ITEMID: 001-58272
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF GERGER v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, lack of jurisdiction);Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 9. Mr Haluk Gerger is a Turkish national and was born in 1950. He lives in Ankara and works as a journalist.
10. On 23 May 1993 a memorial ceremony was held in Ankara for Denis Gezmiş and two of his friends, Yusuf Aslan and Hüseyin İnan. Together, they had started an extreme left-wing movement among university students at the end of the 1960s. They were sentenced to death for seeking to destroy the constitutional order by violence and executed in May 1972.
The applicant was invited to speak at the ceremony, but was unable to attend and sent the organising committee the following message to be read out in public:
“Dear friends,
Though ill health has prevented me from being with you, I did not want to miss this opportunity to salute you and to express my solidarity with the revolutionary cause.
The Turkish Republic is based on negation of the rights of workers and Kurds. Within the geographical boundaries of this country, any hint of human action, any aspiration for freedom, any claim to assert the rights of the workers and the Kurds has always met with a reaction on the part of the rulers that has been ruthless in its denial and destruction. It has to be said that, because of their origins and historic traditions, the rulers have always distinguished themselves through a cruel militarism that is the product of their mediocrity, backwardness, and thirst for ever more money and, lastly, of the fundamental nature of the Republic and its subservience to imperialism. The more the structural crisis of the established order deepened, the more the ruling classes resorted to imperialism and militarism in their desire to bring it to an end.
The rulers, who had condemned the political and social lands of the country to sterile aridity and, in order to break any resistance and stifle any revolt by the masses, had put a chain of dependence around society’s neck and imposed oppressive uniformity upon it, succeeded for many long years in keeping our people in the deep gloom of silence.
However, the 1960s revival, the action organised by dynamic social strata previously excluded from the political life of the country such as the workers, the intelligentsia and young people and, lastly, the revolutionary democratic resistance movement of the early 1970s have helped to transform the history of the nation, and their profound influence can still be felt today.
A red hope is nascent in the tired barren hearts of the workers. A legend is born in the long history of defeat of the oppressed.
From now on, nothing and no-one will be the same!
In the face of the longstanding crisis of the established order, the quest for independence and freedom which at that time became ingrained in society’s conscience, in the collective memory of the toiling masses, in the memory of the young and the intelligentsia and in the conscience of the workers henceforth constitutes a refuge for society. The spirit of resistance and revolt of those heroic years, a nightmare for the rulers, has been with the country for more than twenty years. The socialist flag, which was borne aloft at the time and is representative of the only system capable of replacing the incumbent capitalist system, is still flying. From the seeds of liberation of the Kurdish people sown in those days the guerrilla campaign in the mountains of Kurdistan was born.
As for us, the rivers, streams, torrents and waterfalls that emerged from the sweeping waters of those years, we are now flowing on toward the final release of mankind, across the plains formed by our class, our people and democracy into the ocean of liberty of a classless society. Like many Denizes [a reference to Deniz Gezmiş, whose first name means “the sea” in Turkish], we head towards the seas of freedom.
Today, before the Ocean of Liberation, on these fertile alluvia formed of our solidarity and unity in the struggle, we hail those who have been invited to the heavenly feast.
Hail, friends!
Hail to those who are marching ‘Towards Future Times, Like many Denizes’!
Hail to you,
the rose Deniz, the rose Yusuf, the rose Hüseyin... the three roses of Karşıkaya planted on the branch of my heart the three roses of Karşıkaya planted in the spring of my tears with all their flowers of blood.”
11. On 6 August 1993 the Public Prosecutor at the Ankara National Security Court (“National Security Court”) accused the applicant of disseminating propaganda against the unity of the Turkish nation and the territorial integrity of the State. In order to request the application of section 8(1) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 19 above), he relied on passages from Mr Gerger’s message, which had been recorded when read out at the memorial ceremony (these are the passages that appear in italics in paragraph 10 above).
12. Mr Gerger pleaded not guilty before the National Security Court, which sat as a chamber of three judges, including a military judge. He did not dispute having drafted the message, but maintained that he had never intended to promote separatism.
13. On 9 December 1993 the National Security Court found the applicant guilty of the offence under section 8(1) of Law no. 3713 and sentenced him to one year, eight months’ imprisonment and a fine of 208,333,333 Turkish liras (TRL).
The judgment was delivered by a majority of two to one, the military judge dissenting. The latter explained in his dissenting opinion that, in his view, the offence of disseminating separatist propaganda under section 8(1) of Law no. 3713 had not been made out, but that there had been non-public incitement to commit a crime and, consequently, Article 312 § 2 of the Criminal Code (see paragraph 18 below) should have been applied.
The other two members of the chamber found that passages such as: “... From the seeds of liberation of the Kurdish people sown in those days the guerrilla in the mountains of Kurdistan was born... As for us, the rivers, streams, torrents and waterfalls that emerged from the sweeping waters of those years, we are now flowing on ... across the plains formed by our class, our people and democracy...” (see paragraph 10 above), amounted to separatist propaganda against the unity of the Turkish nation and the territorial integrity of the State. In their view, the applicant’s conviction was justified by the message – whose wording was not in issue – taken as a whole.
14. In a judgment of 22 April 1994, the Court of Cassation dismissed an appeal by the applicant.
15. On 23 September 1995 the applicant completed his prison sentence. However, as he had not paid the fine that had been imposed, he was kept in detention pursuant to section 5 of the Execution of Sentences Act (Law no. 647), being required to serve an additional day’s imprisonment for every TRL 10,000 due (see paragraph 21 below).
On 26 October 1995 Mr Gerger paid the balance of the fine and was released.
16. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. Inter alia, it reduced the length of prison sentences that could be imposed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 19 below). In a transitional provision relating to section 2, Law no. 4126 provided that sentences imposed pursuant to section 8 of Law no. 3713 would be automatically reviewed (see paragraph 20 below).
17. Consequently, the National Security Court reviewed the applicant’s case on the merits. On 17 November 1995 it imposed an additional fine of TRL 84,833,333, with payment suspended. That decision became final on 15 March 1996.
18. Article 312 of the Criminal Code reads as follows:
“Non-public incitement to commit an offence
A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a ... fine of from six thousand to thirty thousand Turkish liras.
A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one third to one half.
The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”
19. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), has been amended by Law no 4126 of 27 October 1995, which came into force on 30 October 1995. Sections 8 and 13 read as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.”
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.”
"“Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct.
…
The first and second paragraphs of section 19 … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.”
20. The Law of 27 October 1995 contains a “transitional provision relating to section 2” that applies to the amendments which that law makes to the sentencing provisions of section 8 of Law no. 3713. That transitional provision provides:
“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.”
21. Law no. 647 prescribes rules through, inter alia, the following provisions, regarding the collection of fines and automatic parole.
“The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits...
If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor...
The sentence of imprisonment thus substituted for the fine may not exceed three years…”
“… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct...”
22. The relevant provisions of the Code of Criminal Procedure concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows:
“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.
Non-application or erroneous application of a legal rule shall constitute unlawfulness.”
“Unlawfulness is deemed to be manifest in the following cases:
1- where the court is not established in accordance with the law;
2- where one of the judges who have taken the decision was barred by statute from participating;
...”
23. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code – see paragraph 18 above), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 19 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence.
Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the judgments of 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/ 87) and 17 June 1998 (no. 1998/133).
As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence.
24. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:
“There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”
The composition and functioning of the National Security Courts are subject to the following rules.
25. The constitutional provisions governing judicial organisation are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
“Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution”
“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.
National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.
The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.
Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.
Appeal against decisions of National Security Courts shall lie to the Court of Cassation.
...”
“Military legal proceedings
The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”
26. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide:
“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”
“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”
“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”
“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.
Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…
…
If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”
“National Security Courts shall have jurisdiction to try persons charged with
…
(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,
(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.
…”
“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”
“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…
The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”
“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, when a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court”
27. The relevant provisions of the Military Legal Service Act are worded as follows:
“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).
(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.
…”
“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”
“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…
…
The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”
“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”
“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:
A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.
…
B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.
…
The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”
“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”
28. Article 112 of the Military Criminal Code of 22 May 1930 provides:
“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”
29. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5160
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BERG v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Swedish national, born in 1972 and residing in Nordmaling. She is represented before the Court by Mr Lennart Hane, a lawyer practising in Stockholm.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 December 1993 the applicant gave birth to a daughter, T. After having received a report from the child welfare centre in February 1994 indicating certain shortcomings of the applicant’s care of T., the Social Welfare Committee (socialnämnden) of Nordmaling started an investigation into the matter. It made several visits to the applicant’s home. The applicant was also provided with various supporting measures, including the assistance of a home help, a family guidance counsellor and a so-called contact family. Furthermore, for some time the applicant and her daughter were staying with a foster family and for another period of time they were admitted to a children’s psychiatric clinic.
The Social Welfare Committee’s investigation ended with the conclusion that the applicant’s care of T. was deficient and constituted a risk to T.’s health and development. As a consequence, T. should be placed with foster parents. As the applicant had discontinued some of the supporting measures she had been provided with, the Committee considered that the placement could not be realised on a voluntary basis. In March 1995, it therefore applied to the County Administrative Court (länsrätten) of Västerbotten for a care order concerning T. The application was made pursuant to Sections 1 and 2 of the Act with Special Provisions on the Care of Young Persons (lagen med särskilda bestämmelser om vård av unga; hereinafter “the 1990 Act”).
The County Administrative Court held a hearing in the case, during which it heard the applicant, her counsel, T.’s counsel and representatives of the Social Welfare Committee. It also heard evidence from four witnesses proposed by the applicant. T.’s counsel supported the Committee’s application.
By judgment of 11 April 1995, the County Administrative Court rejected the Social Welfare Committee’s application. Having noted that the application was based on alleged deficiencies in the applicant’s physical care of her daughter and in the emotional contact between them, the court gave the following reasons for its judgment:
(Translation)
“With respect to [the applicant’s] practical care of [T.], the investigation does not show that there are such serious deficiencies as regards personal hygiene, diet and clothing that the child could be considered badly cared for. Accordingly, there is no reason to order care under [the 1990 Act] on this ground.
As regards the other aspects of the care of [T.], the [court] first notes that [the applicant] gives the impression of being immature and apparently has difficulties in fully understanding her responsibilities as a parent and the needs of a small child. According to assessments made during the investigation, this has led to certain reactions from [T.]. She has, inter alia, avoided eye contact with [the applicant] on some occasions, dissociated herself from her and failed to react when confronted with strangers or when separated [from the applicant]. It is true that these could be considered as worrying signs, but they do not express, in [the court’s] view, any permanent disturbance in [T.’s] ability to relate to other people or other injuries. The question is then whether [the applicant’s] difficulties as a parent will henceforth entail such deficiencies in the care of [T.] that there is a palpable risk of impairment of the health and development of the child. In this respect, [the court] notes that [the applicant] has demonstrated that she is able to accept help and that an improvement has been brought about through the assistance of [the Children’s Psychiatric Clinic]. She has also a continuous positive attitude to [the Children’s Psychiatric Clinic] and is prepared to accept its assistance. Furthermore, the family’s situation is generally more favourable since [the applicant] has found employment and [T.] is with the childminder during working hours. According to the childminder, who gave a reliable impression when giving evidence, the care is working well and [T.’s] behaviour during the day and when brought to and taken home from the childminder does not differ from that of other children. Further, the prospects of a positive development of the relationship between [the applicant] and [T.] will probably be better after the demanding period of infancy. [The applicant’s] social network, principally her parents who have realised her need of support, also contributes in making things easier for [the applicant] and provides [T.] with normal relationships with other people. Even if [the applicant] has been very negative towards the efforts of the family guidance counsellor, she has demonstrated that she is aware of her difficulties and has not categorically rejected the assistance from the social authorities. Consequently, in the [court’s] view, it cannot be considered hopeless for the social authorities to attain a contact based on mutual trust with [the applicant] and provide her with continuous supporting measures trough persons whom she can regard as role models. In these circumstances, [the court] considers that [the applicant’s] situation does not entail the clear risk of impairment to [T.’s] development which is required for compulsory measures under [the 1990 Act].”
The Social Welfare Committee appealed to the Administrative Court of Appeal (kammarrätten) in Sundsvall, which held a further hearing in the case, during which it heard the same persons as the inferior court. Two of the witnesses who had appeared before the County Administrative Court gave evidence also before the Administrative Court of Appeal. In addition, the appellate court heard evidence from a psychologist proposed by the Social Welfare Committee. The psychologist, who gave expert evidence, had not met the applicant or her daughter. T.’s counsel recommended the appeal be granted.
On 31 May 1995 the Administrative Court of Appeal reversed the appealed judgment and, accordingly, ordered that T. be taken into care. The court gave the following reasons:
(Translation)
“The Administrative Court of Appeal shares the County Administrative Court’s view that the physical care of [T.] is not deficient in such a way as to give reason for a care order under the [1990 Act].
What has emerged from the statements in the case, principally the report submitted by [the Children’s Psychiatric Clinic] and the report on the situation in the home from the family guidance counsellor but also the report from the psychologist [E.S.] acting as expert witness for the Social Welfare Committee in the Administrative Court of Appeal, is that serious shortcomings exist in the care of [T.] as regards [the applicant’s] ability to communicate and be emotionally approachable as well as her ability to console; in brief, shortcomings in the relationship between [the applicant] and [T.] which, given [T.’s] age, presumably will lead to a palpable risk to [T.’s] health and development.
The investigation into the case reveals that the support given to [the applicant] has resulted in mother and daughter beginning to interact well, but that [the applicant] still would require considerable support for a long period of time in the form of, inter alia, a family guidance counsellor in the home and closer contact with [the Children’s Psychiatric Clinic] – along with the support of the childminder and other parts of her social network, most of all her parents – in order for [T.] to receive the requisite care and attention. The alternative is that [T.] may bond with another adult in a foster family who, during the first important years of her life, would be able to give her the loving care she needs without contact with the mother being broken.
As concerns [the applicant’s] ability to meet [T.’s] care needs with the help of supporting measures it should be noted that [the applicant], in many respects in her contacts in her working life and with [the Child Psychiatric Clinic] and the Social Welfare Committee, has shown immaturity and dependence on others and also an ambivalent attitude towards the various supporting measures. Against this background and since both the help offered and the help requested have materialised only to a limited extent, there is reason to assume that [the applicant] does not possess the ability or the strength to utilise voluntarily the immense support required to give [T.] the necessary care. Instead, in order to secure such care for [T.], it will probably be necessary to place her outside her home with foster parents in accordance with the Social Welfare Committee’s care plan. As [the applicant] does not consent to this and there are such deficiencies in the care of [T.] that there is a palpable risk of her health and development being impaired, the requisite circumstances exist for [T.] to be taken into care under Section 1, subsection 2 and Section 2 of the [1990 Act].”
On 29 September 1995 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal.

On 8 June 1995 the Social Welfare Committee decided to place T. with foster parents in Bygdeå, about 100 km from Nordmaling. The decision was upheld on appeal by the County Administrative Court on 11 October 1995 and by the Administrative Court of Appeal on 27 October 1995. The Supreme Administrative Court refused leave to appeal on 22 February 1996.
On 28 November 1995, in its review of the case under the provisions of Section 13 of the 1990 Act, the Social Welfare Committee decided to prolong the public care of T. The decision was based on a report dated 6 November 1995, drawn up by officers of the Committee. The report concluded that T. was in need of further care and it was not considered that the applicant’s situation had changed in such a positive way as to give cause for moving T. back home. The applicant was still considered incapable of taking care of T.
The applicant appealed against the decision. The County Administrative Court decided that T.’s further need for care should be examined at the Children and Young People’s Psychiatric Clinic at Umeå Hospital.
Before the County Administrative Court the applicant submitted that, on a voluntary basis, she was now willing to accept the continuation of T.’s placement in a family home during a transitional period, and further that she admitted that she was in need of support in taking care of T. The Social Welfare Committee argued that T. was still in need of care under the 1990 Act. T.’s legal counsel also opposed to a termination of the care order.
In December 1995 the applicant requested that the foster family placement of T. be terminated. On 31 January 1996 the Social Welfare Committee rejected this request.
Following the termination of the examination at the clinic at Umeå Hospital the County Administrative Court ordered the termination of the care under the 1990 Act by judgment of 21 January 1997. In its reasons the court stated that the decision of 2 May 1995 to take T. into care was, inter alia, based on a statement by a psychologist which concluded that the first three years are a very important period in a child’s life. In considering the question of termination the court gave special weight to the fact that T. was now older than three years. The court also considered it to be important that the applicant was now aware that she was in need of support in her care of T. and that she understood that T. could move back home only after a transitional period and not immediately. The court concluded that the applicant at the time was not lacking the ability to take care of T. in such a way that T.’s needs of emotional security and stimulus would be seriously neglected in the case of a reunion between mother and daughter.
The judgment was appealed against by the Social Welfare Committee. On 24 February 1997 the Administrative Court of Appeal rejected the appeal for the following reasons:
(Translation)
“The initial care order for [T.] was based on the fact that, in several aspects, there were serious shortcomings in [the applicant’s] ability to provide [T.] with the care she needed in view of her age and development, inter alia with regard to the possibilities of letting [T.] adequately interact with an adult. Although the matter of interaction does not seem as crucial today, the facts of the case – especially the results of the child psychiatric examination and the hearing of the expert, [B.H.] – indicate that there is still a substantial lack in the ability of [the applicant] to provide care. These shortcomings can be assumed to be of such a character as to lead to a palpable risk to [T.’s] health and development, should steps not be taken in order to handle them.
The Social Welfare Committee has, in this respect, made the assessment that adequate care for [T.] cannot be provided in her own home but that it is necessary for [T.] to stay with a foster family while [the applicant] inter alia through continued contacts with [the Children’s Psychiatric Clinic] gains strength and develops so that she on the one hand learns to better understand and interpret [T.’s] signals, one the other hand is motivated and realises as well the need as the ability to accept the relatively extensive supporting measures necessary to eliminate the shortcomings in her ability to provide care. The reason for this is to make it possible for [the applicant], with continuing supporting measures, to take care of [T.] in her own home after a gradual termination of the placement with foster parents.
In particular as regards the implementation of a transfer from the foster home to the own home the expert has highlighted the risks for [T.’s] health and development of a more abrupt termination of the ongoing placement with foster parents and has recommended that such a transfer in order not to harm [T.] be done gradually over a lengthy period with, for example, mother and child staying at [the Children’s Psychiatric Clinic] and with measures supporting interaction, and that it is then continued with personal and other supporting steps in the own home.
[The applicant], who has now accepted that there are shortcomings in her ability to provide care and that, at present, there is also a risk for [T.] being harmed if she were to be taken care of in [the applicant’s] home, has also expressed that today she is willing to consent to continued foster home placement for an undetermined period of time and that she accepts also otherwise the supporting measures in the form of contacts with [the Children’s Psychiatric Clinic], personal assistance in the own home etc. necessary in order for her to be able to give her daughter the care she needs.
The previous decision by [the Administrative Court of Appeal] as regards the need for a care order was made in the light of the fact that [the applicant] was deemed to lack the ability and strength to utilise voluntarily the support required to give [T.] necessary care in her own home and that a placement outside the home was therefore necessary. At that time [the applicant] did not consent to that form of care.
Taking into account what has previously occurred and not least the results of the psychiatric examination and the hearing of the expert, there are also today grounds for doubt as regards [the applicant’s] ability to realise the need for necessary support in order to be able to provide care for [T.] in her own home. In this respect no decisive change seems to have taken place as regards [the applicant’s] own personal development since [T.] was taken into care but [T.] is still in need of care outside her own home. Care in a foster home is necessary today not only because a sudden discontinuation in itself would be harmful for [T.] but foremost because [T.] cannot be expected to receive the necessary care in her own home even if [the applicant] is given special support. In contrast to the previous situation, however, [the applicant] now consents to a placement of her daughter with a foster home for a transitional period.
In the light of [the applicant’s] attitude as regards the question of further care outside her own home it must first be assessed whether the necessary care for [T.] can be provided on a voluntary basis. These measures would consist of a placement with foster parents until further notice and of an immediately initiated continuing and active work by the Social Welfare Committee in order to motivate and try to make [the applicant] realise as well [T.’s] need of care as her own possibilities to meet this need with the help of active support. By a gradually more intensified right of access, [T.] can be transferred to her own home when both [T.] and [the applicant] are deemed mature enough to handle that.
The question at present is not, however, whether [the applicant] has the ability or the strength to meet the necessary extensive and interfering measures needed as well before a transfer is possible as, if it is carried out, after [T.] is placed again in her own home, but primarily whether [the applicant] is likely to interfere with an ongoing voluntary placement with foster parents before it is possible to ascertain that the necessary care can be provided for [T.] in her own home by [the applicant] with the support provided by society.
In this respect it should first be noted that she herself as well as her father, who has continuously as counsel for her daughter acted actively in concert with [the applicant], clearly expressed that she accepts a continued placement with foster parents and that she realises that an expeditious transfer would be detrimental to [T.]. Furthermore, it should be taken into account that [the applicant’s] actions so far evidently have been characterised to a relatively large extent by passivity. The reason to why various measures have not been commenced or have been terminated seems, accordingly, have been that [the applicant] by evasion or negligence to act has let the matter come to nothing. On the other hand she has not actively terminated or refused various help efforts. It seems that neither has [the applicant] consciously acted in a way she would understand as being harmful to her daughter. Therefore it may reasonably be possible to conclude that [the applicant] now, having experience also from compulsory care, does not reject the demands caused by the needs of [T.]. The [court] therefore comes to the conclusion that an overall assessment indicates that the consent expressed by [the applicant], however at a late stage of the proceedings, should be accepted as adequate. Under these circumstances the [court] also finds that it is possible on a voluntary basis to provide [T.] with the necessary care outside her own home until it is possible to return [T.] to [the applicant]. This means that there are no longer grounds for compulsory care.”
On 2 June 1997 the applicant revoked the power of attorney for her father, who had until then been representing her in the matter of the public care of T.
On 21 July 1997 the applicant’s father requested the Social Welfare Committee to decide on a gradual termination of [T.’s] placement with the foster parents. On 27 August 1997 the Committee concluded that he was no longer representing his daughter and decided to respond to him accordingly.
On 3 January 1998 the applicant’s father requested the County Administrative Court to secure the implementation of the judgment of the Administrative Court of Appeal of 24 February 1997. On 7 January 1998 the court rejected the request, finding no legal basis therefor.
The applicant’s father appealed to the Administrative Court of Appeal. On 23 January 1998 the appellate court, noting the provisions of Chapter 21, Section 7 of the Parental Code, referred the case back to the inferior court since it had not examined the question whether the applicant’s father was still legally representing her.
It appears that T. is still living with foster parents.

B. Relevant domestic law
a. The 1990 Act
Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the situations referred to in Sections 2 or 3 of the Act is at hand and the necessary care presumably cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent. According to Section 2 of the Act care shall be provided if there is a palpable risk of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home.
Decisions on whether to place a young person under public care are made by the County Administrative Court following an application from the Social Welfare Committee.
The concept of health or development in the 1990 Act was taken directly from the previous legislation in this area as a description of a person’s physical or mental health or development. The concept refers to situations where the young person is risking his physical health or where mental suffering is inflicted because of the situation in the home.
According to the travaux préparatoires to the 1990 Act the expression palpable or apparent risk (påtaglig risk) was deemed well suited for indicating at what level a compulsory care order could be justified. A subjective assumption that a young person is in danger is not enough and irrelevant circumstances such as public order must not be the basis of a care order. There has to be concrete or apparent circumstances supporting the fact that there is a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107).
According to Section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if he probably needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. If such a decision by the Social Welfare Committee cannot be awaited, an order on taking into public care may be made by the Chairman of the Committee. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld awaiting the Court’s judgment regarding the application for public care.
According to Section 13 of the 1990 Act the Social Welfare Committee shall maintain close observation of the care provided for a young person by virtue of the Act. When a care order has been made according to the Act, the responsibility for the young person is taken over by the social authorities. It is the Social Welfare Committee that decides about the necessary care. If care has been provided under Section 2 of the Act, the Committee must ex officio review, at least once every sixth months, whether care under the Act is still necessary.
According to Section 24 of the 1990 Act the County Administrative Court may, on being petitioned by the Social Welfare Committee, prohibit, for a specified period or until further notice the removal of a minor from a foster home by the person having custody of him, if there is a palpable risk of the young person’s health or development being impaired if he is separated from the home (removal prohibition). The Committee shall, according to Section 26, review, at least once every three months, whether a removal prohibition is still necessary.
According to the 1990 Act the Social Welfare Committee may issue a temporary removal prohibition if i) it is probable that a removal prohibition is needed, and ii) a court decision concerning a removal prohibition cannot be awaited, in view of the risk of the young person’s health or development (Section 27). If the Committee has decided on a temporary removal prohibition, the decision shall be submitted to the County Administrative Court (Section 28). If the court confirms the decision, the Committee shall apply for a removal prohibition within two weeks of the court’s decision (Section 29). A temporary removal prohibition ceases to apply i) if a removal prohibition has not been applied for within two weeks of the court’s decision, or ii) when the court determines the question of a removal prohibition (Section 30). If necessary in view of the purpose of a removal prohibition or temporary removal prohibition, the Social Welfare Committee may decide how the right of access to the young person to which a parent or other custodians may be entitled is to be exercised (Section 31).
According to Section 41 of the 1990 Act appeals against decisions by the Social Welfare Committee may be lodged with the County Administrative Court if the Committee, inter alia, has made an order concerning access, pursuant to Section 31.
b. The Parental Code
Provisions concerning the enforcement of judgments and decisions concerning the custody of children are laid down in Chapter 21 of the Parental Code (föräldrabalken).
Section 7 of that Chapter of the Code reads:
(Translation)
“Even when no judgment or decision as described in Section 1 exists [i.e. judgments by ordinary courts concerning custody, access to, or surrender of children], the child’s guardian may, when the child is staying with someone else, request the County Administrative Court to have the child transferred to himself or herself.
The County Administrative Court may refuse to take the measure requested if the best interests of the child require that the question of custody be examined by a general court.
A measure according to the first paragraph may not be decided if, according to [the 1990 Act], the guardian of the minor has been prohibited from taking the minor from a foster home. ...”
c. The Administrative Court Procedure Act
According to Section 33, subsection 2 of the 1971 Administrative Court Procedure Act (förvaltningsprocesslagen) a decision made by a county administrative court or an administrative court of appeal may be appealed against by a person whom the decision concerns, provided that the decision affects him adversely.


ITEMID: 001-102912
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KADUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1967 and lives in the village of Solontsievka, Kharkiv Region, Ukraine.
5. On 15 March 1998 the applicant’s husband, who worked as an electrician at the construction site, died as a result of a work-related accident. On 10 September 1998 the applicant instituted proceedings in the Dzerzhynsky District Court of Kharkiv against a joint stock company “T.”(“the company”) claiming compensation for pecuniary and non-pecuniary damage sustained as a result of his death.
6. On 15 September 1998 the case was transferred to the Zhovtnevy District Court of Kharkiv, which on 24 January 2001 allowed in part the applicant’s claims.
7. On 24 April 2001 the Kharkiv Regional Court upheld this judgment. It became final.
8. On 21 June 2001 the amendments to the Code of Civil Procedure entered into force. They provided a right to lodge a cassation appeal within a three-month period with the Supreme Court against court decisions adopted before 21 June 2001 and which had entered into force before that date. On 19 July 2001 the company lodged an appeal in cassation.
9. On 28 February 2002 the Supreme Court quashed the decisions of the lower courts and remitted the case for a fresh consideration to the first instance court.
10. In the course of the proceedings before the first instance court three other companies and the local department of the State Insurance Fund for Work-Related Accidents and Diseases (“the Fund”) were joined as co-defendants.
11. On 10 March 2006 the Zhovtnevy District Court of Kharkiv found in part for the applicant. The court awarded her, inter alia, UAH 68,648.34 (about EUR 11,366) to be paid by the Fund.
12. The Fund appealed against that judgment; however, on 24 October 2006 the Kharkiv Regional Court of Appeal declined its appeal as lodged out of time. The Fund appealed in cassation. On 13 December 2007 the Lugansk Regional Court of Appeal, sitting as a court of cassation, quashed that decision and remitted the matter of the admissibility of the appeal for a fresh consideration.
13. On 5 November 2008 the Kharkiv Regional Court of Appeal partly allowed the appeal by the Fund and ruled that the above amount of UAH 68,648.34 should be paid by the company and not by the Fund. It upheld the remainder of the judgment.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87765
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CLAPHAM v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Harold Clapham, is a British national who was born in 1944 and lives in Warrington. He was represented before the Court by Mr Brian White, Warrington Community Law Centre. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 26 January 1996. On 12 March 2001, the applicant made a claim for widows’ benefits. On 17 April 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-86877
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF VLASOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 6-1;Violations of Art. 8;Violations of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1957 and lives in Moscow. He was the director of a diamond manufacturing and export company (“the company”).
7. On 9 July 1999 a criminal case (no. 144129) was opened against the applicant. He was suspected of having smuggled diamonds by using forged export contracts, an offence under Article 188 § 4 of the Criminal Code.
8. On 18 August 1999 the applicant was arrested. On 20 August 1999 a prosecutor remanded him in custody.
9. On 16 September 1999 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s request for release on bail. On 7 October 1999 the Moscow City Court upheld the refusal on appeal.
10. On 14 October 1999 a deputy Prosecutor General extended the applicant’s detention until 9 January 2000. On 16 December 1999 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order because, in the court’s view, the applicant’s “character” justified the detention. On 17 January 2000 the Moscow City Court upheld that decision on appeal.
11. On 30 December 1999 a deputy Prosecutor General extended the applicant’s detention until 18 May 2000. On 19 April 2000 the Preobrazhenskiy District Court dismissed the applicant’s appeal against the extension order, finding that the order had been “lawful and justified”, but without giving further grounds in support of this finding.
12. On 16 May 2000 a deputy Prosecutor General extended the applicant’s detention until 18 August 2000. On 4 August 2000 the Preobrazhenskiy District Court dismissed the applicant’s challenge to the extension order, finding that it had been lawful and justified. On 27 December 2000 the Moscow City Court upheld that decision on appeal.
13. On 16 August and 18 September 2000 the acting Deputy Prosecutor General extended the applicant’s detention until 18 September and 18 November 2000 respectively. On 26 September 2000 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension orders, finding that they had been justified on account of the applicant’s “character” and the absence of “gross violations” of the criminal-procedure laws. On 9 January 2001 the Moscow City Court upheld that decision on appeal, referring to the applicant’s “character” and the gravity of the charges against him.
14. On 17 November 2000 the Prosecutor General extended the applicant’s detention until 18 February 2001. On 31 January 2001 the Preobrazhenskiy District Court of Moscow dismissed the applicant’s challenge to the extension order, finding that the applicant’s “character” and the gravity of the charge rendered his detention lawful and justified. On 23 April 2001 the Moscow City Court upheld that decision on appeal.
15. On 9 December 2000 the applicant was additionally charged with offences under Articles 188 § 3 (smuggling), 191 § 2 (unlawful trade in precious stones), and 327 (forgery of official documents) of the Criminal Code.
16. On 28 December 2000 fifteen counts of smuggling, unlawful export of precious stones and forgery of documents were severed into a new criminal case, which was given the number 9307.
17. On 18 February 2001 the investigation into the remaining charges in the framework of case no. 144129 was stayed. On 26 February 2002 the investigation resumed and has since been pending.
18. On 12 January 2001 the applicant was given access to the case file. Further to the prosecution’s requests, on 16 February and 16 April 2001 the Moscow City Court extended the applicant’s detention until 18 April and 18 August 2001 respectively. On each occasion the court noted that there were no grounds to vary the preventive measure imposed on the applicant, in spite of the arguments advanced by the defence and the personal sureties offered on the applicant’s behalf by a Member of Parliament and a member of the Russian Academy of Sciences. It also referred to the gravity of the charges and to the applicant’s “character”. On 11 April and 23 May 2001 the Supreme Court upheld the City Court’s decisions on appeal, finding that there were “no sufficient grounds to vary the preventive measure”.
19. According to the Government, the applicant’s counsel, Mr Korolev and Mr Dudnik, were deliberately dilatory in dealing with the case-file materials. On 26 February 2001 the investigator asked the president of the Moscow bar to ensure counsel’s regular attendance. On 28 March and 25 April 2001 the investigator’s superior repeated that request. The Government produced four reports of 1, 8 and 18 June 2001. In these reports investigation officers described private conversations with the applicant’s representatives, who allegedly stated that they would procrastinate until the maximum period of the applicant’s detention had expired.
20. On 13 July 2001 case no. 9307 was submitted for trial before the Golovinskiy District Court of Moscow.
21. On 6 August 2001 the District Court remitted the case for further investigation. On 3 October 2001 that decision was set aside by the Moscow City Court, and the trial resumed.
22. On 11 December 2001 the District Court fixed a hearing for 25 December but then adjourned it to 28 January 2002 because the applicant’s counsel had gone on holiday.
23. On 28 January 2002 the District Court refused the applicant’s petition for release. On 21 February 2002 the Moscow City Court upheld that decision on appeal.
24. On 15 March 2002 the District Court extended the applicant’s detention until 29 April 2002, finding that his release would hinder “a thorough, comprehensive, and objective examination of the case”.
25. On 1 April 2002 the District Court remitted case no. 9307 for further investigation. It found that the charges were formulated vaguely, that the applicant had not been questioned as a suspect, that his access to the file had been unlawfully restricted, and that the severing of certain charges had not been justified. These defects were to be remedied by the investigation. The court authorised the applicant’s further detention.
26. On 12 July 2002 the Golovinskiy District Court released the applicant on bail.
27. The hearing fixed for 26 July 2002 had to be adjourned until 9 September 2002 because one lawyer was involved in concurrent proceedings and the other was on leave.
28. On 2 October 2002 the hearing was adjourned on account of the prosecutor’s illness. On 18 March and 13 May 2003 the hearings were postponed at the applicant’s request.
29. On 28 July 2003 the Golovinskiy District Court found the applicant guilty of smuggling and unlawfully trading in diamonds. The applicant was sentenced to five years and six months’ imprisonment, suspended for three years. On 29 November 2003 the Moscow City Court upheld that judgment on appeal.
30. On 24 December 1999 the investigator refused leave for a visit by the applicant’s mother and his wife. She stated that the investigator had discretion to authorise visits, but was not obliged to do so.
31. According to the Government, on unspecified dates in 1999 the applicant was allowed to see his wife on “humanitarian grounds”.
32. On 27 October 2000 the investigator refused counsel’s request of 28 September 2000 to allow the applicant to see his wife. The investigator indicated that the applicant’s wife was aware “of certain circumstances that [were] relevant to the matters under investigation” and also had “an interest in the outcome [of the case]”. As “family visits [could] be used to establish contact with other members of the organised criminal group or obstruct the establishment of the truth”, the wife’s visit would be “inopportune”.
33. On 4 January 2001 the investigator refused a visit by the applicant’s seven-year-old daughter, stating that the applicant could use the visit to obstruct the investigation.
34. On 17 January, 23 February, 12 and 13 March, 12 April, 14 May, 1 June and 2 July 2001 the investigator allowed the applicant to see his mother and/or daughter. According to the Government, in 2001 and 2002 the applicant was granted twenty-six family visits.
35. On 20 December 1999 the applicant sent a complaint about the refusal to allow family visits and interference with his correspondence to the Basmanniy District Court of Moscow. On the following day the head of the correspondence department of the remand centre refused to post the complaint, citing the following reasons:
“The court will not accept the complaint for examination in its present form. I also consider it necessary to explain that, under the Custody Act:
(a) the investigator may approve no more than two visits per month but by law he is not obliged to do so (section 18 § 3);
(b) pursuant to section 20 § 2, all correspondence is subject to censorship, including by the investigator who is in charge of the criminal case.
The complaint has no prospects of success (жалоба бесперспективна).”
36. On 22 December 1999 the applicant complained to the Ministry of Justice and the Prosecutor General’s Office that his complaint had not been posted. On 13 January 2000 the applicant’s complaint to the Ministry of Justice was returned to him. No reply from the Prosecutor General’s Office was received.
37. On 9 February 2000 the investigator refused to post the applicant’s letters to his wife and mother. She returned them to the director of the remand centre with the following note:
“I am returning you the letters by Mr Vlasov, the defendant in criminal case no. 144129, addressed to Mrs L. Vlasova and dated 11, 24 and 28 January 2000, and to Mrs I. Vlasova, of 11 and 25 January 2000.
On the basis of section 20 § 2 of the Custody Act these letters may not be sent to the addressees.”
38. The applicant submitted to the Court copies of handwritten letters to his mother, dated 11, 24 and 28 January 2000.
39. On 6 March 2000 the applicant issued forms of authority to his counsel, Mr Kuznetsov and Ms Vasilyeva. By a letter of 20 March 2000, the first deputy director of the Investigations Department of the Ministry of the Interior returned the forms to the director of the remand centre, advising him as follows:
“I would ask you to explain to Mr Vlasov, the defendant in criminal case no. 144129, that, pursuant to section 17 of the Custody Act and paragraph 12.11 of the Internal Rules for Remand Centres (approved by order no. 486 of 20 December 1995), detainees may enter into civil transactions on the basis of a form of authority certified by the head of the remand centre.
Since the forms of authority issued by Mr Vlasov to Mr V. Kuznetsov and Ms M. Vasilyeva list actions which, under the civil legislation currently in force, are not civil transactions, there are no grounds for forwarding these forms to Mr Kuznetsov or Ms Vasilyeva.”
40. On 30 August 2000 the applicant’s counsel submitted to the investigator a series of documents concerning the customs proceedings to which the applicant’s company was a party. On 28 September 2000 the investigator refused to transmit these to the applicant and appended them to the case-file, indicating that the applicant would be able to read them only after the investigation had been completed.
41. According to the Government, in 2001 the applicant sent no letters to his relatives. His letters to public authorities were not subject to censorship and were posted without delay. Incoming letters were handed over to him on the day of receipt.
42. On 29 May 2001 counsel for the applicant asked for permission to pass to his client (i) a copy of a complaint to the Supreme Court, and (ii) a book “International instruments on human rights”. The director of the remand centre made a handwritten note on the petition: “I agree to accept a copy of the complaint”.
43. On 28 March and 5 September 2000 the applicant complained to the Presnenskiy District Court of Moscow about the interception of the authority forms and commercial documents. By decisions of 7 April and 9 June 2001, the District Court disallowed the applicant’s complaints, finding that the law did not provide for judicial review of the investigator’s decisions concerning restrictions on family visits, correspondence or exchange of documents. On 3 October 2001 the Moscow City Court confirmed on appeal that the applicant’s complaints were not amenable to judicial review.
44. On 4 and 11 September 2000 the applicant complained to the Basmannyy District Court of Moscow about the restrictions on family visits and correspondence imposed by the investigator. On 10 July 2001 the Basmannyy District Court, by a non-procedural communication, informed him that these complaints could not be examined by a court.
45. The applicant complained to the Constitutional Court that he had not been able to obtain judicial review of restrictions on family visits, correspondence and exchange of documents.
46. By a decision of 21 December 2001 (no. 298-O), the Constitutional Court confirmed its constant case-law to the effect that all decisions by an investigator or prosecutor which affected an interested party’s constitutional rights and were not related to the merits of the criminal charge were amenable to judicial review (see paragraph 75 below). It emphasised that this approach was fully applicable to the investigator’s decision concerning restrictions on family visits, correspondence or exchange of documents. The Constitutional Court held that the judicial decisions refusing examination of the applicant’s complaints were to be reviewed in accordance with the established procedure.
47. On 8 July 2004 the Presnenskiy District Court of Moscow re-examined many of the complaints lodged by the applicant in course of the criminal proceedings in 2000 and 2003, including those concerning restrictions on correspondence, exchange of documents and family visits. The District Court dismissed those complaints for the following reasons.
48. The District Court found that the refusal to transmit customs documents from the lawyer to the applicant had been justified because the former had indicated that the documents were related to the criminal case. On that basis the documents had been included in the case file as evidence, in accordance with the Code of Criminal Procedure. The applicant had been advised that he would be able to study the documents in question when examining the case file following completion of the preliminary investigation.
49. With regard to the refusal to pass the power of attorney of 29 March 2000, the District Court held that the Internal Rules for Remand Centres (those issued both by the Ministry of the Interior and by the Ministry of Justice) prohibited detainees from authorising their representatives to carry out any actions other than civil transactions. As the scope of the applicant’s power of attorney had not been confined to civil transactions, the refusal had been lawful. The District Court did not refer to a specific provision of the Internal Rules for Remand Centres.
50. As to the restrictions on family visits, the District Court referred to the relevant provisions of the Custody Act and the Internal Rules for Remand Centres. It noted that the decision on whether or not to allow a family visit was to be taken by the investigator in the light of the The decisions made by the investigator in the applicant’s case had subsequently been reviewed and approved by the Investigations Committee of the Ministry of the Interior and by the Prosecutor General’s Office. Accordingly, the District Court concluded that the decisions had been lawful and justified.
51. Finally, the District Court found that five of the applicant’s letters to his relatives had been intercepted by the investigator because they either contained information on the criminal case, revealing secret information from the preliminary investigation, or expressed contempt for the law-enforcement authorities, which might foster a negative attitude among his relatives towards the law-enforcement bodies and thus obstruct the establishment of the truth in the criminal case. The District Court held that the interception of those letters had been compatible with the domestic law and with international treaties, including Article 8 of the Convention.
52. On 27 December 2004 the Moscow City Court endorsed, in a summary fashion, the findings of the District Court.
53. From 27 August 1999 until his release on 12 July 2002 the applicant was held in special-purpose remand centre no. IZ-99/1 (formerly no. IZ-48/4, commonly known as “Matrosskaya Tishina”).
54. The applicant was held in ten different cells that measured either fourteen sq. m and had six sleeping places, or thirty-two sq. m and contained ten bunks. The design capacity of the cells was not exceeded.
55. The window frames were bricked in with semi-transparent glass cubes. In addition, there was a layer of thick bars with so-called “eyelashes”, that is, slanted plates, approximately two cm apart, welded to a metal screen. This construction gave no access to natural air or light. The Government submitted that the “eyelashes” had been removed on 25 November 2002. The applicant indicated that between February 2000 and summer 2002 private fans had been prohibited in the cells, but that ventilation was on during the day.
56. The lavatory pan was placed in the corner of the cell. The Government produced a photo of the pan showing that it was separated from the living area by an eighty-five-centimetre-high tiled brick partition and shower curtains above it. The applicant responded that the partition and curtains had apparently been a recent development; during the period of his detention there had been no tiles and the hanging of curtains of any kind had been prohibited. Furthermore, until 22 August 2001 the walls had been covered with so-called shuba, a sort of abrasive concrete lining, designed to prevent detainees from leaning on the walls or writing on them.
57. Open-air exercise was permitted for one hour a day and a shower could be taken for twenty minutes once a week.
58. The cells were constantly lit with fluorescent lighting. The applicant claimed that insufficient lighting had impaired his eyesight, which had fallen by 2.5 dioptres. On 21 June 2001 he asked to see an ophthalmologist and repeated his request no fewer than seven times between 30 July 2001 and 20 June 2002. The Government explained that no consultation had been arranged because the medical unit of the remand centre had no resident ophthalmologist and because the applicant had often been absent for court hearings. The applicant responded that the hearings had not started until 28 January 2002, that is, more than seven months after he had asked for consultation.
59. Finally, the applicant submitted that he had been the only non-smoker in his cells and had suffered from passive smoking. The Government indicated that the separation of non-smokers from smokers had been materially impossible.
60. In support of his submissions the applicant produced affidavits by his former cellmates, Mr I., Mr Ku. and Mr Ko.
61. The applicant was transported from the remand centre to the courthouse and back more than 120 times. Transport was arranged by officers of the Convoy Regiment of the Moscow Police Department (конвойный полк ГУВД г. Москвы).
62. The prison vans (Gaz-3307 and Gaz-3309) in which the applicant was transported had a passenger cabin which was 3.8 m long, 2.35 m wide, and 1.6 m high. The cabin was divided into two multi-occupancy cubicles, designed for twelve inmates each, and one single-occupancy cubicle. The cubicles were equipped with benches. On 7 February 2001, in response to the applicant’s complaints, the officer-in-command of the Convoy Regiment ordered that he be transported in a separate van. The applicant specified that a separate van had been made available to him only thirteen times.
63. The Government submitted that the prison-van heaters and interior lights had been powered by the van engine. The vans were naturally ventilated through the emergency hatch and additional hatches with controlled airflow. The Government asserted that the applicant had received breakfast and dinner at the remand prison and that he had been allowed to bring his own food to court. It follows from the certificate issued by the head of remand centre no. IZ-99/1 that dry rations had been given to detainees from 2003 onwards.
64. In their post-admissibility submissions the Government enclosed two reports prepared by the officer-in-command of the Convoy Regiment on 28 March and 3 April 2006. According to these reports, the design capacity of prison vans had never been exceeded in 2001-2003 and the travel time from remand centre no. 99/1 to the Golovinskiy District Court had been in the range of two to three hours, depending on traffic.
65. The applicant denied that the van had been heated or sufficiently ventilated. He indicated that the travel time between the remand centre and the court had been excessively long, and sometimes as long as three or four hours. During the entire journey he had been kept in the locked van without food or drink or access to a toilet.
66. The applicant produced a detailed table which listed the time he had spent before departure in the “waiting cubicle” at the remand centre, the time on the way to the courthouse and the time on the way back. The table covered the period from 25 December 2001 to 22 March 2002, in which he had been transported on twenty days. Of those twenty times, on six occasions the aggregate travel time on a given day had ranged from five to seven hours and on a further eleven occasions it had been longer than seven hours, with a maximum of 10.5 hours on 25 December 2001. The table also indicated that on four days the design capacity of the prison van had been exceeded by at least ten additional persons.
67. Between 20 February 2001 and 17 June 2002 the applicant sent nine complaints about the “torturous” conditions of transport to many officials, including the director of the remand centre, the Prosecutor General and the officer-in-command of the Convoy Regiment. According to the Government, the officer-in-command of the Convoy Regiment had acknowledged that there had been “some irregularities” in the transport of detainees and ordered that the applicant be transported by a separate van. A copy of that report was not made available to the Court.
68. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). At the material time, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”).
69. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had allegedly committed.
70. After his or her arrest the suspect was placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction.
71. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that date a defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted, which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file.
72. The Custody Act (Federal Law on the Detention of Suspects and Defendants, no. 103-FZ of 15 July 1995) provides as follows:
“Suspects and defendants have the right:
...
(5) to meet with relatives and other persons listed in section 18;
(6) to keep documents and records relating to the criminal case or to exercise of their rights and lawful interests...
...
(8) to maintain correspondence and to use writing utensils;
...
(18) to enter into civil transactions.”
“Upon written consent of the official or authority in charge of the criminal case, a suspect or defendant may have up to two meetings per month with relatives and other persons, each visit to last for up to three hours...”
“Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams...
Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case.
Letters that contain information which may obstruct the establishment of the truth in a criminal case or facilitate the commission of a crime, are drafted with use of cryptography or cipher, or contain State or other secrets protected by law, may not be sent to the addressee or returned to the suspect or defendant. Instead, they are remitted to the official or authority in charge of the criminal case...”
73. The Internal Rules for Remand Centres of the Ministry of the Interior (order no. 486 of 20 December 1995, in force until 12 May 2000) provided as follows:
“8.1 Suspects and defendants may send and receive any number of letters or telegrams.
8.2 Letters and telegrams are sent and received through the administration of the remand centre. Correspondence by suspects and defendants is subject to censorship.
8.9 Letters and telegrams addressed to victims or witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the official or authority in charge of the criminal case.
12.11 A suspect or defendant may draft a power of attorney authorising another person to carry out a civil transaction. The power of attorney must be drafted in an established form and certified by the head of the remand centre in accordance with Article 185 § 3 of the Civil Code.
The administration of the remand centre must supply a blank power of attorney to a suspect or defendant, at his or her request and at his or her own expense, and, if necessary, explain the procedure for filling it out. The power of attorney is passed or sent to the person whose is named therein, through the official or authority in charge of the criminal case.
16.1 A suspect or defendant may be allowed a family visit on the basis of a written consent issued by the official or authority in charge of the criminal case. The consent is valid for one visit only.”
74. The Internal Rules for Remand Centres of the Ministry of Justice (order no. 148 of 12 May 2000) provided as follows:
“84. Letters... are received and dispatched through the administration of the remand centre. Correspondence of detainees is subject to censorship.
91. Letters and telegrams addressed to suspects and defendants who are at large, victims, witnesses, as well as those containing any information whatsoever in respect of the criminal case [in issue], insults, threats, calls to violence, commission of crimes or other offences, information on security measures in the remand centre, its employees, ways of transmission of prohibited items, and any other information that may impede the establishment of the truth in the criminal case or facilitate criminal activities... are not dispatched to the addressee... and [are] handed over to the authority in charge of the criminal case.
92. All correspondence by the detainees shall be recorded in a special register in which the dates of receipt and dispatch are noted...
122. By consent of the official or authority who is in charge of the criminal case, a suspect or defendant may issue a power of attorney to his or her representative for conducting a civil transaction. The power of attorney must be certified by the head of the remand centre, in accordance with Article 185 § 3 of the Civil Code.”
75. On 23 March 1999 the Constitutional Court issued Ruling no. 5-P on the constitutional compatibility of those provisions of the RSFSR Code of Criminal Procedure which restricted the possibility of lodging appeals against an investigator’s decisions to certain procedural actions. The Court considered that the constitutional right to judicial protection against actions or decisions impairing citizens’ rights and freedoms could not be restricted and that the interested party should therefore have the right to lodge a complaint with a court. It held that all decisions by the investigative authorities affecting constitutional rights and freedoms should be amenable to judicial review, provided that examination of their lawfulness and justification would not prejudge the merits of the criminal case.
VIOLATED_ARTICLES: 13
3
5
6
8
VIOLATED_PARAGRAPHS: 5-3
6-1