ITEMID: 001-89857
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SOLOVEY AND ZOZULYA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Preliminary objections dismissed;Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage -award;Pecuniary damage - claim dismissed
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicants were born in 1981. They are currently detained.
6. On 18 August 1998 Mr Solovey confessed that he, Mr Zozulya and Mr Kh. had killed Mrs T.
7. On 19 August 1998 Mr Zozulya made a similar confession.
8. On the same day criminal proceedings against both applicants were initiated.
9. On 11 November 1998 the pre-trial investigation was completed and the applicants were given time to study the case file.
10. From 12 November 1998 until 4 May 1999 the applicants and other parties studied the case-file material. Mr Zozulya did so from 16 November 1998 to 15 April 1999, and Mr Solovey from 20 November 1998 to 3 May 1999.
11. On 13 May 1999 the case was referred to the Kyiv City Court (“the Kyiv Court”), acting as a first-instance court.
12. On 19 May 1999 the court committed the applicants for trial.
13. On 1 July 1999 the Kyiv Court convicted both applicants of aggravated murder and robbery; and sentenced each of them to fourteen years’ imprisonment.
14. On 9 December 1999 the Supreme Court of Ukraine quashed the judgment and remitted the case for additional pre-trial investigation.
15. On 17 January 2000 the criminal case against the applicants was sent to the prosecutor’s office for an additional investigation.
16. On 18 February 2000 the Prosecutor General lodged a request for extraordinary review of the decision of the Supreme Court of 9 December 1999 with the Plenary Supreme Court.
17. On 3 March 2000 the Plenary rejected the request for the review and the case was sent back to the investigator.
18. On 15 June 2000 the additional investigation was completed and the applicants were given time to study the case file.
19. On 20 July 2000 the case was referred to the Kyiv Court.
20. On 17 August 2000 the Kyiv Court remitted the case for additional investigation.
21. On 19 October 2000 the Supreme Court upheld that ruling of 17 August 2000.
22. On 30 January 2001, after additional investigation, the case was referred again to the Kyiv Court.
23. On 21 February 2001 the Kyiv Court committed the applicants for trial.
24. On 25 April 2001 the Kyiv Court convicted Mr Zozulya and Mr Solovey of aggravated murder and robbery; and sentenced them, respectively, to fourteen and ten years’ imprisonment.
25. On 25 April 2002 the Supreme Court upheld the judgment of the Kyiv Court.
26. Mr Solovey and Mr Zozulya were arrested on 18 August and 19 August 1998 respectively .
27. On 20 August 1998 the Kyiv Podolsky District Prosecutor ordered the detention of Mr Zozulya for two months on the ground that he had committed a serious offence and might abscond.
28. On 21 August 1998 the same preventive measure was chosen for Mr Solovey on the same grounds.
29. On 19 October 1998 the Kyiv Podolsky District Prosecutor prolonged the applicants’ detention up to three months – until 20 November 1998 for Mr Zozulya and 21 November 1998 for Mr Solovey.
30. On 19 May 1999 the Kyiv Court, in the committal hearing, maintained the applicants’ detention without giving any grounds or fixing any time limit.
31. In its judgment of 1 July 1999 the Kyiv Court, having convicted the applicants, also decided that they should remain in custody until the judgment became final.
32. On 9 December 1999 the Supreme Court of Ukraine, having quashed the judgment of 1 July 1999 in full, made no ruling in respect of the applicants’ further detention.
33. On 28 January 2000 the Kyiv Prosecutor’s Office ordered the applicants’ detention for one month – until 28 February 2000.
34. On 27 March 2000 the Deputy Prosecutor General extended the applicants’ detention to eight months without giving any grounds – up to 17 June 2000 for Mr Zozulya and up to 18 June 2000 for Mr Solovey.
35. On 17 August 2000 the Kyiv Court, having remitted the case for additional investigation, maintained the applicants’ detention without giving any reason or fixing any time-limits.
36. On 6 December 2000 the Darnitsky Prosecutor’s Office ordered the applicants’ further detention for one month – until 5 January 2001.
37. On 21 February 2001 the Kyiv Court, in the committal hearings, maintained the applicants’ detention without giving any reason or fixing any time-limits.
38. On 25 April 2001 the Kyiv Court convicted the applicants.
39. From April 2000 onwards the applicants and their representatives lodged numerous procedural applications with the Darnitsky Prosecutor’s Office, the Kyiv Court and the Supreme Court, requesting the applicants’ release. They also submitted several complaints to the prosecutors and the Kyiv Court alleging that their detention had been unlawful between November 1998 and April-May 1999 when they had been studying the case file and their detention had not been covered by any detention order (see paragraphs 10, 29 and 30 above).
40. The Darnitsky Prosecutor’s Office, in reply to the applicants’ requests and complaints, informed them that their detention had been in compliance with the law and that there had been no grounds for their release. It did not advance any other reasoning to justify the applicants’ detention.
41. The Kyiv Court, in its decisions of 19 May 1999, 17 August 2000 and 21 February 2001, maintained the applicants’ detention on remand stating that the preventive measure chosen by the investigation was correct (see paragraphs 30, 35 and 37 above). It did not, however, address the applicants’ complaints about the alleged unlawfulness of their detention between November 1998 and April 1999.
42. The Supreme Court, in its decisions of 9 December 1999 and 19 October 2000, did not make any ruling on the applicants’ further detention (see paragraphs 21 and 32 above).
43. The relevant provisions of the Code of Criminal Procedure read as follows:
“If there are sufficient grounds to consider that the accused, if at liberty, will abscond from an investigation or the court, or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities, and in order to ensure the execution of the sentence, the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by Article 149 of the Code ...”
“The preventive measures shall be as follows:
(1) a written undertaking not to abscond;
(2) a personal surety;
(3) the surety of a public organisation or labour collective;
(3-1) bail;
(4) remand in custody;
(5) supervision by the command of a military unit.”
“Detention on remand as a preventive measure shall be applied in cases concerning offences for which the law envisages a penalty of more than one year’s imprisonment. In exceptional circumstances this preventive measure can be applied also in cases concerning offences for which the law envisages a penalty of up to one year’s imprisonment...”
“The term for remanding a person in custody during the investigation of criminal offences shall be not more than two months. This term may be extended to four months by district, city or military prosecutors, prosecutors of the fleet or command garrison, or other prosecutors of the same rank, if it is not possible to terminate the criminal investigation, and in the absence of any grounds for changing the preventive measure. A further extension of this term to six months from the time of arrest shall be effected only if the case is exceptionally complex, by the Prosecutor of the Republic of the Crimea, regional prosecutors, Kyiv prosecutors, military prosecutors of the district or fleet, or other prosecutors equal to them in rank.
Further periods of remand in custody may be extended for up to one year by the Deputy Prosecutor General of Ukraine, and up to eighteen months by the Prosecutor General.
Subsequent to the above, no further extensions of detention on remand shall be allowed. The accused must then be immediately released.
If it is impossible to terminate the investigation within these remand periods and there are no grounds for changing the preventive measure, the Prosecutor General or his Deputy shall be entitled to refer the case to a court in the part which relates to accusations which can be proved. As regards the incomplete investigation, the case shall be divided into separate proceedings and completed in accordance with the general rules.
The material relating to the completed part of the criminal case shall be provided to the accused and his representative for examination not later than one month before the expiry of the remand period, as established by paragraph 2 of this Article.
The time taken by the accused and his representative to apprise themselves of the material in the case file shall not be taken into account in calculating the overall term of remand in custody.
If the court refers the case back for a freshtime he receives the case file. Further prolongation of such detention, before the case is remitted to the court, shall be governed by paragraphs 1, 2 and 6 of this Article.”
Article 241
Terms of examination of the case by a single judge or a court in the committal hearing
“A criminal case shall be examined by a single judge or a court in the committal hearing within five days or, in complex cases, ten days after its receipt by the court.”
Article 242 (as worded at the material time): Issues considered when committing the accused for trial
“Single judges or a court in a preparatory sitting shall consider the following issues with respect to each of the accused:
...
(7) whether the preventive measure with respect to the accused has been selected correctly...”
Article 244 (as worded at the material time): Decision of a court or of a single judge at the preparatory hearing
“... If it is necessary to change the preventive measure, the court in a ruling and the judge in a resolution shall give reasons for the decision taken to that effect.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3


ITEMID: 001-83109
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BERIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: 1. The applicants, Messrs. Dušan Berić, Pantelija Ćurguz, Božidar Vučurević, Dragomir Ljubojević, Radomir Lukić, Milenko Stanić, Rodoljub Đukanović, Savo Čeliković, Milan Bogićević, Savo Krunić, Zvonko Bajagić, Mirko Delić, Duško Kornjača, Vojislav Gligić, Dragan Dobrilović, Momir Tošić, Mihajlo Mijanović, Dragutin Đurašinović, Slobodan Šaraba, Milan Tupajić, Milan Ninković, Miloš Lazović, Aleksandar Savić, Miloš Tomović, Nade Radović and Čedomir Popović, are citizens of Bosnia and Herzegovina. They were represented before the Court by Mr K. Čavoški and Mr M. Paunović, law professors at the University of Belgrade. The respondent Government were represented by Ms M. Mijić, Agent, and by Ms Z. Ibrahimović, Deputy Agent.
2. Between 29 June and 16 December 2004 the High Representative removed the applicants from all their public and political-party positions and indefinitely barred them from holding any such positions and from running for election. The decision in each individual case had immediate effect and did not require any further procedural steps. The main reasons given for those decisions are reproduced here:
“Bosnia and Herzegovina has singularly failed to discharge its international obligation to bring closure to arguably the most lamentable chapter of its history. It has failed especially and egregiously in the territory of the Republika Srpska to apprehend and deliver to just prosecution a number of persons indicted under Article 19 of the Statute of the ICTY [that is, the International Criminal Tribunal for the Former Yugoslavia].
Said failure could not have occurred without the active assistance of individuals and entities, or indeed without the general culture of both overt and secret complicity and of silence prevalent in the one Entity of Bosnia and Herzegovina where such individuals are believed to have found sanctuary, that is, [in the] Republika Srpska.
Despite its constitutionally mandated duty to fully co-operate with the ICTY – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within the Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole.
It now falls on the international community to redress this intolerable situation by initiating direct and sweeping action against those public-office holders of the Republika Srpska who obstruct international law in the Entity. By dint of their nefarious conduct or failure to carry out their functional responsibilities while associated in differing capacities with public institutions, these individuals have demonstrated that they are not worthy of entrustment with public responsibility.”
The applicants were held “derivatively culpable [of] contributing to the institutional failure to purge... the political landscape of conditions conducive to the provision of material support and sustenance to individuals indicted under Article 19 [of the Statute of the International Criminal Tribunal for the Former Yugoslavia].”
3. On 4 November 2005 the High Representative lifted the 2004 ban imposed on the applicants Berić, Bogićević, Gligić, Dobrilović, Šaraba and Tomović, following an oath taken by them to respect the Constitution of Bosnia and Herzegovina. The six applicants were not automatically restored to the offices from which they had earlier been removed and were not entitled to any compensation.
4. Chapter I outlines the purposes and principles of the United Nations (“UN”). Articles 1 and 2 provide:
The Purposes of the [UN] are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the [UN].
5. All Members shall give the [UN] every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the [UN] is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the [UN] act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the [UN] to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
5. Chapter V deals with the UN Security Council (“UNSC”). Articles 24 and 25 provide:
1. In order to ensure prompt and effective action by the [UN], its Members confer on the [UNSC] primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the [UNSC] acts on their behalf.
2. In discharging these duties the [UNSC] shall act in accordance with the Purposes and Principles of the [UN]. The specific powers granted to the [UNSC] for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.
3. The [UNSC] shall submit annual and, when necessary, special reports to the General Assembly for its consideration.
The Members of the [UN] agree to accept and carry out the decisions of the [UNSC] in accordance with the present Charter.”
6. Chapter VII is entitled “Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression”. The relevant Articles (Articles 39, 41 and 48) provide:
The [UNSC] shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
The [UNSC] may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the [UN] to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
1. The action required to carry out the decisions of the [UNSC] for the maintenance of international peace and security shall be taken by all the Members of the [UN] or by some of them, as the [UNSC] may determine.
2. Such decisions shall be carried out by the Members of the [UN] directly and through their action in the appropriate international agencies of which they are members.”
7. Chapter XVI contains miscellaneous provisions, including Article 103 which provides:
“In the event of a conflict between the obligations of the Members of the [UN] under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
The International Court of Justice considers Article 103 to mean that the Charter obligations of UN member States prevail over conflicting obligations from another international treaty, regardless of whether the latter treaty was concluded before or after the UN Charter or was only a regional arrangement (see Nicaragua v. United States of America, ICJ Reports, 1984, p. 392, § 107).
8. In 2003 the International Law Commission (“ILC”) adopted draft article 3 (see the Report of the fifty-fifth session of the ILC (2003), A/58/10). It is entitled “General principles” and provides:
“1. Every internationally wrongful act of an international organization entails the international responsibility of the international organization.
2. There is an internationally wrongful act of an international organization when conduct consisting of an action or omission:
a. Is attributable to the international organization under international law; and
b. Constitutes a breach of an international obligation of that international organization.”
9. In 2004 the ILC adopted draft article 5 (see the Report of the fifty-sixth session of the ILC (2004), A/59/10). It is entitled “Conduct of organs or agents placed at the disposal of an international organization by a State or another international organization” and reads as follows:
“The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
10. The General Framework Agreement for Peace in Bosnia and Herzegovina, initialled at the Wright-Patterson Air Force Base near Dayton in the United States, (“the Peace Agreement”) was the culmination of some 44 months of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the Contact Group. It contains eleven Articles which mainly set out the obligations for the three Contracting States (the then Republic of Bosnia and Herzegovina, the Republic of Croatia and the then Federal Republic of Yugoslavia) to “welcome and endorse” and to “fully respect and promote fulfilment of the commitments” made in the Annexes thereto. The substance of the commitments is contained in twelve Annexes.
11. Annex 10 to the Peace Agreement, named the Agreement on Civilian Implementation, sets out the mandate of the High Representative. The relevant provisions read as follows:
1. The Parties agree that the implementation of the civilian aspects of the peace settlement will entail a wide range of activities including continuation of the humanitarian aid effort for as long as necessary; rehabilitation of infrastructure and economic reconstruction; the establishment of political and constitutional institutions in Bosnia and Herzegovina; promotion of respect for human rights and the return of displaced persons and refugees; and the holding of free and fair elections according to the timetable in Annex 3 to the [Peace Agreement]. A considerable number of international organizations and agencies will be called upon to assist.
2. In view of the complexities facing them, the Parties request the designation of a High Representative, to be appointed consistent with relevant [UNSC] resolutions, to facilitate the Parties' own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement by carrying out, as entrusted by a [UNSC] resolution, the tasks set out below.
The High Representative shall:
a. Monitor the implementation of the peace settlement;
b. Maintain close contact with the Parties to promote their full compliance with all civilian aspects of the peace settlement and a high level of cooperation between them and the organizations and agencies participating in those aspects;
c. Coordinate the activities of the civilian organizations and agencies in Bosnia and Herzegovina to ensure the efficient implementation of the civilian aspects of the peace settlement. The High Representative shall respect their autonomy within their spheres of operation while as necessary giving general guidance to them about the impact of their activities on the implementation of the peace settlement. The civilian organizations and agencies are requested to assist the High Representative in the execution of his or her responsibilities by providing all information relevant to their operations in Bosnia and Herzegovina;
d. Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation;
e. Participate in meetings of donor organizations, particularly on issues of rehabilitation and reconstruction;
f. Report periodically on progress in implementation of the peace agreement concerning the tasks set forth in this Agreement to the [UN], European Union, United States, Russian Federation, and other interested governments, parties, and organizations;
g. Provide guidance to, and receive reports from, the Commissioner of the International Police Task Force established in Annex 11 to the [Peace Agreement].
The High Representative shall have no authority over the IFOR [that is, a multinational implementation force established as an enforcement measure under Chapter VII of the UN Charter] and shall not in any way interfere in the conduct of military operations or the IFOR chain of command.
Privileges and immunities shall be accorded as follows:
a. The Parties shall accord the office of the High Representative and its premises, archives, and other property the same privileges and immunities as are enjoyed by a diplomatic mission and its premises, archives, and other property under the Vienna Convention on Diplomatic Relations.
b. The Parties shall accord the High Representative and professional members of his or her staff and their families the same privileges and immunities as are enjoyed by diplomatic agents and their families under the Vienna Convention on Diplomatic Relations.
c. The Parties shall accord other members of the High Representative staff and their families the same privileges and immunities as are enjoyed by members of the administrative and technical staff and their families under the Vienna Convention on Diplomatic Relations.
The Parties shall fully cooperate with the High Representative ...
The High Representative is the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement.”
12. Following the initialling of the Peace Agreement, a Peace Implementation Conference was held in London on 8 and 9 December 1995. It resulted in the establishment of a Peace Implementation Council (“PIC”), its Steering Board and a High Representative as the Chair of the Steering Board. While the PIC is composed of all the States, international organisations and agencies which attended the Conference, the Steering Board members are Canada, France, Germany, Italy, Japan, the Russian Federation, the United Kingdom, the United States, the Presidency of the European Union, the European Commission and Turkey (on behalf of the Organisation of the Islamic Conference). The Conference invited the UNSC to endorse the establishment of the High Representative (see the Conclusions of the London Peace Implementation Conference, UN document no. S/1995/1029).
13. On 15 December 1995, the day after the entry into force of the Peace Agreement, the UNSC adopted Resolution 1031 which, in so far as relevant, provides:
“The Security Council,
Recalling all its previous relevant resolutions concerning the conflicts in the former Yugoslavia,
...
Welcoming the signing on 14 December 1995 at the Paris Peace Conference of the General Framework Agreement for Peace in Bosnia and Herzegovina and the Annexes thereto (collectively the Peace Agreement, S/1995/999, annex) by the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia and the other parties thereto,
...
Welcoming further the conclusions of the Peace Implementation Conference held in London on 8 and 9 December 1995 (the London Conference) (S/1995/1029), and in particular its decision to establish a Peace Implementation Council and its Steering Board as referred to in those conclusions,
...
Determining that the situation in the region continues to constitute a threat to international peace and security,
Determined to promote the peaceful resolution of the conflicts in accordance with the purposes and principles of the [UN] Charter,
Acting under Chapter VII of the [UN] Charter,
...
26. Endorses the establishment of a High Representative, following the request of the parties, who, in accordance with Annex 10 on the civilian implementation of the Peace Agreement, will monitor the implementation of the Peace Agreement and mobilize and, as appropriate, give guidance to, and coordinate the activities of, the civilian organizations and agencies involved, and agrees the designation of Mr. Carl Bildt as High Representative;
27. Confirms that the High Representative is the final authority in theatre regarding interpretation of Annex 10 on the civilian implementation of the Peace Agreement;
28. Decides that all States concerned, and in particular those where the High Representative establishes offices, shall ensure that the High Representative enjoys such legal capacity as may be necessary for the exercise of his functions ...;
...
32. Requests the Secretary-General to submit to the [UNSC] reports from the High Representative, in accordance with Annex 10 of the Peace Agreement and the conclusions of the London Conference, on the implementation of the Peace Agreement;
...
39. Recognizes the unique, extraordinary and complex character of the present situation in Bosnia and Herzegovina, requiring an exceptional response;
40. Decides to remain seized of the matter.”
14. Since the London Conference, the PIC has come together at ministerial level a further five times in order to review progress and define the goals of peace implementation for the coming period: it met in June 1996 in Florence, December 1996 for a second time in London, December 1997 in Bonn, December 1998 in Madrid and May 2000 in Brussels.
15. The relevant part of the Conclusions of the Bonn Peace Implementation Conference (see UN document no. S/1997/979) states:
“...The [PIC] welcomes the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on Civilian Implementation of the [Peace Agreement] in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues:
a. Timing, location and chairmanship of meetings of the common institutions;
b. Interim measures to take effect when parties are unable to reach agreement, which will remain in force until the Presidency or Council of Ministers has adopted a decision consistent with the [Peace Agreement] on the issue concerned;
c. Other measures to ensure implementation of the [Peace Agreement] throughout Bosnia and Herzegovina and its Entities, as well as the smooth running of the common institutions. Such measures may include actions against persons holding public office or officials who are absent from meetings without good cause or who are found by the High Representative to be in violation of legal commitments made under the [Peace Agreement] or the terms for its implementation.”
The powers of the High Representative resulting from the Conclusions of the Bonn Peace Implementation Conference are commonly referred to as the “Bonn powers”. On 19 December 1997 the UNSC endorsed those Conclusions (UNSC Resolution 1144).
16. The UNSC has regularly expressed its support for the PIC and the High Representative. UNSC Resolution 1722 of 21 November 2006 is a recent example and, in so far as relevant, reads:
“The Security Council,
...
Determining that the situation in the region continues to constitute a threat to international peace and security,
Acting under Chapter VII of the [UN] Charter,
...
4. Emphasizes its full support for the continued role of the High Representative in monitoring the implementation of the Peace Agreement and giving guidance to and coordinating the activities of the civilian organizations and agencies involved in assisting the parties to implement the Peace Agreement, and reaffirms that under Annex 10 of the Peace Agreement the High Representative is the final authority in theatre regarding the interpretation of civilian implementation of the Peace Agreement and that in case of dispute he may give his interpretation and make recommendations, and make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council in Bonn on 9 and 10 December 1997;
...”
17. While acknowledging that “the use of the Bonn powers by the High Representative was beneficial for Bosnia and Herzegovina and its citizens and a necessity following a bloody war”, the European Commission for Democracy through Law (the Venice Commission) has recently called for a “progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice” (see the Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative, adopted at the sixty-second session of the Venice Commission, CDL-AD (2005) 004). The relevant part of this Opinion states:
“94. The termination of the employment of a public official is a serious interference with the rights of the person concerned. In order to meet democratic standards, it should follow a fair hearing, be based on serious grounds with sufficient proof and the possibility of a legal appeal. The sanction has to be proportionate to the alleged offence. In cases of dismissal of elected representatives, the rights of their voters are also concerned and particularly serious justification for such interference is required.
95. In this context the Commission is certainly not called upon to enter into a quasi-judicial scrutiny of the individual decision of the High Representative. It can only provide a broad general assessment of the compatibility of these decisions with international standards. The removals by the High Representative certainly pursue a legitimate aim and are based on serious grounds. Non-co-operation with ICTY is a serious violation of the international obligations of the country, and corrupt practices as well as the establishment of parallel institutions to the legitimate state institutions also justify tough sanctions. Subject to a detailed case-by-case analysis, the sanction of dismissal does not seem disproportionate to the alleged offences.
96. The main concern is however that the High Representative does not act as an independent court and that there is no possibility of appeal. The High Representative is not an independent judge and he has no democratic legitimacy deriving from the people of [Bosnia and Herzegovina (“BiH”)]. He pursues a political agenda, agreed by the international community, which serves the best interests of the country and contributes to the realisation of Council of Europe standards. As a matter of principle, it seems unacceptable that decisions directly affecting the rights of individuals taken by a political body are not subject to a fair hearing or at least the minimum of due process and scrutiny by an independent court.
97. It would have been unrealistic to have insisted on immediate full compliance with all international standards governing a stable and full-fledged democracy in a post-conflict situation such as existed in BiH following the adoption of the [Peace] Agreement. The addressees of the decisions of the High Representatives were often powerful individuals and the actions taken by them were generally actions taken in the perceived interest of their political party or ethnic community. It would furthermore have been unrealistic to expect that the BiH judicial system should have been capable of effectively dealing with such actions in the early post-conflict period. It is therefore understandable that the decisions were not made subject to control by the courts of BiH. This situation can however not last forever but, also taking into account the important reforms of the judiciary carried out at the request of or imposed by the High Representative, the day must come when such decisions are made subject to full judicial control and made the responsibility of the proper national institutions.
98. It is not up to the Commission to indicate a precise date when such a transfer should take place although it should not be in the too distant future. But even pending such transfer, the present practice will have to be substantially modified to make it acceptable as an interim solution. The continuation of such power being exercised by a non-elected political authority without any possibility of appeal and any input by an independent body is not acceptable. As an urgent step the Commission recommends setting up an independent panel of legal experts which would have to give its consent to any such decision of the High Representative. Having regard to the confidential nature of many elements of the file, this might be a body composed of international experts.
99. In order for such a body to work effectively, it will be necessary to define the possible measures to be taken by the High Representative and the offences justifying such measures clearly and precisely. The conclusions of the Bonn conference are not precise enough to enable a legal panel to determine the justification of individual removals. Furthermore, the issue of the duration of the ban on the holding of future public office and of possible rehabilitations will also have to be addressed. In this respect, the Commission welcomes as a first step the recent decision of the High Representative to initiate a process of rehabilitation of some of the persons dismissed earlier. If the office of High Representative were to be terminated in the near future, there would no longer be a political body enforcing respect for the previous decisions of the High Representative but their legal validity would not automatically cease.”
18. Subject to the High Representative's consent, the Constitutional Court of Bosnia and Herzegovina (“Constitutional Court”) exercises judicial review of the constitutionality of the content of legislation enacted by the High Representative, in the same way as it does for legislation adopted by the domestic authorities. However, it does not examine whether the High Representative was justified in enacting the legislation in the place of the domestic authorities (see the Constitutional Court's decision no. U 9/00 of 3 November 2000).
19. Indeed, the High Representative has not consented to the review of his other acts by any domestic authorities. The Constitutional Court's decision no. AP 953/05 of 8 July 2006, ordering the domestic authorities to secure an effective remedy in respect of removals from office by the High Representative, led to a vigorous response from the High Representative. The High Representative's order of 23 March 2007, which removed any practical effect from the Constitutional Court's impugned decision, reads:
In order to implement the Decision of the [Constitutional] Court [no. AP 953/05 of 8 July 2006], the Presidency of Bosnia and Herzegovina shall address to the High Representative, as Chair of the Steering Board of the [PIC], all matters raised in said Decision that ought to be considered by the international authorities referenced in the said Decision.
Any step taken by any institution or authority in Bosnia and Herzegovina in order to establish any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate shall be considered by the High Representative as an attempt to undermine the implementation of the civilian aspects of the [Peace Agreement] and shall be treated in itself as conduct undermining such implementation.
Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.
Any proceeding referred to in Paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay.
For the avoidance of any doubt or ambiguity, and taking into account the totality of the matters aforesaid, it is hereby specifically ordered and determined, in the exercise of the said international mandate of the High Representative and pursuant to its interpretation hereinunder and by virtue of the said Annex 10 [to the Peace Agreement], that no liability is capable of being incurred on the part of the Institutions of Bosnia and Herzegovina, and/or any of its subdivisions and/or any other authority in Bosnia and Herzegovina, in respect of any loss or damage allegedly flowing, either directly or indirectly, from such Decision of the High Representative made pursuant to his or her international mandate, or at all.
For the avoidance of doubt, it is hereby specifically declared and provided that the provisions of the Order contained herein are, as to each and every one of them, laid down by the High Representative pursuant to his international mandate and are not, therefore, justiciable by the Courts of Bosnia and Herzegovina or its Entities or elsewhere, and no proceedings may be brought in respect of duties in respect thereof before any court whatsoever at any time hereafter.”


ITEMID: 001-69750
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: I.H. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr I.H., is a United Kingdom national, who was born in 1970 and lives in Chaste Field Hopsital, Enfield, Middlesex. He is represented before the Court by Mr M. David, a solicitor practising in Saxmundham, Suffolk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In March 1995, the applicant severely mutilated his three year old son by castrating him. He was charged with causing grievous bodily harm with intent to do so. On 4 May 1995 he was transferred to Rampton Hospital under section 28 of the Mental Health Act 1983 ('MHA'), diagnosed with paranoid psychosis. On 21 July 1995 he was found not guilty of that offence by reason of insanity and ordered to be admitted to a high security hospital (Rampton) under section 5 of the Criminal Procedure (Insanity) Act 1964. When an individual is admitted to hospital in this way, he becomes entitled to apply to a Mental Health Review Tribunal (“MHRT”) which is empowered to order his discharge either absolutely or conditionally.
On 18 July 1998 the applicant's detention was reviewed by the MHRT but no order for discharge was made.
On 7 September 1998 the MHRT, after reviewing the applicant's case again, recommended his transfer to a less secure unit. However the Secretary of State refused the transfer. In December 1998, Dr. Sagar, a psychiatrist, considered that the applicant was in a state of natural remission as he had not been taking medication for 18 months. On 31 May 1999, Dr. Gandhi (a psychiatrist instructed by the applicant's solicitors) considered that the applicant was no longer suffering from a mental disability under the MHA and therefore his detention was unjustified.
On 7 June 1999 there was a third MHRT hearing which heard evidence from Doctors Sagar, Gandhi and Page as well as from a representative of the Secretary of State for the Home Department. Both Dr Page and the Secretary of State's representative opposed the proposed conditional discharge of the applicant. In spite of this opposition the MHRT held that:
“having considered all the medical evidence we have come to the conclusion that the applicant is not now suffering from mental illness of a nature or degree which necessitates his detention in hospital for medical treatment, but having regard to the serious nature of the condition he suffered and the possibility of recurrence we do consider it appropriate for the patient to remain liable to be recalled to hospital for treatment.
We adjourn the hearing until 1 December 1999 at the latest for a full care plan to be drawn up. The terms which we consider should probably be attached to the Conditional Discharge are:-
1) Supervision by a named Social Worker
2) Supervision by a named forensic psychiatrist; the appellant to be subject to the directions of the Psychiatrist including any relating to drug monitoring
3) Residence at a suitable hostel, preferably staffed 24 hours a day.
If it is considered that he should be excluded from any area because of the presence there of the victim we should be given full details of the area proposed.
We require Haringey Council to provide full details of a suitable plan at the adjourned hearing.”
On 3 February 2000 the tribunal reconvened and decided that the applicant should be transferred to a medium security unit. A conditional discharge order was then made. The terms of the discharge were as follows:
“4. Decision of the tribunal:
(d) The patient shall be discharged from liability to be detained but the discharge is deferred until satisfactory arrangements have been made to meet the conditions set out at (7) below. ...
6. Findings of the Tribunal concerning the statutory criteria
The tribunal is obliged to direct the absolute discharge of the patient if the answer to any of the following questions (A) or (B) is 'yes' and the answer to question (C) is also 'yes'.
A. Is the tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or from any of those forms of disorder of a nature or a degree which makes it appropriate for the patient to be detained in a hospital for medical treatment? Yes
B. Is the tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment? Yes
C. Is the tribunal satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment? No
7. Conditions imposed by the tribunal (conditional discharge only): And the reasons for the tribunal's decision.
Having considered the reports and correspondence from Haringey Social Services and the Enfield and Haringey Health Authority, and having heard the evidence of Miss Milne of the Haringey Social Services we are very concerned that no supervising psychiatrist has yet been identified and as a result no care plan has been put in place. For the reasons given on 7 June 1999, we make a conditional discharge order in the following terms: (1) There shall be supervision by a named social worker, (2) there shall be supervision by a named psychiatrist, preferably by a forensic psychiatrist; (3) the applicant shall be subject to the directions of the psychiatrist including any relating to drug monitoring; (4) the applicant shall reside at a suitable hostel, preferably a hostel staffed 24 hours a day; (5) the applicant shall be excluded from Enfield, Harringey and Islington save for the purpose only of visiting his relatives in their homes. In the event that his psychiatrist or supervising social worker wishes to vary the exclusion zone for the purposes of implementing the conditions of this order as to treatment and/or residence application may be made for that purpose. The applicant's discharge shall be deferred until the arrangements listed have been made.”
At the time this order was made it was not challenged by the applicant. Unfortunately, the local authorities were unable to find a forensic psychiatrist to supervise the applicant. To find a psychiatrist required the cooperation of North London Forensic Service, who refused to provide a psychiatrist, basing their refusal on the fact that they considered the applicant's release into the general public to be premature and dangerous.
In 2001, the applicant applied for judicial review. He asked the court to consider whether the MHA's provisions governing conditional discharge and deferral were consistent with Article 5 of the Convention as interpreted in Winterwerp v. Netherlands (judgment of 24 October 1979, Series A no. 33) and Johnson v. United Kingdom (Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997VII), in particular concerning the MHRT's lack of power to secure compliance with its conditions and, in the event of a failure of the health authority to secure compliance with its decision, its inability to reopen and reconsider the case. The applicant also made a claim for damages.
On 25 July 2001, the High Court, when granting permission for judicial review, suggested that meanwhile the Secretary of State refer the case back to the tribunal, which he did.
Further hearings were held by the MHRT in January and March 2002. On 25 March 2002 it was recommended that the applicant remain in hospital as it was satisfied, notwithstanding the earlier decisions, that the applicant was and always had been suffering from a mental illness which was in remission but with a significant risk of relapse, that it was appropriate for the applicant to be detained in hospital for the treatment of his illness and that the evidence of the need for hospital treatment was compelling.
On 5 December 2001, after a hearing at which the applicant was represented, the Administrative Court judge found that it was a least arguable that the applicant had been detained unlawfully for a period of a few months after February 2000 and that in breach of Article 5 §§ 1 and 4 he had been left in limbo for 21 months. He did not however consider that there was breach of these provisions based on a lack of power to ensure that the condition of psychiatric supervision was implemented within a reasonable time. While he did not see how any order that a medical practitioner supervise a patient in the community could be enforced against his professional principles, he considered that the relevant legislation could be given effect to in a way compatible with the Convention, namely that an MHRT could make a deferred direction for conditional discharge enabling the tribunal to monitor attempts to comply with reasonable conditions and to amend the deferred conditional discharge in the light of difficulties encountered by the authorities.
The applicant was given permission to appeal to the Court of Appeal.
On 15 May 2002, the Court of Appeal held concerning Article 5 § 4 :
“... we agree that Article 5 § 4 was infringed. If after a tribunals decides that it is appropriate to direct a conditional discharge of a patient, that patient remains detained without access to the tribunal for an unreasonably long period while unsuccessful attempts are made to make arrangements that will enable the conditions to be satisfied, Article 5 § 4 is clearly infringed. That is what happened on this occasion. ... no attempt was made ... to revert to the third tribunal, but no doubt this was because the decision in Campbell's case was believed to preclude this. In practice it would clearly have done so. In the light of that decision the tribunal would not have felt able to entertain an application on behalf of [the applicant] to reconsider the position.”
The Court of Appeal went on to review the Campbell authority, noting that no reference had been made to the provisions of the Convention or relevant case-law and that the Secretary of State accepted that it needed to be revisited in the light of the Human Rights Act 1998. Having given consideration to various cases, it proceeded to outline a new regime compatible with the requirements of the Convention and the legislative provisions as follows:
“1. The tribunal can at the outset, adjourn the hearing to investigate the possibility of imposing conditions.
2. The tribunal can make a provisional decision to make a conditional discharge on specified conditions, including submitting to psychiatric supervision, but defer directing a conditional discharge while the authorities responsible for after-care under section 117 of the Act make the necessary arrangements to enable the patient to meet those conditions.
3. The tribunal should meet after an appropriate interval to monitor progress in making these arrangements if they have not by then been put in place.
4. Once the arrangements have been made, the tribunal can direct a conditional discharge without holding a further hearing.
5. If problems arise with making arrangements to meet the conditions, the tribunal has a number of options, depending on the circumstances (a) it can defer for a further period, perhaps with suggestions as to how any problems can be overcome; (b) it can amend or vary the proposed conditions to seek to overcome the difficulties that have been encountered; (c) it can order a conditional discharge without specific conditions, thereby making the patient subject to recall; (d) it can decide that the patient must remain detained in hospital for treatment.
6. It will not normally be appropriate for a tribunal to direct a conditional discharge on conditions with which the patient will be unable to comply because it has not proved possible to make the necessary arrangements.”
The Court of Appeal considered that if despite best endeavours a health authority was unable to provide the necessary services or supervision, the tribunal would have to think again and it would be likely that it would conclude that it was necessary for the patient to remain detained in hospital in order to receive the treatment or care. If the health authority did not make best endeavours it could be subject to judicial review. If psychiatrists who foiled the intention of the tribunal were in breach of a public law duty the patient would also have a remedy under judicial review. If they were not in breach of duty, it was likely to follow that the Convention did not require psychiatrists to administer treatment or supervision in the community when, as a result of professional judgment made in good faith, they were not prepared to undertake this responsibility.
On 13 November 2003, the House of Lords dismissed the applicant's appeal and upheld the judgment of the Court of Appeal. In giving his judgment, Lord Bingham found a breach of Article 5 § 4 in that the MHRT, having made its order, was precluded from reconsidering the case leaving the applicant in limbo for a period longer than was acceptable under the Convention and endorsed the views of the Court of Appeal on the regime to be followed in future. However, Lord Bingham also concluded that there was no time between 3 February 2000 and 25 March 2002 in which the applicant was unlawfully detained or held in breach of Article 5 § 1(e). He found a categorical difference between the circumstances of Johnson (cited above), where the Winterwerp criteria had not been found to be satisfied and the situation of the applicant, where there had never been a medical consensus or finding by the MHRT that the Winterwerp criteria were not satisfied. The written statement of the chairman of the MHRT dated 28 March 2002 made it clear that continued detention was not considered necessary as long as the conditions were fulfilled and that the removal of the condition for psychiatric supervision would have changed their view as to the possibility of his release :
“The tribunal considered that the [applicant] could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. The [applicant] was never detained when there were no grounds for detaining him.”
In addition, it considered that the health authorities had done their best to comply with the conditions and had no power to require a psychiatrist to act against his conscientious professional judgment. It further concluded that the violation of Article 5 § 4 did not call for an award of compensation as the violation had been publicly acknowledged and the applicant's right thereby vindicated, the law had been amended in a way which should prevent similar violations in future and the applicant had not been the victim of unlawful detention which Article 5 was intended to avoid.


ITEMID: 001-89504
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KHAYLO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicants were born in 1954 and currently live in Kyiv.
6. In 1998 the applicants paid Mrs N.T. and Mrs T.T. the purchase price of a house located at D. street in Dnipropetrovsk and moved into it. Instead of registering the transaction in accordance with the applicable law, however, the applicants had the nominal house owners issue an authorization to Mr B., to whom the first applicant owed a debt, allowing him to perform any transactions relating to the house. As a result of the first applicant defaulting on his debt, in September 1999 Mr B. signed this house over as a gift to his daughter, although the applicants continued to live in it.
7. In 1999 Mr B. instituted civil proceedings against the applicants seeking repayment of the debt and various compensatory payments. The applicants lodged a counterclaim, seeking to confirm the validity of their unregistered purchase of the house. By the final decision of 29 August 2007 the claims of both parties were dismissed.
8. Since 1999 the applicants also lodged numerous complaints with law enforcement authorities alleging that they had been deprived of their house and money by gang members and that their lives were in danger on account of threats from Mr B. In support of their allegations, the applicants submitted tapes of their telephone conversations with Mr B., in which he had referred to his organized crime connections.
9. Criminal proceedings were instituted, in which Mr A.Kh., the first applicant’s cousin and a member of the applicants’ household, born in 1957, acted as one of the witnesses.
10. On 3 May 2001 the applicants’ family was provided with police bodyguards to secure their safety in connection with these proceedings. On 1 November 2001 the measure was lifted with reference to the first applicant’s inappropriate behaviour towards the guards. By the final decision of 2 September 2002 the Supreme Court upheld the earlier decisions finding the lifting of the measure lawful. The applicants subsequently made unsuccessful attempts to have the matter reopened.
11. Mr B. was eventually tried, but acquitted of extortion, as the applicants’ tapes were not admitted as permissible evidence. However the applicants insisted on bringing various other criminal actions against him, some of which appear to be currently pending.
12. At 9 a.m. on 30 April 2002 the applicants informed the Zhovtnevyy District Police that they had found Mr A.Kh. dead in his bed in the annex to their house at D. street.
13. On the same day several police officers and medical experts in presence of lay witnesses broke into the annex which was purportedly locked from the inside. A decomposing corpse was found in the bed on its back, with the head on the pillow. The group recorded no traces of a struggle or other evidence suggesting homicide. Pictures of the site were taken; however, they could not be developed on account of a defect in the film. The body was taken to the mortuary. However, as 1 May was a national holiday, the autopsy was not carried out until 2 May 2002. According to the applicants, no precautions were taken to prevent decomposition of the body in the mortuary.
14. Following the autopsy of 2 May 2002, the experts found it impossible to establish the cause of the death as the body had significantly decomposed. They further noted that no broken bones or other visible injuries could be found on the body. Finally, they suggested that the death, which must have occurred on or around 28 April 2002, was likely to have been caused by atherosclerosis of brain and heart vessels.
15. On 20 May 2002 the police decided not to institute a criminal investigation in relation to the death having found no appearance of a homicide.
16. The applicants appealed maintaining that Mr A.Kh. could have been killed late 28 April 2002 by a gang in which Mr B. was involved or by other members of organized crime groups who feared him as an important witness in criminal proceedings, in which the applicants were the aggrieved parties. They noted, in particular, that they had found rubber gloves and a hammer of an unknown origin on the table in his room, which could have been used to murder Mr A.Kh. Furthermore, Mr A.Kh.’s height according to his records had been 196 cm, while the height of the autopsied corpse was recorded as being 177 cm. Finally, Mr A.Kh. had no record of atherosclerosis or any other life-threatening illness.
17. On 4 June 2002 the Dnipropetrovsk Prosecutors’ Office remitted the case for additional investigation. It found, in particular, that in light of the second applicant’s report about having seeing Mr A.Kh. alive on the evening of 28 April 2002, it was strange that his body had decomposed so rapidly. It further noted that a photographic record of the site had not been prepared, the deceased’s medical record had not been checked and the applicants’ assertion that he could have been killed by individuals involved in organized crime had not been investigated.
18. Subsequently on numerous occasions (20 June 2002, 18 July 2002, 21 October 2002, 7 January 2003 and 26 March 2003) the law enforcement authorities refused to initiate criminal proceedings having found no evidence of a homicide. All of these decisions were subsequently annulled by the prosecutors’ office (on 10 July 2002, 27 September 2002, 2 January 2003, 12 February 2003 and 1 October 2003) as having been based on only superficial inquiries.
19. On 22 October 2003 the Zhovtnevyy District Prosecutors’ Office refused to initiate criminal proceedings. Following additional questioning, it found, in particular, that the difference in height could have been due to a clerical error by mortuary personnel. As regards the gloves and the hammer, although certain witnesses had recalled seeing them, these objects were no longer available and it was not possible to determine their origin. Furthermore, although no mention of atherosclerosis or any other life-threatening illness had been found in Mr A.Kh’s medical records, regard being had to the fact that the annex had been locked from inside, no traces of any struggle or disorder had been noticed in the room and no injuries had been found on the body, there was no reason to suspect a homicide.
20. On 6 April 2004 the Zhovtnevyy District Court of Dnipropetrovsk annulled this decision and remitted the case for additional investigation. It referred to several omissions in the preliminary inquiries, such as the failure to measure the body at the site, failure to establish a probable cause of death against the absence of any record concerning atherosclerosis and the superficial examination of the door to the annex. In particular, the results of the investigation stated that the door could only be locked from the inside, while, according to a photographic record of the scene, the door had both a lock and a padlock.
21. On 1 February 2005 the law enforcement authorities refused to institute criminal proceedings.
22. On 21 April 2005 the General Prosecutors’ Office annulled this decision, having found that the’ Office.
23. On 10 March 2006 the Prosecutors’ Office discontinued the criminal proceedings having found no evidence of a homicide. It noted, in particular, that due to the lapse of time witnesses could not accurately recall certain details. On the other hand, the witnesses clearly recalled having seen no traces of a struggle or other signs of a homicide. Mr B., implicated by the applicants as being involved in the murder, could not be interviewed as he had moved abroad. His son-in-law denied any family involvement in Mr A.Kh.’s death. The discrepancy in the records concerning Mr A.Kh.’s height appeared to be due to a typographical error by the mortuary registrar. The gloves on the table had been left by one of the medical experts. As regards the hammer, the first applicant had mentioned having taken it together with the gloves and Mr A.Kh.’s linen, but its existence was doubtful as he had refused to surrender these objects without explanation. The investigation further found that the applicants’ hypothesis that Mr A.Kh. had been killed late on 28 April 2002 was improbable, in particular, as the case file records contained a certificate from Mr A.Kh.’s employer that he had undergone a medical test on the morning of 29 April 2002.
24. In June 1999 the first applicant offered the family’s other house, located at V. street in Dnipropetrovsk, as collateral for a bank loan of 200,000 hryvnyas (UAH). In June 2000 the house at V. street was sold in default at a public auction to Mr R.K. In September 2002 Mr R.K. leased it out to Mr S.K., who moved in with his family.
25. The applicants unsuccessfully attempted to secure the criminal conviction of the individuals implicated in the sale and instituted civil proceedings, claiming back the house. As appears from scarce documents presented by the applicants, these proceedings are currently still pending.
26. Pending examination of their proceedings for annulment of the sale, on 15 October 2002 the applicants broke the lock on the door and entered the house with their three acquaintances – Mrs Ch., Mrs S. and Mr O.V. They refused to leave the house at the tenants’ request. An argument and a fight between the tenants and the applicants broke out. The police were allegedly called, but the applicants explained that they were the owners of the house and the police left. Several hours later Mrs Ch. and Mrs S. left, while the applicants and Mr O.V. remained for the night.
27. At about 10 a.m. on 16 October 2002 the tenants called the police again, complaining about the applicants’ and Mr O.V.’s obnoxious behaviour: smoking inside the house, putting pressure on them to leave, threatening them and swearing at them. Several police officers from the special detachment responsible for keeping order in courts entered the premises and ordered the applicants and Mr O.V. to follow them out of the house. The applicants and Mr O.V. protested. The first applicant and Mr O.V. were eventually restrained and handcuffed and the group was brought to the police station. According to the police records, the applicants stayed in the police station from 11 a.m. to 14 p.m. pending the drawing up of a report about an administrative offence. According to the applicants, they stayed in the police station for seven hours.
28. On the same date the first applicant and Mr O.V. stood trial before the Zhovtnevyy Court accused of “malicious resistance to the lawful demands of law-enforcement officers” (an administrative offence). They were accused, in particular, of grabbing the officers by their uniforms, pushing them, threatening and swearing at them in response to their demands to cease disorderly conduct. The court discontinued the administrative proceedings having found that the defendants’ conduct at the house warranted a criminal investigation on account of the possible trespass of the dwelling. The case was remitted to the Zhovtnevyy District Prosecutors’ Office. Subsequently (on 23 October 2002) the Prosecutors’ Office decided not to press charges in relation to the trespass. They found that the defendants’ actions could potentially qualify as infliction of minor bodily injuries on Mr S.K. and vigilantism, which could be prosecuted privately by the aggrieved party.
29. At the same time, following the first applicant’s medical examination of 17 October 2002, he was certified as having sustained light bodily injuries (several bruises and a scratch on a finger), which could have been inflicted on or around 16 October 2002. On 21 November 2002 the second applicant was certified as having sustained in the same period light bodily injuries resulting in short-term health problems (cerebral concussion, for which she had undergone out-patient treatment).
30. The applicants sought to institute criminal proceedings against the police officers for assault and battery, infliction of bodily injuries, disorder, racketeering, abuse of office and premeditated unlawful apprehension and detention.
31. On 14 November 2002 and 17 December 2002 their requests were rejected following preliminary inquiries and the interviews of the parties involved for lack of any evidence suggesting criminal conduct on the officers’ behalf.
32. On 10 October 2003 the Zhovnevyy Court remitted the case for additional investigation. The court found, in particular, that the investigation had only established that the applicants were apprehended for good cause,
33. On 10 December 2003 the Dnipropetrovsk Regional Court of Appeal upheld this decision.
34. On 3 February 2004 the Prosecutors’ Office refused to initiate criminal proceedings. It found, in particular, that the cerebral concussion as well as other injuries had been sustained in the course of the fight with the tenants on 15 October 2002 and that the force used by the police officers to restrain and arrest the applicants had not been disproportionate. The investigation referred, primarily, to the testimonies of the police officers and other parties involved. In particular, the applicants testified that they had been battered by the tenants on 15 October 2002; the tenants complained that they had been forced to defend themselves against the applicants, who had beaten them; Mrs Ch. and Mrs S. reported having seeing Mr S.K.’s wife beating the second applicant with a slipper on the head and banging her head against the wall. Several other witnesses reported having seen the police officers taking the first applicant and Mr O.V. handcuffed out of the house, while the latter were resisting and swearing.
35. On 24 May 2004 the Zhovtnevyy Court upheld this decision following contested proceedings. On 27 April 2005 the Dnipropetrovsk Regional Court of Appeal rejected the applicants’ appeal.
36. In July 1999 the applicant lent UAH 130,000 to Messrs V. and R., who were leaders of local NGOs. They had requested the loan allegedly for the arrangement of transportation of humanitarian aid (clothes and shoes) donated by a U.S.-based foundation, although according to relevant documentation the donor was responsible for all transportation costs. Subsequently the first applicant was repaid some one third of the loan and given some 4,000 kilos of goods from the humanitarian aid cargo, which he stored in the house at D. Street and subsequently surrendered to the police.
37. In December 1999 the applicants lodged various criminal complaints about having been allegedly defrauded by Messrs V. and R., who had never repaid the sum loaned to them for the transportation of humanitarian aid. Eventually, on 21 April 2000 the Dnipropetrovsk Prosecutor instituted a criminal investigation into the circumstances surrounding the transportation and distribution of the cargo. The alleged perpetrators were questioned in these proceedings as witnesses.
38. Although it appears that no formal charges were brought against Messrs V. and R., on 28 April 2000 the first applicant was admitted in the proceedings as an aggrieved party and eventually (in September 2001) as a civil claimant. The second applicant appears to have been questioned only as a witness.
39. On 30 October 2000 the proceedings were discontinued for lack of evidence of criminal conduct towards the aggrieved party.
40. On 26 December 2000 the General Prosecutors’ Office ordered the resumption of the proceedings.
41. Between April 2000 and February 2004 the investigative authorities interviewed numerous recipients of the aid and officials involved in its distribution; ordered several financial expert assessments, commissioned the collection of information from the U.S.A. donor organization and examined several volumes of documents concerning the distribution of the aid.
42. Messrs V. and R. acknowledged having received the money from the first applicant. However, they alleged that a portion of it had been repaid in cash. The remaining amount was, in their opinion, the price paid by the first applicant for purchasing part of the cargo. The first applicant intended to sell it for profit, in spite of the fact that he had been aware of the statutory ban on selling humanitarian aid and about the official undertaking of the U.S. donor to pay all transportation costs. The applicant had received his part of the cargo in October 1999, so Messrs V. and R. had discharged their civil obligation in his respect.
43. The first applicant, for his own part, disputed the exact amount of cash repaid to him and contended that he had never intended to sell the goods. He had merely agreed to store a portion of the cargo as a guarantee for repayment of the remainder debt.
44’s and R.’s possible abuse of office in handling humanitarian aid. As regards their involvement in defrauding the first applicant, on 11 February 2004 the proceedings were discontinued for lack of evidence of criminal conduct and in view of the private-law nature of the dispute between the parties. Both applicants appealed against this decision. Their appeals were dismissed by the courts of three levels of jurisdiction on 27 May and 20 September 2004 and 24 May 2005 respectively.
45. In the meantime, on 19 July 2005 the proceedings were re-opened pursuant to an order of the General Prosecutors’ Office and finally discontinued on 28 December 2006, essentially on the same grounds as before. The applicants’ appeals against the decision to discontinue the proceedings were rejected by the courts of three levels of jurisdiction.
46. In March 2002 the applicants instituted civil proceedings in the Zhovtnevyy District Court of Dnipropetrovsk seeking various compensatory payments from Messrs V. and R.
47. On 11 April 2006 the Zhovtnevyy Court left their action without consideration referring to the applicants’ numerous failures to appear at the hearings. The court noted, in particular, that the second applicant had appeared only once (on 21 May 2002). Neither applicant had appeared at the hearings scheduled for 4 October, 7 November and 13 December 2005, 20 January, 27 February, 20 March and 11 April 2006, having presented either unsatisfactory or no excuses. In light of all of the above, the court concluded that the applicants had no genuine interest in pursuing their case and left their action without consideration.
48. The applicants appealed. They have not informed the Court about the outcome of the appeal.
49. In September 2003 Mr R. was hospitalised with cerebral concussion and bruises all over his body. On 29 October 2005 a criminal investigation of the incident was discontinued in view of the probability that Mr R., being heavily intoxicated, had fallen from an elevated surface. The applicants demanded the resumption of the investigation, alleging that Mr R. had been battered by gang members in order to prevent his testifying in criminal proceedings related to their property interests. Their appeals were ultimately dismissed by the courts as lacking locus standi.
50. The applicants further contended that the gang members made several attempts to kill them, in particular in June 2002 by way of instigating a traffic accident.
51. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgments in the cases of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006), and Yakovenko v. Ukraine (no. 15825/06, §§ 46-47, 25 October 2007).
52. According to Article 221 of the Code of Civil Procedure of 18 July 1963, the courts were obliged to suspend civil proceedings in the event of the impossibility of determining the case pending determination of a criminal case. The new Code of Civil Procedure, adopted on 18 March 2004, reflected the same obligation in Article 201.
VIOLATED_ARTICLES: 2


ITEMID: 001-102794
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF SOKOLOVSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicant was born in 1940 and lives in the city of Kharkiv.
5. In 1989 a family consisting of husband and wife, S.N. and P.V., respectively, and P.O., the daughter of P.V., was granted the tenancy of a publicly-owned apartment. In 1995 S.N. and P.V. divorced.
6. In November 1996 P.V. and P.O. instituted civil proceedings in the Kyivsky District Court of Kharkiv (“the District Court”) against S.N., seeking to declare that the latter was no longer entitled to live in the apartment in question. S.N., in turn, lodged a counterclaim, seeking to have his property right over the disputed apartment acknowledged.
7. On 18 March 1997 the court allowed the claim of P.V. and P.O.
8. In March 1998, following privatisation procedures, a “property certificate” (приватизаційний сертифікат) was issued to P.V. and P.O. for the apartment.
9. However, on 14 July 2000, following an application for supervisory review (protest), the Kharkiv Regional Court (after June 2001 the Kharkiv Regional Court of Appeal; “the Court of Appeal”) set aside the judgment of 18 March 1997 and remitted the case for fresh consideration.
10. On 16 December 2000 P.V. and P.O. sold the apartment to the applicant.
11. On an unspecified date in November or December 2001, S.N. lodged additional claims, seeking to have the apartment’s sales contract declared null and void and to have the applicant evicted. According to a copy of the court records provided by the applicant, he has been participating in the proceedings as a third party since 16 January 2002. On the same date the District Court attached the disputed apartment. Subsequently, on a number of occasions, the applicant requested the court to lift its attachment but this was to no avail.
12. On 2 June 2002 the applicant lodged a counterclaim against S.N., seeking a declaration that the contract was valid and that he was a bona fide purchaser. On 5 June 2002 the District Court ruled to consider this claim at the same time as other claims lodged by S.N.
13. On 17 March 2004 the District Court allowed the claims of P.V., P.O. and the applicant, and dismissed the claims of S.N. In particular, it found that S.N. was no longer entitled to live at the disputed apartment, declared the sales contract valid and acknowledged that the applicant was a bona fide purchaser. S.N. appealed.
14. Between June 2004 and April 2005 the courts examined the admissibility of S.N.’s appeal. On 7 April 2005 the Court of Appeal extended the time-limit during which the parties could lodge an appeal against the judgment of 17 March 2004. According to the applicant, the courts did not inform him about the hearings on the appeal and the decisions were not delivered to him in good time.
15. On 26 May 2005 the Court of Appeal quashed the judgment of 17 March 2004 and remitted the case for fresh consideration. On 6 July 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, dismissed the appeals in cassation of P.V., P.O. and the applicant, and upheld the decision of 26 May 2005.
16. On 20 November 2007 the District Court took over the case.
17. On 10 December 2007 S.N. lodged a request to transmit the case to another court. On 26 December 2007 the District Court allowed his request. On 7 February 2008 the Court of Appeal quashed the ruling of 10 December 2007.
18. The proceedings are still pending before the first-instance court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95527
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: HUUHTANEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms Seija Kyllikki Huuhtanen, is a Finnish national who was born in 1944 and lives in Helsinki. She was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had been employed by the Unemployment Appeal Board (työttömyysturvalautakunta, arbetslöshetsnämnden) since 1996. On 4 April 2002 she resigned from her post due to stress caused by a bad working atmosphere.
The applicant applied for unemployment benefit from her unemployment fund from 5 April 2002 onwards. On 21 August 2002 the fund refused the benefit for the period from 5 April to 3 July 2002. It found that the applicant had not presented any valid reason for her resignation. The fund’s finding was based on the binding statement of the labour commission (työvoimatoimikunta, arbetskraftskommissionen) which had reached this conclusion by four votes to two.
On an unspecified date the applicant requested rectification of the unemployment fund’s decision. This was rejected, again on the basis of the statement of the labour commission concluded by four votes to two.
Before appealing against the fund’s decision to the Unemployment Appeal Board, which was her previous employer and the alleged cause of her resignation, the applicant contacted the Ministry of Justice to ask how her right to impartial proceedings was going to be secured in her case. After receiving a positive reply from the Ministry, she appealed to the Appeal Board, claiming that she had had a valid reason to resign. She claimed that she did not like the working methods at the board, that she had been bullied and that she had developed health problems. She had applied for new jobs all the time while working for the board but without success. She felt that her only option was to resign since otherwise she would have become ill.
The applicant’s case was first prepared in the Unemployment Appeal Board by a referendary, Mr M.E., and was then transferred to another referendary.
On 30 April 2003 the Unemployment Appeal Board rejected the applicant’s appeal. It found that a person who resigns without a valid reason is not entitled to unemployment benefit for three months. The applicant had not had a medically valid reason to resign nor had she presented clear evidence about the alleged bullying. The internal conflicts at the work place should have been solved in some other way than by resigning. The applicant had thus not presented a valid reason for her resignation.
On 9 July 2003 the applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), reiterating the grounds of appeal already submitted in the proceedings before the Unemployment Appeal Board. Moreover, she claimed that all referendaries on the board, and especially Mr M.E., were biased against her and should have been prevented from examining her case.
The Insurance Court asked the Unemployment Appeal Board for some clarifications, which the applicant commented on.
In 2004 and 2005 the applicant called the Insurance Court several times and asked about the state of the proceedings in order to accelerate them. On 2 March 2005 the applicant wrote to the Minister of Justice and complained about the way her case had been treated. On 12 June 2005 the applicant contacted the Secretary-General (kansliapäällikkö, kanslichefen) of the court and asked that the court speed up the proceedings.
On 16 June 2005 the Insurance Court first found that the referendary attached to the Unemployment Appeal Board, Mr M.E., had not participated in the deliberations and had not drafted the decision. In any case, according to the legislation in force, the partiality claims had to be made as soon as the parties learnt about the fact causing the partiality. She had not given a valid reason for failing to do so. As to the merits, the court rejected the applicant’s appeal by referring to the reasoning given in the Unemployment Appeal Board’s decision.
According to section 9, subsection 1, of the Unemployment Security Act (työttömyysturvalaki, lagen om utkomstskydd för arbetslösa, Act no. 602/1984, as in force at the relevant time), those who have resigned from their employment without a valid cause shall not be entitled to a daily unemployment allowance for a period of three months. According to section 3, subsection 3, of the same Act, a labour commission shall issue an opinion, binding on the unemployment fund, concerning the preconditions provided in section 9.
The Unemployment Security Act was revised in 2002 (Act no. 1290/2002). The provisions applicable to the present case have remained unchanged in the revised Act.
Chapter 12, section 3, of the revised Unemployment Security Act provides that the Unemployment Appeal Board is the first-level appeal authority in matters pertaining to unemployment security. The Government shall appoint the Unemployment Appeal Board’s chairman, vice chairmen and other members and their deputies for five years at a time. The chairman, vice chairmen and lawyer members and their deputies shall hold a degree entitling them to hold the post of judge. When taking up their mandates the chairman, vice chairmen and members shall take a judge’s oath or give a judge’s affirmation as provided in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The Unemployment Appeal Board rules on matters concerning the administration of justice in a division, with at least four and at most six members, which is chaired by the chairman or vice chairman of the Board. The decisions are taken by presentation which means that a referendary presents a memorandum and a draft decision to the members of the court.
Chapter 12, section 3, of the revised Unemployment Security Act further provides that, unless otherwise prescribed elsewhere, the provisions of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Act no. 586/1996) shall apply to the handling of cases by the Board. As far as partiality is concerned, the Administrative Judicial Procedure Act refers to Chapter 13 of the Code of Judicial Procedure.
Chapter 13, section 1, of the Code of Judicial Procedure provides that a judge shall not hear a case if he or she is disqualified on any of the grounds mentioned in the Chapter. This applies also to the other members of the court, the referendaries, record keepers and others who make decisions in court or may be present when the case is decided. The impartiality of a court is an absolute procedural requirement and the court must examine the partiality issues ex officio.
According to Chapter 13, section 6, of the Code of Judicial Procedure, a judge shall be disqualified, inter alia, if, on the basis of a service relationship or otherwise, the judge has such a relationship to a party to the matter that, especially in view of the nature of the matter at hand, there is justifiable reason to doubt the impartiality of the judge in the matter. The travaux préparatoires (HE 78/2000) clarify that a partiality issue arises, for example, when the judge is the employer of the party.
Chapter 13, section 8, of the Code of Judicial Procedure provides that a partiality claim must be made as soon as the parties learn about the fact causing the partiality. This provision allows the parties to make a partiality claim if the partial court or judge has not for some reason acknowledged the partiality ex officio.


ITEMID: 001-107596
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KOVACIK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Remainder inadmissible;Just satisfaction dismissed (out of time)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1974 and lives in Dolný Kubín.
6. On 24 June 2003 the police arrested the applicant. He was accused of planning a robbery and remanded in custody from that date.
7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the preliminary proceedings until 24 January 2005.
8. On 21 January 2005 the public prosecutor indicted the applicant and several other persons before the Žilina Regional Court.
9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004.
10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody.
11. On 25 July 2005 the applicant complained to the Constitutional Court that his detention in the period after 24 January 2005 and the Supreme Court’s refusal to release him were both unlawful.
12. On 30 March 2006 the applicant was released.
13. On 14 June 2006 the Constitutional Court found that the applicant’s right under Article 5 § 1 had been violated in that there had been no judicial decision extending his detention after 24 January 2005 (judgment I. ÚS 217/05). There existed no justification for that situation. Reference was made to the Constitutional Court’s judgments I. ÚS 6/02 and I. ÚS 204/05 (see paragraphs 23-28 below).
14. The Constitutional Court ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed his claim for just satisfaction, holding that (i) its finding as such provided appropriate redress to the applicant and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s practice, which, however, was not in accordance with practice under the Convention.
15. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case.
16. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court can only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it can be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber.
17. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during a trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and, in cases of particularly serious offences, up to five years. Under paragraph 3 of Article 71, a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial.
18. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it or when deciding on the accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately.
19. Article 72 § 2 entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final, unless he or she gives other reasons justifying his or her release.
20. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody.
21. In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 exclusively concerned situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention.
22. Pursuant to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes, on the basis of the file, that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court chamber on continued detention of the accused. However, where the accused applies for release, the application must be decided upon without delay in accordance with Article 72 § 2 of the Code of Criminal Procedure.
23. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years.
24. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings.
25. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 59-61).
26. In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention.
27. In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of an indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted.
28. With reference to its judgment I. ÚS 6/02 of 4 December 2002 the Constitutional Court held that for a detention to be lawful, it must always rely on a court decision.
29. In the above two judgments given in the case of a different co-accused of the applicant, the Constitutional Court found a breach of Article 5 § 1, in that there had been no judicial decision extending the accused person’s detention after the filing of the indictment. In the latter judgment it held, in particular:
“In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure.
However, a court’s decision on detention of a person at the pre-trial stage can constitute a ground for that person’s detention during a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the plaintiff’s detention existed until 25 January 2005. The detention should have been extended by a decision not later than on 25 January 2005 if it was to last after that date. In the absence of any such decision, the restriction of the plaintiff’s liberty after 25 January 2005 was unlawful.
The unlawfulness of the plaintiff’s deprivation of liberty after 25 January 2005 cannot be justified retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the plaintiff’s detention, as it had ended on 25 January 2005. The only existing possibility was to remand the plaintiff in custody again. As this had not happened, his subsequent deprivation of liberty had no legal ground.”
30. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful. It is required that the court dealing with the criminal case following the indictment should take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release.
31. The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006.
32. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of an accused within fifteen days of his or her indictment (or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments.
33. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court’s judgment I. ÚS 6/02 of 4 December 2002.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1