. On 14 February 2003 the Olsztyn District Court sentenced the applicant to ten years’ imprisonment. On the same day the Olsztyn District Court extended the applicant’s detention until 14 May 2003.
11. The applicant and two of his co-accused lodged appeals against the firstinstance judgment.
12. On 15 October 2003 the Olsztyn Regional Court heard the appeals, quashed the firstinstance judgment and remitted the case for retrial.
13. In the retrial proceedings the applicant unsuccessfully appealed against further decisions extending his detention. The relevant decisions on extension of his detention were given by the Olsztyn District Court and the Olsztyn Regional Court. The courts again relied on the grounds originally given for the applicant’s detention. They added that there were no circumstances obliging them to release the applicant, with the result that his detention could be continued. In its decision given on 23 January 2004 the Olsztyn Regional Court dismissed the applicant’s appeal against further extension. It relied on the likelihood that a severe penalty would be imposed on the applicant as well as on the reasonable suspicion, justified by the evidence collected in the proceedings before the first-instance court, that the applicant and his co-accused would obstruct the proceedings. The court further found that the proceedings had been conducted without undue delays and that the applicant’s detention had been necessary to secure the proper course of the proceedings, because the court had had to hear evidence from a certain W.K., who had previously been accused in the same set of proceedings.
14. Between 5 February 2004 and 16 July 2004 the District Court held seven hearings during which evidence was heard from eighteen witnesses.
15. Following the retrial, on 16 July 2004, the Olsztyn District Court sentenced the applicant to three years and eight months’ imprisonment.
16. On the same day the applicant was released from detention.
17. The applicant, his co-accused and the prosecutor appealed against the Olsztyn District Court’s judgment, which was upheld by the Olsztyn Regional Court on 15 February 2005.
18. On 24 February 2005 the Court received a letter from the applicant. The envelope bore the following stamp: “Censored on 14 February 2005” (Ocenzurowano dnia 14.02.2005), together with an illegible signature and a stamp affixed by the post office in Ostróda that read: “Envelope taken out of mail box damaged and re-taped. Ostróda, 14 February 2005” (“Przesyłka wyjęta ze skrzynki w stanie uszkodzonym oklejona taśmą. Ostróda 14.02.2005”).
19. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
20. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
VIOLATED_ARTICLES: 5
8


ITEMID: 001-57928
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF HENTRICH v. FRANCE (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Costs and expenses award - Convention proceedings;Interest on amount awarded
JUDGES: N. Valticos
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 12 July 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 13616/88) against the French Republic lodged with the Commission under Article 25 (art. 25) by a French national, Mrs Liliane Hentrich, on 14 December 1987.
2. In a judgment of 22 September 1994 ("the principal judgment", Series A no. 296-A), the Court found that there had been breaches of Article 1 of Protocol No. 1 (P1-1), as the applicant had not been able to mount an effective challenge to the pre-emption of her property by the Revenue, and of Article 6 para. 1 (art. 6-1) of the Convention, for want of a fair hearing and owing to the length of the proceedings (ibid., pp. 18-23, paras. 34-61, and points 2, 3 and 4 of the operative provisions). On the other hand, it held that there had been no breach of Article 6 para. 2 (art. 6-2) of the Convention and that it was unnecessary to consider separately the complaints based on Articles 13 and 14 (art. 13, art. 14) of the Convention (ibid., pp. 23-24, paras. 62-66, and points 5 and 6 of the operative provisions).
The Court held that its judgment constituted in itself sufficient just satisfaction as to the alleged non-pecuniary damage and that the respondent State was to pay the applicant, within three months, 56,075 French francs (FRF) in respect of costs and expenses (ibid., pp. 24-25, paras. 67-75, and points 7 and 8 of the operative provisions).
3. As the question of the application of Article 50 (art. 50) was not ready for decision in respect of pecuniary damage, the Court reserved it and invited the Government and the applicant to submit in writing, within three months, their observations on the matter and, in particular, to notify the Court of any agreement they might reach (ibid., p. 25, para. 71, and point 9 of the operative provisions).
4. The negotiations for an agreement proved unsuccessful and the Registrar received a memorial on 3 January 1995 in which the Government replied to the claims made by the applicant in the principal proceedings (ibid., p. 24, para. 68). Mrs Hentrich submitted her observations and proposals on 4 January. In an order of 12 January the President requested the parties to make further submissions. Memorials in reply were submitted by the Agent of the Government on 11 February and by the applicant on 13 February.
5. On 9 March 1995 the Secretary to the Commission informed the Registrar that the Delegate had no observations to make.
6. On 6 April 1995 counsel for Mrs Hentrich filed supplementary documents and observations, which were communicated to the Government and the Delegate of the Commission on 18 April.
On 15 June 1995 the Government submitted further observations, which the Registrar sent to the applicant and the Delegate of the Commission on 23 June 1995.


ITEMID: 001-97333
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANATOLIY TARASOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 8;No violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1961 and is serving a prison sentence in correctional colony IK-3 in the Bashkortostan Republic.
7. On 14 September 1998 the applicant was arrested in the town of Glazov on suspicion of murder and several robberies. He was searched and police officers allegedly withheld his money and jewellery and beat him up. They took him to Glazov town police station where the beatings allegedly continued.
8. On an unspecified date the applicant was charged with aggravated robbery, murder, unlawful detention of an individual, extortion, unlawful possession of firearms and use of force against a State official – offences under Articles 162, 105, 127, 163, 222 and 318 of the Criminal Code. The applicant was placed in custody.
9. On 12 October 1999 the Supreme Court of the Udmurtiya Republic found the applicant guilty of robbery committed with a view to acquiring others' property on a large scale and accompanied by infliction of grievous bodily harm on the victim (Article 162 § (b) and (c)); unlawful detention of a person entailing grave consequences (Article 127 § 3); murder with a lucrative aim accompanied by a robbery (Article 105 § 2 (i)); extortion aimed at acquisition of others' property on a large scale (Article 163 § 3 (b)); unlawful possession of a firearm (Article 222 § 1) and assault on a State official (Article 318 § 1). The court established that the applicant had instigated his two co-defendants to rob employees of a trading company. Accompanied by the co-defendants and carrying a firearm, the applicant had stopped the employees' car, had robbed them, tied them to a tree in the forest and shot one of them dead. The court further found that the applicant had blackmailed another victim, extorting a sum of money from him and had assaulted police officers during his arrest. The court based the applicant's conviction on testimonies by his co-defendants, the surviving victims and witnesses and the material evidence. The applicant was sentenced to twenty-three years' imprisonment. He appealed against the judgment.
10. On an unspecified date in May 2000 the applicant was transferred to remand centre SIZO-3 in Moscow in order to secure his presence at the appeal hearing. He was allegedly placed in a cell where he was severely beaten by other inmates.
11. On 4 October 2000 the Supreme Court of the Russian Federation upheld the applicant's conviction on appeal.
12. On 16 April 2001 a deputy Prosecutor General of the Russian Federation lodged with the Presidium of the Supreme Court of the Russian Federation an application for supervisory review of the judgments of 12 October 1999 and 4 October 2000. The prosecutor requested a different legal characterisation of the applicant's criminal acts, in particular that the charge of “unlawful detention of an individual by an organised group” under Article 127 § 3 of the Criminal Code be reclassified as “unlawful detention of two or more individuals by a group of persons with the use of weapons and violence dangerous to [their] health” under Article 127 § 2 (a), (c), (d) and (h). Furthermore, he requested that the charge of “murder for financial gain coupled with robbery” under Article 105 § 2 (i) be reclassified as “murder coupled with robbery” under the same provision.
13. According to the Government, a copy of the prosecutor's application was sent to the applicant “simultaneously” and on 27 July 2001 he was informed that the hearing before the Presidium was scheduled for 8 August 2001. They further submitted that the applicant had been subsequently notified that the hearing had been postponed. The copy of the application of the deputy Prosecutor General produced by the Government contained handwritten notes: “postponed [signature] 08.08.”, “postponed [signature] 23.05”, “postponed 27.06.2001 [signature]”.
14. According to the applicant, he obtained a copy of the deputy Prosecutor General's application only on 16 August 2001. On unspecified dates the applicant sent to the Prosecutor General's Office and the Presidium of the Supreme Court his observations in connection with the prosecutor's application. He also sought leave to appear at the supervisory review hearing. It appears that his requests were left without reply.
15. On 3 October 2001 the Presidium of the Supreme Court of the Russian Federation examined the application. After having heard the prosecutor and the judge rapporteur and examined the materials of the case, the Presidium granted the request, reclassified the applicant's acts as sought by the prosecutor and reduced the sentence to twenty-two years' imprisonment. The Presidium court's decision contained no reference to the applicant's observations or arguments raised therein. The applicant did not attend the hearing.
16. From 6 April to 16 October 2005 the applicant was held in colony LIU-2 in the Udmurtiya Republic.
17. On 5 May 2005 the Court decided to give notice of the application to the Government of the Russian Federation.
18. By a letter dated 20 May 2005 and sent through informal channels, the applicant informed the Court that on 16 May 2005 wardens Ch., Ya. and O. had had a conversation with him. According to the applicant, they told him that the Court had started its examination of the application lodged by Messrs Khyzhiny and that they did not want the applicant to complain about conditions of detention in Russian correctional colonies to the Strasbourg Court. They ordered him to write statements addressed to Mr Zheludov, head of the Federal Service of the Execution of Sentences in the Republic of Udmurtiya, and to Mr Mardanshin, a prosecutor. The applicant was to affirm that he had no complaints about the conditions of detention. The applicant refused and allegedly endured beatings for three days and received death threats. According to the applicant, there was no physical evidence of ill-treatment because he had been refused access to a doctor. On 19 May 2005 the applicant gave up and signed the declarations.
19. In his letter of 20 May 2005 he requested the Court not to accept any statement similar to the above, should the Government produce one.
20. By a letter of 10 May 2005 the Registry of the Court informed the applicant that notice of his application had been given to the Russian Government. The applicant was invited to designate a representative in the proceedings before the Court. The letter contained several enclosures, such as a statement of facts, questions to the parties, an information note to applicants on the proceedings after communication of an application, an authority form and a list of Russian bar associations to which the applicant could apply for representation before the Court.
21. By letter dated 30 May 2005 the applicant informed the Court that on 26 May 2005 a co-detainee had handed him the Registry's letter of 10 May 2005. The envelope had been unsealed. It contained the letter and the questions to the parties. Considering that certain documents were missing, the applicant requested the prison administration to explain why the letter had been opened. According to the applicant, on 26 May 2006 he had been placed for four months in so-called “PKT cell-type premises” [помещение камерного типа] with a stricter prison regime because of his questions.
22. On 27 June 2005 the applicant complained of censorship to the head of the colony who initiated an inquiry.
23. On 27 June 2005 officer Z. submitted to the head of the colony an explanation which, in its relevant parts, read as follows:
“I hereby notify you that on 25 May 2005 a letter (incoming no. 1324) in a foreign language for convict Tarasov [the applicant] was received. I examined [the letter]. The documents in the envelope were inspected and put back into the envelope; they were not withheld. Other persons did not have access to the above letter and on the same day it was handed over against receipt to Kh., head of the brigade...”
24. The explanation compiled on 1 July 2005 by Kh., head of the applicant's brigade, went on as follows:
“On 25 May 2005 at around 3 p.m. officer Z. handed over to me a big envelope addressed to [the applicant]. The envelope was opened, I examined [рассмотрел] the documents contained therein and put them back. There were no documents in Russian there. I gave the envelope to V., the inmate on duty, for him to pass it to [the applicant]. I did not remove any documents from the envelope and did not give them to persons other than V.”
25. On 29 June 2005 inmate V. submitted to the head of the colony an explanation worded in the following terms:
“I ... handed over to [the applicant] a big envelope which had been given to me by Kh., head of the brigade. Some fifteen minutes after the envelope was given to me I handed it over to [the applicant]. I did not look into the envelope and did not take any documents out of it, I did not give the envelope to anybody.”
26. On 4 July 2005 the acting head of the colony delivered a report [заключение]. It stated that in course of the inquiry it had been established that on 25 May 2005 the colony had received an envelope for the applicant with documents from the European Court. Officer Z. in charge of censoring the inmates' correspondence had automatically opened the envelope, not noticing the logo of the European Court of Human Rights. After the inspection [осмотр] of the documents she had put them back into the envelope and had passed it over to Kh., head of the applicant's brigade, who was supposed to hand it over to the applicant. The report concluded that Z. had breached Article 91 § 2 of the Penal Code prohibiting censorship of convicts' correspondence with the European Court of Human Rights. The report went on suggesting, among other things, reprimanding Z. for negligence and conducting study courses on Article 91 of the Penal Code with the colony officers, followed by obligatory tests.
27. On 2 September 2005 the Court requested the Government to submit further observations in connection with the censorship of the Registry's letter and the alleged intimidation of the applicant.
28. On an unspecified date the regional office of the Federal Service for the Execution of Sentences in the Republic of Udmurtiya opened an inquiry in connection with the Court's communication of the applicant's complaints to the Government.
29. On 25 October 2005 the regional prosecutor questioned the applicant. His explanation, in so far as relevant, read:
“On 26 May 2005 at around 12.10 on duty inmate V. handed over to me an opened envelope with the logo of the ECHR; there were three sheets of paper with a text in English. He told me that he had received the envelope from Kh.. At lunch I asked Kh. why the envelope had been opened. He answered that he had been given the opened envelope by the censor...
From the text of the documents I understood that not all documents had been given to me; in particular, some documents which I was supposed to fill in and to return to the ECHR were missing...
I think that the missing documents... had been withheld by the representatives of the administration of LIU-2. I cannot name specific persons because I don't know who they were. My suspicions in respect of the administration are based on the fact that directly after my complaint to Ya., deputy head of the colony, the administration acted in a strange way. Instead of attempting to find out what had happened to the missing documents, they placed me in a PKT. I think that if the administration had had nothing to do with the loss of the documents they would not be acting like that...
...In LIU-2 I was not pressurised directly. However it looks suspicious to me that I have suddenly become a persistent regime breaker. It is also alarming that measures are taken with a view to delaying my incoming correspondence from the ECHR and my outgoing correspondence. The attachments to the ECHR letter opened in May 2005 may have been withheld with this aim.”
30. On 1 November 2005 the regional office of the Federal Service for Execution of Sentences issued a report in which they acknowledged a breach of the rules concerning the confidentiality of the applicant's correspondence with the Court. At the same time it was noted that it had not been confirmed that documents had been removed from the Registry's envelope. It was further stated, with reference to the explanations of Z., the then acting head of the colony, and Kh., that Z. had automatically opened the envelope, that she had not read the documents and that, in any event, she did not speak English. Had she noticed the European Court's logo, she would not have unsealed the envelope. Neither she nor other persons had removed the documents from the envelope; no such directions had ever been given to anybody. It had been impossible to reprimand Z. because by the relevant time her employment had already been terminated because of general measures to reduce the workforce.
31. As regards the applicant's allegation of pressure with a view to making him withdraw some of his complaints to the Court, the report noted that, according to his own explanation, he had only raised the issue of interference with his communication with the Court in connection with the opening of the Registry's letter. He had not referred to any other instances of intimidation or interference.
32. Lastly, during his detention before his conviction had become final he had been reprimanded fourteen times for various breaches of the detention regime. After the conviction had become final the applicant breached the prison regime on twenty-seven occasions: he was placed in a punishment cell, nine times, in a PKT twice, and was reprimanded seventeen times.
33. By a final judgment of 15 December 2006 the applicant was convicted of having publicly assaulted a public official.
34. On an unspecified date he was transferred to serve his prison sentence to correctional colony IK-3 in the Republic of Bashkortostan.
35. On 12 September 2005 the Court, while giving notice of the applicant's complaints about the opening of its letter and the applicant's alleged intimidation under Article 34, of its own motion, raised the issue of whether the prison authorities censored the applicant's correspondence, in breach of Article 8 of the Convention.
36. According to the applicant, during his stay in LIU-2 the prison administration routinely censored his incoming mail from the domestic authorities that was not subject to censorship by virtue of the domestic law.
37. In particular, the applicant referred to the incoming mail from the following authorities: the Ombudsman of the Russian Federation (letters of 6 June and 14 October 2004), the Constitutional Court of the Russian Federation (letter of 26 August 1999), the Commission on Human Rights with the President of the Russian Federation (letter of 15 April 2004), the Prosecutor General's Office (letters of 11 November 2002 and 27 October 2005), the prosecutor's office of the Udmurtiya Republic (letters of 3 December 2002 and 11 May 2004), the Ministry of Justice of the Russian Federation (letter of 31 October 2002), the Supreme Court of the Russian Federation (letter of 20 November 2002), the department of the Federal Service for Execution of Sentences in the Udmurtiya Republic (letters of 26 April, 3 and 10 June and 10 August 2004), the Mozhgi District court (letter of 13 January 2004).
38. The letter of the Prosecutor General's Office dated 27 October 2005 was addressed to the head of LIU-2. He was requested to notify the applicant that the Prosecutor General's Office had examined the applicant's complaint, forwarded to them by the Office of the President of the Russian Federation, and dismissed it as unfounded.
39. Under Article 377 § 3 of the 1960 Code of Criminal Procedure, in force at the material time, a prosecutor took part in a hearing before a supervisory review court. A convict and his or her counsel could be summoned if the court found it necessary. If summoned, they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing. By its ruling of 14 February 2000, the Constitutional Court declared Article 377 § 3 of the Code unconstitutional in so far as it allowed a supervisory instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor, if the latter sought annulment of the final judgment on grounds unfavourable to that person. The Constitutional Court made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place. Failing that, the above persons would be unable to state their position to the court.
40. A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety (Article 380). It could uphold, amend or quash any of the earlier judgments, vary the sentence, discontinue the criminal proceedings or remit the matter for new consideration by the trial or appeal court. It could not, however, increase the sentence or re-categorise the defendant's actions as a more serious offence (ibid.).
41. Article 91 § 2 of the Penal Code, as amended on 8 December 2003, as well as Rule 53 of the Internal Regulations of Correctional Facilities adopted on 3 November 2005 by Decree no. 205 of the Russian Ministry of Justice, provide that all detainees' incoming and outgoing correspondence is subject to censorship by the administration of the correctional facility. Correspondence with courts, prosecutors, penitentiary officials, the Ombudsman, the public monitoring board and the European Court of Human Rights is not subject to censorship.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 34


ITEMID: 001-70358
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ZYTS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award
TEXT: 4. The applicant was born in 1959 and lives in the city of Novovolynsk, the Volyn region, Ukraine.
5. On 2 August 2000 the applicant suffered an industrial injury and lost 80% of his capacity to work.
6. On 30 January 2002 the Novovolynsk City Court ordered the Novovolynska State Mine (the “Mine”) to pay the applicant UAH 65,767.80 in compensation for the applicant's occupational disability. By the same decision, the court ordered the Novovolynsk Department of the Social Security Fund to pay the applicant a lump sum of UAH 2,301.30 and a monthly allowance of UAH 615.05 for a period of one year in compensation for loss of earnings.
7. On 22 March 2002 the Novovolynsk City Bailiffs' Service instituted enforcement proceedings against the Mine.
8. On 18 April 2002 the Bailiff's Service informed the applicant that the judgment was not enforced due to a large number of enforcement proceedings against the Mine and its lack of funds. The Bailiffs also informed her that the procedure for the forced sale of assets belonging to the debtor was blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001.
9. In 2002 the applicant lodged a complaint with the Novovolynsk City Court about the inactivity of the Head of the Bailiffs' Service in respect of the enforcement of the judgment at issue. On 26 November 2002 the court found for the applicant, declared the Bailiffs' Service's inactivity unlawful and ordered its Head to carry out supervision of the enforcement of the judgment by the Bailiffs' Service.
10. On 27 December 2002, 24 March, 15 August and 19 December 2003 the applicant was paid a total of UAH 3,200 in the course of the enforcement of the award against the Mine.
11. On 28 January 2004 the sum of UAH 58,917.80 was transferred to the applicant's bank account, out of which the applicant's bank deducted a fee of UAH 589.04.
12. On 26 March, 28 April and 17 June 2004 the applicant received UAH 2,550, UAH 900 and UAH 200, respectively.
13. On 17 June 2004 the Bailiffs' Service discontinued the enforcement proceedings on the ground that the judgment of the Novovolynsk City Court of 30 January 2002 in the part concerning the award against the Mine had been enforced in full.
14. The applicant did not challenge the decision of the Bailiffs' Service of 17 June 2004 before the domestic courts.
15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1