ITEMID: 001-58854
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF GRAUZINIS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a Lithuanian national, born in 1960. He lives in Klaipėda, Lithuania.
9. In May 1997, an owner of a café alleged that the applicant had beaten him and threatened to take over the control of his property.
10. The applicant was arrested on 19 May 1997. On 21 May 1997 he was brought before the Klaipėda City District Court which issued a detention order against him. The court reasoned that the applicant might commit further crimes while under this current suspicion.
11. On 22 May 1997 the applicant was indicted for attempting to obtain property by threats of force.
12. On 27 June 1997 the applicant appealed against the decision to remand him in custody, claiming inter alia that there was no reason for his detention and asking for bail.
13. On 3 July 1997 the Klaipėda Regional Court dismissed the appeal. The applicant was not present at the hearing, but his counsel was. The Regional Court noted that the applicant had been brought before the District Court which had issued the detention order, and that the first instance court could therefore assess the need for him to be held in custody inter alia on the basis of his personality and attitude. The appellate court concluded that the first instance court had properly specified the danger of the applicant committing further crimes as the reason for his remand in custody.
14. On 17 July 1997 the Klaipėda City District Court extended the term of the applicant’s detention, in his absence but with his counsel present. The court no longer held that the applicant might commit further crimes, but specified fresh grounds for the detention, namely that the applicant could abscond and influence witnesses.
15. On 5 September 1997 the applicant appealed, claiming inter alia that his detention on remand was unlawful under domestic law and the Convention. He alleged in particular that the decision was arbitrary, as the court had presented no facts in support of its conclusion that he might abscond or influence witnesses. He requested bail.
16. On 9 September 1997 a judge of the Klaipėda Regional Court returned the appeal without examination. The judge informed the applicant by letter that the Code of Criminal Procedure did not provide for an appeal against a decision extending the term of detention.
17. On 16 October 1997 a judge of the Klaipėda City District Court committed the applicant to trial in the absence of the parties. In his decision the judge also decided that the applicant should remain in custody. No grounds or term for that detention were specified. The judge did not mention the applicant’s complaints regarding the lawfulness of his detention.
18. The charges against the applicant were subsequently replaced as he was indicted for affray. On 24 February 1998 the Klaipėda District Court convicted him. He was sentenced to 1 year and 4 months’ imprisonment. He did not appeal against the first instance judgment.
19. The applicant has now been released from prison after having completed his sentence.
II. RELEVANT DOMESTIC LAW
<Translations are given>
20. Article 30 § 1 of the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija) provides:
“A person whose constitutional rights or freedoms are violated shall have the right to apply to court.”
21. Relevant provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas):
Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”
Article 104-1 (in force until 24 June 1998):
“... the arrested person shall be brought before a judge in not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and the counsel of the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure.
... after the case has been transmitted to the court ... [the court] can order, vary or revoke the detention on remand / arrest.”
Article 106 § 3 (in force until 24 June 1998):
“For the purpose of extending the term of detention on remand [at the stage of pre-trial investigation] a judge must convene a hearing to which defence counsel and a prosecutor and, if necessary, the detained person shall be called.”
Article 109-1 (in force until 24 June 1998):
“An arrested person or his counsel shall have the right during pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.
The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal.
A renewed appeal shall be determined when examining the extension of the term of the detention on remand.”
The present Article 109-1 (in force from 24 June 1998) provides that the detainee is able to appeal against decisions authorising detention both at the stage of pre-trial investigation and during the trial. With a view to examining the appeal, the court is now under the obligation to convene a hearing, to which the detainee and his defence counsel or only counsel must be called.
Article 249 § 1:
“A judge individually or a court in a directions hearing, in deciding whether to commit the accused to trial, shall determine ...
11) whether the remand measure has been selected appropriately.”
Article 250 § 1:
“After having decided, that there is a sufficient basis to commit the accused to trial, a judge individually or a court in a directions hearing shall determine the questions ...
2) of the remand measure in respect of the accused ... .”
Article 267 § 1:
“The defendant has the right to ...
3) submit requests; ...
11) appeal against the judgment and decisions of a court.”
Article 297:
“… upon adjourning the examination of a case … a court shall hear requests of the parties to the proceedings and shall adopt appropriate decisions thereon.”
Article 372 § 4 (in force until 1 January 1999, now repealed):

“Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ... .”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-72046
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SOINI AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Violation of Art. 10;No violation of Art. 6 or 13;Non-pecuniary damage - financial awards;Costs and expenses awards - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicants are Finnish citizens. Their dates of birth and places of residence are set out in the Annex.
7. On 25 November 1995 a group of young people organised a sit-in in the premises of a department store in Helsinki, Oy Stockmann Ab (presently Oyj Stockmann Abp; henceforth “Stockmann”), criticising it for selling fur coats and thereby participating in cruelty to animals. Around the same time various pamphlets and posters had appeared in Helsinki, criticising the fur trade in general and Stockmann in particular. The group had to be forcibly removed from the store.
8. In March 1996 Stockmann requested a pre-trial investigation into “the distribution to the public of printed matters purporting to be produced on the company’s behalf but which had not been commissioned by [it]”. Should the police find that a criminal offence had been committed, Stockmann requested that the matter be brought to the attention of the public prosecutor. The request was registered as a matter of suspected public defamation.
9. In the ensuing pre-trial investigation 36 persons, including the applicants, were heard as suspects in respect of the offence of public defamation.
10. On 11 April 1996 the police conducted a search at the home of Mr Miettinen, relying on chapter 4, section 1, and chapter 5, section 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987). According to the minutes, the search was carried out for the purpose of an investigation into malicious damage (vahingonteko, skadegörelse) of which his room mates – A.L. (not an applicant) and Ms Karjalainen – had been suspected. The police seized pamphlets critical of Stockmann’s sale of fur products as well as letters related to Mr Miettinen’s participation in an association of anti-fur activists.
11. On 13 June 1996 the police searched the homes of Ms Mikola and Ms Soini. According to the minutes, the searches were carried out “for other investigation purposes”. The police seized pamphlets and documents related to Ms Mikola’s participation in the same association of anti-fur activists. At the home of Ms Soini the police seized similar pamphlets, diaries from the years 1994-1995 and a telephone note book.
12. On 20 June 1996 the police returned to Ms Mikola some of the seized material, retaining eight pamphlets stating, inter alia: “Stockmann supports trading in carcasses” (Stocka [Stockmann] tukee raatokauppaa).
13. On 26 June 1996 the police returned two of Ms Soini’s diaries, keeping a third one until 9 September 1996.
14. On 18 October 1996 the District Court (käräjäoikeus, tingsrätten) of Helsinki maintained the seizures of Ms Mikola’s and Ms Soini’s materials until 31 December 1996. The seizures were later extended until 31 January 1997.
15. On 20 November 1996 the pre-trial investigation ended with a signed report. On 10 January 1997 applicants Sami and Sanna Seppilä, Soini, Uosukainen, Karjalainen, Särkisilta, Kaihovaara, Pelkonen, Riska, Karlstedt, Salonen, Miettinen and Mikola were charged with a violation of Stockmann’s domiciliary peace (kotirauhan rikkominen, hemfridsbrott) and a violation of the Police Act, both committed on 25 November 1995. All except applicants Sami Seppilä, Uosukainen, Karlstedt and Miettinen had been minors at the time of the offence.
16. At the same time, applicants Soini, Therman and Mustonen were charged with having defamed Stockmann in public while being minors. Applicants Uosukainen and Karjalainen were charged with the same offence but were no longer minors when committing the offence, namely between the summer of 1995 and the summer of 1996. In the alternative, all except Karjalainen were charged with common nuisance.
17. Mr Purmonen was charged with incitement to one or the other of those offences.
18. In addition, applicants Sami Seppilä, Soini, Särkisilta and Salonen were charged with some further offences.
19. On 2 April 1997 Ms Soini requested that the seizure of her possessions be lifted. The District Court having maintained the seizures, she appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki.
20. On 15 May 1997 the police lifted the seizure and returned the remaining material to Ms Soini and Ms Mikola. On 17 July 1997 the Court of Appeal found that since the police had already returned the material seized from Ms Soini it was not necessary to examine her appeal.
21. Meanwhile, on 18 June 1997 applicants Sanna Seppilä, Soini, Uosukainen, Särkisilta, Kaihovaara, Pelkonen, Riska, Karlstedt, Salonen, Miettinen and Mikola were convicted of violation of Stockmann’s domiciliary peace and sentenced to forty, fifty or sixty days’ conditional imprisonment respectively. Mr Sami Seppilä was likewise convicted – except on one count not relevant to this case – and given a longer conditional prison sentence coupled with a fine.
22. Applicants Purmonen, Therman and Mustonen were acquitted of all charges.
23. On 22 June 1999 the Court of Appeal reversed the District Court’s judgment by acquitting all twelve convicted applicants in so far as they had been found guilty of violating domiciliary peace. The court considered that Stockmann’s shop premises, being accessible to the public, could not be considered a domicile for the purposes of the relevant provision of the Penal Code. While upholding these applicants’ convictions of one or several other offences the court reduced their sentences to fines.
24. Article 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as amended by Act no. 969/1995 and in force at the relevant time, provided, in so far as relevant, as follows:
“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”
25. The same provision appears in the current Constitution of 2000 (731/1999, section 12).
26. According to chapter 27 of the Penal Code (rikoslaki, strafflagen), as in force at the relevant time, a person alleging, either contrary to his or her better knowledge or without better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation. If the defamation took place in public or, for example, by means of printed matter, the sentence could be increased. The injured party was required to report the offence before the public prosecutor might bring charges (sections 1-2 and 8).
27. The current chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1. Whereas only a natural person may be considered a victim of defamation, legal persons may be afforded indirect protection as in some cases defamation directed at a legal person may also be considered to concern individuals employed by that legal person (see Government Bill no. 184/1999, p. 34).
28. The 1919 Act on Freedom of the Press (painovapauslaki, tryckfrihetslagen 1/1919), as in force at the relevant time, confirmed the right to disseminate printed matters without prior censorship (section 1). “Printed matter” meant any writing which had been reproduced with a printing machine or by some other comparable means (section 2).
29. The Ministry of Justice was to monitor compliance with the Act and could order that charges be brought and that specific printed matter be seized (sections 40-42). In practice the Ministry was deemed competent to order that charges be brought only if they could be brought by the public prosecutor of his or her own motion, and not when the injured party was required to report the offence for the purpose of having charges brought (Report of the Committee considering new legislation on the freedom of the media, no. 1997:3, p.136). A public prosecutor or a police commander could, of his or her own motion, order the seizure of printed matter without a prior order by the Ministry of Justice. The Ministry had to be informed of such seizure within 24 hours.
30. If charges could not be brought on the prosecutor’s own initiative, the seizure could only be ordered on the request of the allegedly injured party. After charges had been brought the court examining the case had exclusive competence in respect of the seizures (section 42).
31. The Ministry of Justice was required, within a matter of days, to submit any seizure order for review by a court. The court had to either confirm or revoke the order within four days. If that time-limit was not respected the seizure expired. If charges were not brought within fourteen days from the court’s confirmation of the seizure, the court would pronounce the expiry of the seizure (sections 44-45).
32. The Freedom of the Press Act was repealed as from 1 January 2004 by the Act on the Exercise of Freedom of Expression in Mass Media (laki sananvapauden käyttämisestä joukkoviestimissä, lag om yttrandefrihet i masskommunikation 460/2003). It contains a single section (section 22) on the seizure of publications. The Government Proposal which gave the reasons for the Act stated, with regard to this section, that the existing provisions of the Freedom of the Press Act on seizures could be regarded as wholly unnecessary. The Coercive Measures Act passed in 1987 contained, according to the Proposal, all the necessary provisions concerning the authority to order seizures, the legal conditions, the procedure and the right to appeal for seizures. It was therefore sufficient that the new Act contained merely a reference to the Coercive Measures Act, in addition to clarifying, with regard to the proportionality rule in that Act, that the seizure of all publications meant for distribution in any given case could only be ordered if it could be assumed that the court would later order them to be confiscated. The new Act therefore served to clarify the relation between legislative provisions on publications and the Coercive Measures Act.
33. Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in a criminal investigation no one’s rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily.
34. Chapter 7, section 1 a, of the Coercive Measures Act provides that such measures may only be used where they can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation, the degree of interference with the rights of the suspect or other persons subject to the measures as well as in light of any other pertinent circumstances.
35. By chapter 5, section 1 of the Coercive Measures Act, a search of premises may be carried out if there is reason to suspect that an offence has been committed which carries a maximum punishment of imprisonment exceeding six months.
36. By Chapter 4, section 1 of the Coercive Measures Act, an object may be seized where there are reasons to presume that it may serve as evidence in criminal proceedings, has been removed from someone by means of an offence or is likely to be confiscated by a court order. According to section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure, the court may extend it at the request of a police officer competent to issue arrest warrants.
37. Section 43, subsection 2 of the Pre-Trial Investigation Act provides that when it has been decided that the case will not be submitted to the prosecutor, that decision shall without delay be notified to the persons who have been questioned as parties, unless this is deemed unnecessary.
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 6
8


ITEMID: 001-22658
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SPEIL v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Gertrude Speil, an Austrian national, was born in 1932 and lived in Frauendorf/Schmida. She was represented before the Court by Mr E. Proksch, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned a plot of land in Sitzendorf/Schmida, on which a building from the 17th century is situated. The applicant lived in this building and ran a wine production and a distillery there. In 1976 she obtained a permit under the Water Rights Act (Wasserrechtsgesetz) to construct a waste water disposal system on the property and to discharge waste water into a nearby stream.
On 29 April 1996 the Sitzendorf Municipality, without holding a hearing, ordered the applicant to connect her property to the newly constructed public sewerage system. It found that the conditions required by section 56 § 2 of the 1976 Lower Austria Building Act (niederösterreichische Bauordnung, “the Building Act”) were met, namely, that the connecting canal between the border of the property and the public canal would be no longer than fifty meters and that no pump appliance was necessary. It further noted that under section 17 of the 1977 Lower Austria Canal Act (niederösterreichisches Kanalgesetz) property owners had the obligation to obtain the necessary building permit for the part of the canal situated on their property which they had to construct at their own cost. They were further obliged to carry out any necessary changes to the sewerage system of any building situated on the property at their own expense.
The applicant, represented by counsel, appealed claiming that the municipality should have inspected her property and should have heard an expert on waste disposal. Further, she claimed that the obligation to connect her property to the public canal was at variance with the permit under the Water Rights Act. Finally, she alleged that the Water Rights Act would prohibit the discharge of waste water from her commercial enterprise to the public canal and that the costs of carrying out the necessary construction works, estimated at 1,5 million Austrian schillings, would be excessive.
On 27 June 1996 the Sitzendorf Municipal Council (Gemeinderat), sitting in camera, dismissed her appeal. It found that it followed from the existing files and maps that the requirements of section 56 § 2 of the Building Act were met and that the permit under the Water Rights Act was not relevant for establishing the obligation to connect a property to the public sewerage system. As to the applicant’s argument that she would have to bear excessive costs, it found that the above provision did not contain any general principle of proportionality.
On 22 November 1996 the Lower Austria Regional Government (niederösterreichische Landesregierung), sitting in camera, dismissed the applicant’s further appeal in which she had repeated her arguments. In particular, the Regional Government found that the permit under the Water Rights Act only gave the applicant a right to discharge waste water as long as this was not contrary to other legal obligations, such as the obligation to connect her property to the public canal. It further noted that the fulfilment of the legal requirements laid down in section 56 § 2 of the Building Act clearly followed from the existing files and maps, and found that the applicant had failed to show any need for the taking of further evidence.
In her complaint to the Constitutional Court (Verfassungsgerichtshof) the applicant again repeated her arguments and alleged in particular that the obligation to connect her property to the public canal violated her right to property. She maintained that the Water Rights Act would prohibit the discharge of waste waters from her wine production and distillery to the public canal. She would therefore have to separate these waste waters which would entail excessive costs. The necessary changes would endanger the 17th century building.
On 24 February 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof).
On 30 September 1997 the Administrative Court dismissed the applicant’s complaint, rejecting at the same time her request for a hearing. As to the applicant’s argument that the obligation to connect her property to the public canal was at variance with the permit under the Water Rights Act, the Administrative Court, referring to the Constitutional Court’s case-law, found that the discharge of waste water could be regulated under different aspects and that it was for the legislator to determine the cases in which a property owner was obliged to connect his property to the public canal. As to the applicant’s argument that the authorities failed to inspect her property and to hear an expert on waste disposal, the applicant had, in her appeal, failed to challenge the first instance authority’s finding of the facts according to which the conditions laid down in section 56 § 2 of the Building Act were met. Thus, the appellate authorities were not required to take further evidence. The Administrative Court held that it could abstain from an oral hearing pursuant to section 39 § 2 (6) of the Administrative Court Act since the proceedings have been carried out accurately and the facts were undisputed.
On 5 January 2001 the applicant died. On 30 November 2001 the applicant’s husband, who inherited the estate, informed the Court that he wished to pursue the application.


ITEMID: 001-76005
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: BULUT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Beko Bulut, is a Turkish national who was born in 1946 and lives in Tunceli. He is represented before the Court by Mr O. Kılıç, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until October 1994 the applicant lived in the Halitpınar village in the Ovacık district of the Tunceli province. In October 1994 the applicant’s village was forcibly evacuated by security forces on account of intense terrorist activities in the region. Subsequently, the applicant’s house was burned down along with the other houses in the village. He is still living in Elazığ with his family.
On 2 April 1998 the applicant filed a petition with the Office of the Ovacık Governor, requesting compensation for his losses and permission to return to his village.
On 25 May 1998 the Office of the Ovacık County Governor replied to the applicant’s petition, stating that the operations in the applicant’s village were still continuing and that he would be resettled when public order in the region was re-established. There was no explanation in the context of the reply as regards the applicant’s claim for compensation of his loss. The applicant did not challenge this reply.
The applicant was residing in Elazığ. According to his statement of 12 October 1994, given before the Public Prosecutor, he had only a summer house in Halitpınar village.
On 19 October 1994 the Public Prosecutor asked the District Gendarme Commander for information concerning the applicant’s allegations concerning the destruction and eviction of the Halitpınar village.
On 1 October 1994 the District Gendarme Commander informed the Public Prosecutor that according to the witnesses’ statements the houses in Halitpınar village were burned down by the terrorist, dressed as security forces.
On 9 December 1994 the Public Prosecutor gave a decision of nonjurisdiction and referred the file to the office of the Governor.
On 25 October 1995 the Ovacık Governor gave a decision of nonprosecution as the alleged offences were not attributable to the security officers.
On 2 April 1998 the applicant filed a petition with the Office of the Ovacık Governor, requesting compensation for his losses and permission to return to his village.
On 25 May 1998 the Office of the Ovacık County Governor replied to the applicant’s petition, stating that the operations in the applicant’s village were still continuing and that he would be resettled when public order in the region was re-established. There was no explanation in the context of the reply as regards the applicant’s claim for compensation of his loss. The applicant did not challenge this reply.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...).


ITEMID: 001-93053
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RESHETNIKOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Mikhail Vadimovich Reshetnikov, is a Russian national who was born in 1975 and lives in Chelyabinsk. He was represented before the Court by Mr M. Rachkovsky, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, Mr A. Savenkov, First Deputy Minister of Justice, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 2003 charges of rape were brought against the applicant, and he was detained pending the investigation.
On 4 July 2003 the Kalininskiy District Court of Chelyabinsk convicted the applicant of illegal deprivation of liberty, sexual abuse and attempted rape and sentenced him to eight years’ imprisonment.
The applicant appealed, alleging a violation of his right to defence.
On 27 November 2003 the Chelyabinsk Regional Court quashed the judgment on appeal, having considered that the applicant’s right to defence had been violated during the trial, and remitted the case for a retrial.
On 18 February 2004 the Presidium of the Chelyabinsk Regional Court quashed the decision of 27 November 2003 by way of supervisory review and remitted the judgment of 4 July 2003 for a new appeal hearing.
On 18 March 2004 the Chelyabinsk Regional Court reduced the applicant’s sentence to six years and six months’ imprisonment and upheld the rest of the judgment on appeal.
Following the applicant’s request, on 29 April 2005 the Supreme Court of Russia, having considered that the applicant’s right to defence had not been respected at the stage of the pre-trial investigation, quashed the judgment of 4 July 2003, as upheld on 18 March 2004, by way of supervisory review, and remitted the case for a retrial. The Supreme Court ordered that the applicant should be remanded in custody pending determination of the criminal charge against him. The decision was taken in the applicant’s absence.
Following the quashing of the applicant’s conviction by way of supervisory review the applicant sought to have criminal proceedings instituted against the judges who tried his case in 2003, without success.
The applicant also brought civil proceedings seeking to recover damages for his unlawful conviction of 4 July 2003, as upheld on appeal on 18 March 2004. On 13 June 2006 the Chelyabinsk Regional Court in the final instance dismissed his claims.
On 8 November 2005 the Kalininskiy District Court of Chelyabinsk again convicted the applicant.
On 21 July 2006 the Chelyabisnk Regional Court overturned the judgment of 8 November 2005 on appeal, because the trial court had not respected the applicant’s rights to defence, and remitted the case for a retrial.
On 7 February 2007 the Kalininskiy District Court convicted the applicant of sexual abuse and attempted rape and sentenced him to six years six months’ imprisonment.
On 7 May 2007 the Chelyabinsk Regional Court upheld the conviction on appeal.
Following the Supreme Court’s decision of 29 April 2005 to remand the applicant in custody, on 27 May 2005 the Kalininskiy District Court of Chelyabinsk scheduled a hearing on the applicant’s case and held that the applicant should remain in custody. The decision was given in the applicant’s absence, and the latter was informed about it only after it had become final. On 12 January 2006 the District Court granted the applicant’s request to restore the time-limit for appeal against the decision of 27 May 2005. However, on 10 October 2006 the Chelyabinsk Regional Court upheld the decision to keep the applicant in detention.
In the meantime, on 28 October 2005 the Kalininskiy District Court of Chelyabinsk extended the applicant’s detention until 29 November 2005. The applicant’s appeal against this decision was examined by the Regional Court on 10 October 2006.
On 8 November 2005 the Kalininskiy District Court of Chelyabinsk, having convicted the applicant, held that he should remain in custody.
On 21 July 2006 the Chelyabinsk Regional Court, having quashed the judgment of 8 November 2005, held that the preventive measure of detention imposed on the applicant should remain unchanged.
On 15 August 2006 the Kalininskiy District Court of Chelyabinsk scheduled a hearing on the applicant’s case and held that the applicant should remain in custody. On 31 August 2006 the Chelyabinsk Regional Court upheld the above decision on appeal.
On 2 October 2006 Kalininskiy District Court of Chelyabinsk ruled once again that the applicant should remain in custody. On 16 October 2006 the Chelyabinsk Regional Court upheld the above decision on appeal.
On 10 November 2006 the Kalininsky District Court held that the preventive measure imposed on the applicant should remain unchanged. On 8 December 2006 the Chelyabinsk Regional Court upheld the above decision on appeal. As indicated above the applicant was convicted by the District Court on 7 February 2007.


ITEMID: 001-67614
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF ÖNERYILDIZ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 9. The applicant was born in 1955 and is now living in the district of Şirvan (province of Siirt), the area where he was born. At the material time he was living with twelve close relatives in the slum quarter (gecekondu mahallesi) of Kazım Karabekir in Ümraniye, a district of Istanbul, where he had moved after resigning from his post as a village guard in south-eastern Turkey.
10. Since the early 1970s a household-refuse tip had been in operation in Hekimbaşı, a slum area adjoining Kazım Karabekir. On 22 January 1960 Istanbul City Council (“the city council”) had been granted use of the land, which belonged to the Forestry Commission (and therefore to the Treasury), for a term of ninety-nine years. Situated on a slope overlooking a valley, the site spread out over a surface area of approximately 35 hectares and from 1972 onwards was used as a rubbish tip by the districts of Beykoz, Üsküdar, Kadıköy and Ümraniye under the authority and responsibility of the city council and, ultimately, the ministerial authorities.
When the rubbish tip started being used, the area was uninhabited and the closest built-up area was approximately 3.5 km away. However, as the years passed, rudimentary dwellings were built without any authorisation in the area surrounding the rubbish tip, which eventually developed into the slums of Ümraniye.
According to an official map covering the areas of Hekimbaşı and Kazım Karabekir, produced by Ümraniye District Council’s Technical Services Department, the applicant’s house was built on the corner of Dereboyu Street and Gerze Street. That part of the settlement was adjacent to the municipal rubbish tip and since 1978 had been under the authority of a local mayor answerable to the district council.
The Ümraniye tip no longer exists. The local council had it covered with earth and installed air ducts. Furthermore, land-use plans are currently being prepared for the areas of Hekimbaşı and Kazım Karabekir. The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid.
11. Following the local elections of 26 March 1989, Ümraniye District Council sought to amend the urban development plan on a scale of 1:1,000. However, the decision-making authorities refused to adopt the plan as it covered an area that ran very close to the municipal rubbish tip.
From 4 December of that year Ümraniye District Council began dumping heaps of earth and refuse on to the land surrounding the Ümraniye slums in order to redevelop the site of the rubbish tip.
However, on 15 December 1989 M.C. and A.C., two inhabitants of the Hekimbaşı area, brought proceedings against the district council in the Fourth Division of the Üsküdar District Court to establish title to land. They complained of damage to their plantations and sought to have the work halted. In support of their application, M.C. and A.C. produced documents showing that they had been liable for council tax and property tax since 1977 under tax no. 168900. In 1983 the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the properties and land could be regularised (see paragraph 54 below). On 21 August 1989, at their request, the city council’s water and mains authority had ordered a water meter to be installed in their house. Furthermore, copies of electricity bills show that M.C. and A.C., as consumers, made regular payments for the power they had used on the basis of readings taken from a meter installed for that purpose.
12. In the District Court, the district council based its defence on the fact that the land claimed by M.C. and A.C. was situated on the waste-collection site; that residence there was contrary to health regulations; and that their application for regularisation of their title conferred no rights on them.
In a judgment delivered on 2 May 1991 (case no. 1989/1088), the District Court found for M.C. and A.C., holding that there had been interference with the exercise of their rights over the land in question.
However, the Court of Cassation set the judgment aside on 2 March 1992. On 22 October 1992 the District Court followed the Court of Cassation’s judgment and dismissed M.C.’s and A.C.’s claims.
13. On 9 April 1991 Ümraniye District Council applied to the Third Division of the Üsküdar District Court for experts to be appointed to determine whether the rubbish tip complied with the relevant regulations, in particular the Regulations on Solid-Waste Control of 14 March 1991. The district council also applied for an assessment of the damage it had sustained, as evidence in support of an action for damages it was preparing to bring against the city council and the councils of the three other districts that used the tip.
The application for an expert opinion was registered as case no. 1991/76, and on 24 April 1991 a committee of experts was set up for that purpose, comprising a professor of environmental engineering, a land registry official and a forensic medical expert.
According to the experts’ report, drawn up on 7 May 1991, the rubbish tip in question did not conform to the technical requirements set forth, inter alia, in regulations 24 to 27, 30 and 38 of the Regulations of 14 March 1991 and, accordingly, presented a number of dangers liable to give rise to a major health risk for the inhabitants of the valley, particularly those living in the slum areas: no walls or fencing separated the tip from the dwellings fifty metres away from the mountain of refuse, the tip was not equipped with collection, composting, recycling or combustion systems, and no drainage or drainage-water purification systems had been installed. The experts concluded that the Ümraniye tip “exposed humans, animals and the environment to all kinds of risks”. In that connection the report, drawing attention first to the fact that some twenty contagious diseases might spread, underlined the following:
“... In any waste-collection site gases such as methane, carbon dioxide and hydrogen sulphide form. These substances must be collected and ... burnt under supervision. However, the tip in question is not equipped with such a system. If methane is mixed with air in a particular proportion, it can explode. This installation contains no means of preventing an explosion of the methane produced as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. ...”
On 27 May 1991 the report was brought to the attention of the four councils in question, and on 7 June 1991 the governor was informed of it and asked to brief the Ministry of Health and the Prime Minister’s Environment Office (“the Environment Office”).
14. Kadıköy and Üsküdar District Councils and the city council applied on 3, 5 and 9 June 1991 respectively to have the expert report set aside. In their notice of application the councils’ lawyers simply stated that the report, which had been ordered and drawn up without their knowledge, contravened the Code of Civil Procedure. The three lawyers reserved the right to file supplementary pleadings in support of their objections once they had obtained all the necessary information and documents from their authorities.
As none of the parties filed supplementary pleadings to that end, the proceedings were discontinued.
15. However, the Environment Office, which had been advised of the report on 18 June 1991, made a recommendation (no. 09513) urging the Istanbul Governor’s Office, the city council and Ümraniye District Council to remedy the problems identified in the present case:
“... The report prepared by the committee of experts indicates that the waste-collection site in question breaches the Environment Act and the Regulations on Solid-Waste Control and consequently poses a health hazard to humans and animals. The measures provided for in regulations 24, 25, 26, 27, 30 and 38 of the Regulations on Solid-Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our office to be informed of the outcome.”
16. On 27 August 1992 Şinasi Öktem, the mayor of Ümraniye, applied to the First Division of the Üsküdar District Court for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste-collection site. He requested, in particular, that no further waste be dumped, that the tip be closed and that redress be provided in respect of the damage sustained by his district.
On 3 November 1992 Istanbul City Council’s representative opposed that request. Emphasising the city council’s efforts to maintain the roads leading to the rubbish tip and to combat the spread of diseases, stray dogs and the emission of odours, the representative submitted, in particular, that a plan to redevelop the site of the tip had been put out to tender. As regards the request for the temporary closure of the tip, the representative asserted that Ümraniye District Council was acting in bad faith in that, since it had been set up in 1987, it had done nothing to decontaminate the site.
Istanbul City Council had indeed issued a call for tenders for the development of new sites conforming to modern standards. The first planning contract was awarded to the American firm CVH2M Hill International Ltd, and on 21 December 1992 and 17 February 1993 new sites were designed for the European and Anatolian sides of Istanbul respectively. The project was due for completion in the course of 1993.
17. While those proceedings were still pending, Ümraniye District Council informed the mayor of Istanbul that from 15 May 1993 the dumping of waste would no longer be authorised.
18. On 28 April 1993 at about 11 a.m. a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and engulfed some ten slum dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died in the accident.
19. Immediately after the accident two members of the municipal police force sought to establish the facts. After taking evidence from the victims, including the applicant, who explained that he had built his house in 1988, they reported that thirteen huts had been destroyed.
On the same day the members of a crisis unit set up by the Istanbul Governor’s Office also went to the site and found that the landslide had indeed been caused by a methane explosion.
20. The next day, on 29 April 1993, the Ministry of the Interior (“the Ministry”) ordered the Administrative Investigation Department (“the investigation department”) to examine the circumstances in which the disaster had occurred in order to determine whether proceedings should be instituted against the two mayors, Mr Sözen and Mr Öktem.
21. While those administrative proceedings were under way, on 30 April 1993 the Üsküdar public prosecutor (“the public prosecutor”) went to the scene of the accident, accompanied by a committee of experts composed of three civil-engineering professors from three different universities. In the light of his preliminary observations, he instructed the committee to determine how liability for the accident should be apportioned among the public authorities and the victims.
22. On 6 May 1993 the applicant lodged a complaint at the local police station. He stated: “If it was the authorities who, through their negligence, caused my house to be buried and caused the death of my partners and children, I hereby lodge a criminal complaint against the authority or authorities concerned.” The applicant’s complaint was added to the investigation file (no. 1993/6102), which the public prosecutor had already opened of his own motion.
23. On 14 May 1993 the public prosecutor heard evidence from a number of witnesses and victims of the accident. On 18 May 1993 the committee of experts submitted the report ordered by the public prosecutor. In its report the committee noted, firstly, that there was no development plan on a scale of 1:5,000 for the region, that the urban development plan on a scale of 1:1,000 had not been approved and that most of the dwellings that had been engulfed had in fact been outside the area covered by the urban development plan, on the far edge of the site of the rubbish tip. The experts confirmed that the landslide – affecting land which had already been unstable – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the gas. Reiterating the public authorities’ obligations and duties under the relevant regulations, the experts concluded that liability for the accident should be apportioned as follows:
“(i) 2/8 to Istanbul City Council, for failing to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and have continued to increase since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law no. 3030;
(ii) 2/8 to Ümraniye District Council for implementing a development plan while omitting, contrary to Regulations on Solid-Waste Control (no. 20814), to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the area and taking no steps to prevent them from being built, despite the experts’ report of 7 May 1991;
(iii) 2/8 to the slum inhabitants for putting the members of their families in danger by settling near a mountain of waste;
(iv) 1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with the Regulations on Solid-Waste Control (no. 20814);
(v) 1/8 to the government for encouraging the spread of this type of settlement by declaring an amnesty in relation to illegal dwellings on a number of occasions and granting property titles to the occupants.”
24. On 21 May 1993 the public prosecutor made an order declining jurisdiction ratione personae in respect of the administrative authorities that had been held liable, namely Istanbul City Council, Ümraniye District Council, the Ministry of the Environment and the heads of government from the period between 1974 and 1993. He accordingly referred the case to the Istanbul governor, considering that it came under the Prosecution of Civil Servants Act, the application of which was a matter for the administrative council of the province of Istanbul (“the administrative council”). However, the public prosecutor stated in his order that the provisions applicable to the authorities in question were Article 230 and Article 455 § 2 of the Criminal Code, which respectively concerned the offences of negligence in the performance of public duties and negligent homicide.
In so far as the case concerned the possible liability of the slum inhabitants – including the applicant – who were not only victims but had also been accused under Article 455 § 2 of the Criminal Code, the public prosecutor expressed the opinion that, as the case stood, it was not possible to disjoin their complaints, having regard to sections 10 and 15 of the above-mentioned Act.
On 27 May 1993, when the investigation department had completed the preliminary inquiry, the public prosecutor’s file was transmitted to the Ministry.
25. On 27 May 1993, having regard to the conclusions of its own inquiry, the investigation department sought authorisation from the Ministry to open a criminal investigation in respect of the two mayors implicated in the case.
26. The day after that request was made Ümraniye District Council made the following announcement to the press:
“The sole waste-collection site on the Anatolian side stood in the middle of our district of Ümraniye like an object of silent horror. It has broken its silence and caused death. We knew it and were expecting it. As a district council, we had been hammering at all possible doors for four years to have this waste-collection site removed. We were met with indifference by Istanbul City Council. It abandoned the decontamination works ... after laying two spades of concrete at the inauguration. The ministries and the government were aware of the facts, but failed to take much notice. We had submitted the matter to the courts and they had found in our favour, but the judicial machinery could not be put into action. ... We must now face up to our responsibilities and will all be accountable for this to the inhabitants of Ümraniye ...”
27. The authorisation sought by the investigation department was granted on 17 June 1993 and a chief inspector from the Ministry (“the chief inspector”) was accordingly put in charge of the case.
In the light of the investigation file compiled in the case, the chief inspector took down statements from Mr Sözen and Mr Öktem. The latter stated, among other things, that in December 1989 his district council had begun decontamination works in the Hekimbaşı slum area, but that these had been suspended at the request of two inhabitants of the area (see paragraph 11 above).
28. The chief inspector finalised his report on 9 July 1993. It endorsed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor. It also mentioned two other scientific opinions sent to the Istanbul Governor’s Office in May 1993, one by the Ministry of the Environment and the other by a professor of civil engineering at Boğaziçi University. These two opinions confirmed that the fatal landslide had been caused by the methane explosion. The report also indicated that on 4 May 1993 the investigation department had requested the city council to inform it of the measures actually taken in the light of the expert report of 7 May 1991, and it reproduced Mr Sözen’s reply:
“Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until the end of 1993 and completed all the preparations for the construction of one of the biggest and most modern installations ... ever undertaken in our country. We are also installing a temporary waste-collection site satisfying the requisite conditions. Alongside that, renovation work is ongoing at former sites [at the end of their life span]. In short, over the past three years our city council has been studying the problem of waste very seriously ... [and] currently the work is continuing ...”
29. The chief inspector concluded, lastly, that the death of twenty-six people and the injuries to eleven others (figures available at the material time) on 28 April 1993 had been caused by the two mayors’ failure to take appropriate steps in the performance of their duties and that they should be held to account for their negligence under Article 230 of the Criminal Code. In spite of, inter alia, the expert report and the recommendation of the Environment Office, they had knowingly breached their respective duties: Mr Öktem because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip, as he was empowered to do under section 18 of Law no. 775, and Mr Sözen because he had refused to comply with the above-mentioned recommendation, had failed to renovate the rubbish tip or order its closure, and had not complied with any of the provisions of section 10 of Law no. 3030, which required him to order the destruction of the slum dwellings in question, if necessary by his own means. However, in his observations the chief inspector did not deal with the question whether Article 455 § 2 of the Criminal Code was applicable in the instant case.
30. In the meantime, the Department of Housing and Rudimentary Dwellings had asked the applicant to contact it, informing him that in an order (no. 1739) of 25 May 1993 the city council had allocated him a flat in a subsidised housing complex in Çobançeşme (Eyüp, Alibeyköy). On 18 June 1993 the applicant signed for possession of flat no. 7 in building C1 of that complex. That transaction was made official on 17 September 1993 in an order by the city council (no. 3927). On 13 November 1993 the applicant signed a notarially recorded declaration in lieu of a contract stating that the flat in question had been “sold” to him for 125,000,000 Turkish liras (TRL), a quarter of which was payable immediately and the remainder in monthly instalments of TRL 732,844.
It appears likely that the initial payment was made to the Istanbul Governor’s Office, which forwarded it to the city council. The applicant paid the first monthly instalment on 9 November 1993 and continued to make payments until January 1996. In the meantime, prior to 23 February 1995, he had let his flat to a certain H.Ö. for a monthly rent of TRL 2,000,000. It appears that from January 1996 the authorities had to avail themselves of enforcement proceedings in order to recover the outstanding instalments.
On 24 March 1998 the applicant, who by that time had discharged his debt to the city council, gave a notarially recorded undertaking to sell his flat to a certain E.B. in return for a down payment of 20,000 German marks.
31. In an order of 15 July 1993, the administrative council decided, by a majority, on the basis of the chief inspector’s report, to institute proceedings against Mr Sözen and Mr Öktem for breaching Article 230 of the Criminal Code.
Mr Sözen and Mr Öktem appealed against that decision to the Supreme Administrative Court, which dismissed their appeal on 18 January 1995. The case file was consequently sent back to the public prosecutor, who on 30 March 1995 committed both mayors for trial in the Fifth Division of the Istanbul Criminal Court.
32. The trial before the Division began on 29 May 1995. At the hearing Mr Sözen stated, among other things, that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since 1970. Nor could he be blamed for not having renovated the Ümraniye tip when none of the 2,000 sites in Turkey had been renovated; in that connection, relying on a number of measures which had nonetheless been taken by the city council, he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it. Lastly, he stated: “The elements of the offence of negligence in the performance of duties have not been made out because I did not act with the intention of showing myself to be negligent [sic] and because no causal link can be established [between the incident and any negligence on his part].”
Mr Öktem submitted that the groups of dwellings which had been engulfed dated back to before his election on 26 March 1989 and that since then he had never allowed slum areas to develop. Accusing the Istanbul City Council and Governor’s Office of indifference to the problems, Mr Öktem asserted that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that, in any event, his district council lacked the necessary staff to destroy such dwellings.
33. In a judgment of 4 April 1996, the Division found the two mayors guilty as charged, considering their defence to be unfounded.
The judges based their conclusion, in particular, on the evidence that had already been obtained during the extensive criminal inquiries carried out between 29 April 1993 to 9 July 1993 (see paragraphs 19 and 28 above). It also appears from the judgment of 30 November 1995 that, in determining the share of liability incurred by each of the authorities in question, the judges unhesitatingly endorsed the findings of the expert report drawn up on this precise issue at the public prosecutor’s request, which had been available since 18 May 1993 (see paragraph 23 above).
The judges also observed:
“... although they had been informed of the [experts’] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. ... They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that recklessness with their lives ...”
34. The Division sentenced Mr Sözen and Mr Öktem to the minimum term of imprisonment provided for in Article 230 of the Criminal Code, namely three months, and to fines of TRL 160,000. Under section 4(1) of Law no. 647, the Division commuted the prison sentences to fines, so the penalties ultimately imposed were fines of TRL 610,000. Satisfied that the defendants would not reoffend, the Division also decided to suspend enforcement of the penalties in accordance with section 6 of the same Law.
35. Both mayors appealed on points of law. They submitted, in particular, that the Division had gone beyond the scope of Article 230 of the Criminal Code in its assessment of the facts, and had treated the case as one of unintentional homicide within the meaning of Article 455 of the Code.
In a judgment of 10 November 1997, the Court of Cassation upheld the Division’s judgment.
36. The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts; nor does any court decision appear to have been served on him.
37. On 3 September 1993 the applicant applied to Ümraniye District Council, Istanbul City Council and the Ministries of the Interior and the Environment, seeking compensation for both pecuniary and non-pecuniary damage. The applicant’s claim was broken down as follows: TRL 150,000,000 in damages for the loss of his dwelling and household goods; TRL 2,550,000,000, TRL 10,000,000, TRL 15,000,000 and TRL 20,000,000 in compensation for the loss of financial support incurred by himself and his three surviving sons, Hüsamettin, Aydın and Halef; and TRL 900,000,000 for himself and TRL 300,000,000 for each of his three sons in respect of the non-pecuniary damage resulting from the deaths of their close relatives.
38. In letters of 16 September and 2 November 1993, the mayor of Ümraniye and the Minister for the Environment dismissed the applicant’s claims. The other authorities did not reply.
39. The applicant then sued the four authorities for damages in his own name and on behalf of his three surviving children in the Istanbul Administrative Court (“the court”). He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods, and again sought the aforementioned amounts.
On 4 January 1994 the applicant was granted legal aid.
40. The court gave judgment on 30 November 1995. Basing its decision on the experts’ report of 18 May 1993 (see paragraph 23 above), it found a direct causal link between the accident of 28 April 1993 and the contributory negligence of the four authorities concerned. Accordingly, it ordered them to pay the applicant and his children TRL 100,000,000 for non-pecuniary damage and TRL 10,000,000 for pecuniary damage (at the material time those amounts were equivalent to approximately 2,077 and 208 euros respectively).
The latter amount, determined on an equitable basis, was limited to the destruction of household goods, save the domestic electrical appliances, which the applicant was not supposed to own. On that point the court appears to have accepted the authorities’ argument that “these dwellings had neither water nor electricity”. The court dismissed the remainder of the claim, holding that the applicant could not maintain that he had been deprived of financial support since he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family’s living expenses. The court also held that the applicant was not entitled to claim compensation for the destruction of his slum dwelling given that, following the accident, he had been allocated a subsidised flat and that, although Ümraniye District Council had not exercised its power to destroy the dwelling, there had been nothing to prevent it from doing so at any time.
The court decided, lastly, not to apply default interest to the sum awarded for non-pecuniary damage.
41. The parties appealed against that judgment to the Supreme Administrative Court, which dismissed their appeal in a judgment of 21 April 1998.
An application by Istanbul City Council for rectification of the judgment was likewise unsuccessful, and the judgment accordingly became final and was served on the applicant on 10 August 1998.
42. The compensation awarded has still not been paid.
43. On 22 December 2000 Law no. 4616 came into force, providing for the suspension of the enforcement of judicial measures pending in respect of certain offences committed before 23 April 1999.
On 22 April 2003 the Ministry of Justice informed the Istanbul public prosecutor’s office that it had been impossible to conclude the criminal investigation pending in respect of the slum inhabitants, that the only decision concerning them had been the order of 21 May 1993 declining jurisdiction and that the charge against them would become time-barred on 28 April 2003.
Consequently, on 24 April 2003 the Istanbul public prosecutor decided to suspend the opening of criminal proceedings against the inhabitants, including the applicant, and four days later the criminal proceedings against them became time-barred.
44. The relevant provisions of the Criminal Code read as follows:
“Any agent of the State who, in the performance of his public duties, ... acts negligently and delays or, for no valid reason, refuses to comply with the lawful orders ... of his superiors shall be liable to a term of imprisonment of between three months and one year and to a fine of between 6,000 and 30,000 Turkish liras.
...
In every ... case, if third parties have suffered any damage on account of the negligence or delay by the civil servant in question, the latter shall also be required to compensate for such damage.”
“Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.
If the act has caused the death of more than one person or has resulted in the death of one person and injuries to one or more others ... the perpetrator shall be sentenced to a term of imprisonment of between four and ten years and to a heavy fine of a minimum of 60,000 Turkish liras.”
“The court shall have full discretion to determine the principal sentence, which can vary between a minimum and maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ..., the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even where the minimum penalty is imposed, the reasons for the choice of sentence must be mentioned in the judgment.”
“If the court considers that, other than the statutory mitigating circumstances, there are other circumstances favourable to reducing the penalty [imposed] on the perpetrator, capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of thirty years.
Other penalties shall be reduced by a maximum of one-sixth.”
45. Sections 4(1) and 6(1) of the Execution of Sentences Act (Law no. 647) read as follows:
“The court may, having regard to the defendant’s personality and situation and to the circumstances in which the offence was committed, commute short custodial sentences, but not long-term imprisonment:
1. to a heavy fine ... of between 5,000 and 10,000 Turkish liras per day;
...”
“Where a person who has never been sentenced ... to a penalty other than a fine is sentenced to ... a fine ... and/or [up to] one year’s imprisonment, execution of the sentence may be suspended if the court is satisfied that [the offender], having regard to his tendency to break the law, will not reoffend if his sentence is thus suspended ...”
46. Under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, if the suspected offender is a civil servant and the offence was committed in the performance of his duties, the investigation of the case is governed by the Prosecution of Civil Servants Act of 1914, which restricts the public prosecutor’s jurisdiction ratione personae with regard to that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
47. Turkish criminal law affords complainants the opportunity to intervene in criminal proceedings. Article 365 of the Code of Criminal Procedure contains a provision enabling complainants and anyone who considers that they have sustained injury as a result of a criminal offence to apply to join as an “intervening party” proceedings that have already been instituted by the public prosecutor and, consequently, to act alongside the prosecution. After consulting the public prosecutor, the court is required to rule on the admissibility of the application to join the proceedings as an intervening party (Article 366 of the Code of Criminal Procedure).
48. If the application is allowed, the intervening party may, among other things, claim compensation for damage resulting from the offence as a direct victim. That possibility, which is similar to those offered by “civilparty applications” or “civil actions” in the legislation of numerous Council of Europe member States, is nonetheless subject to certain precise rules. According to the Court of Cassation’s case-law, for a decision to be given on the compensation to be awarded as a result of an offence, the injured person must not only apply to join the proceedings as an intervening party but must also explicitly assert his or her right to compensation. Under Turkish law, such a claim is not deemed to be an integral part of an intervening-party application. The claim for compensation does not have to be made at the same time as the intervening-party application; it can be made at a later stage, provided that no action for damages has already been brought in the civil or administrative courts. Furthermore, all claims for compensation within the meaning of Article 358 (or Article 365 § 2) of the Code of Criminal Procedure must be specific and substantiated since, in assessing such claims, the criminal courts are required to apply the relevant civil-law rules, including the prohibition on awarding an amount higher than the claim. Conviction of the defendant is necessary for a decision to be given on the intervening party’s entitlement to compensation.
49. With regard to civil and administrative liability arising out of criminal offences, section 13 of the Administrative Procedure Act (Law no. 2577) provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. If this claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
The organisation of the administrative courts and the status of their judges are governed by the Administrative Courts (Powers and Composition) Act (Law no. 2576) of 6 January 1982 and the Supreme Administrative Court Act (Law no. 2575).
50. Under the Code of Obligations, anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53).
However, under section 13 of the Civil Servants Act (Law no. 657), anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may, in theory, only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where an act is found to be tortious or criminal and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
51. Article 138 § 4 of the 1982 Constitution provides:
“The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.”
Article 28 § 2 of the Code of Administrative Procedure provides:
“ Decisions determining administrative-law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.”
Under section 82(1) of the Enforcement and Bankruptcy Act (Law no. 2004), State property and property designated as unseizable in the legislation governing it cannot be seized. Section 19(7) of the Municipalities Act (Law no. 1580 of 3 April 1930) provides that municipal property can be seized only if it is not set aside for public use.
According to Turkish legal theory in this field, it follows from the above provisions that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation, the interested party can bring enforcement proceedings under the ordinary law. In that event the appropriate institution is empowered to impose on the authorities the measures provided for in Law no. 2004, although seizure remains exceptional.
52. The relevant provisions of the Constitution regarding the environment and housing read as follows:
“Everyone has the right to live in a healthy, balanced environment.
It shall be the duty of the State and the citizens to improve and preserve the environment and to prevent environmental pollution.
To ensure healthy living conditions for all in physical and psychological terms, ... the State shall establish health institutions and shall regulate the services they provide.
The State shall perform this task by utilising and supervising health and social-welfare institutions in both the public and private sectors. ...”
“The State shall take appropriate measures to satisfy housing needs by means of a plan that takes into account the characteristics of cities and environmental conditions; it shall also support community housing schemes.”
“The State shall perform the tasks assigned to it by the Constitution in the social and economic fields, within the limits of its financial resources and ensuring the maintenance of economic stability.”
53. The information and documents in the Court’s possession show that, since 1960, when inhabitants of underprivileged areas started migrating in their masses to the richer regions, Turkey has been confronted with the problem of slums, consisting in most cases of permanent structures to which further floors were soon added. It would appear that currently more than one-third of the population live in such dwellings. Researchers who have looked into the problem maintain that these built-up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police. They point to the existence of more than eighteen amnesty laws which have been passed over the years in order to regularise the slum areas and, they believe, satisfy potential voters living in these rudimentary dwellings.
54. The following are the main provisions in Turkish law regarding the prevention of slum development.
Section 15(2)(19) of the Municipalities Act (Law no. 1580 of 3 April 1930) requires local councils to prevent and prohibit any buildings or installations that breach the relevant legislation and regulations in that they have been erected without permission or constitute a threat to public health, order and tranquillity.
Section 18 of Law no. 775 of 20 July 1966 provides that, after the Law’s entry into force, any illegal building, whether it is in the process of being built or is already inhabited, must be immediately destroyed without any prior decision being necessary. Implementation of these measures is the responsibility of the administrative authorities, which may have recourse to the security forces and other means available to the State. With regard to dwellings built before the Law came into force, section 21 provides that, subject to certain conditions, slum inhabitants may purchase the land they occupy and take out low-interest loans in order to finance the construction of buildings which conform to the regulations and urban development plans. The built-up areas to which the provisions of section 21 apply are designated “slum rehabilitation and clearance zones” and are managed in accordance with a plan of action.
Under Law no. 1990 of 6 May 1976, amending Law no. 775, illegal constructions built before 1 November 1976 were also considered to be covered by the above-mentioned section 21. Law no. 2981 of 24 February 1984, on buildings not conforming to the legislation on slums and town planning, also provided for measures to be taken for the conservation, regularisation, rehabilitation and destruction of illegal buildings erected prior to that date.
As regards public property, section 18(2) of the Land Registry Act (Law no. 3402) of 21 June 1987 provides:
“Common property, ... woodland, premises at the State’s disposal that are set aside for public use, and immovable property reverting to the State in accordance with the legislation governing it, may not be acquired by adverse possession, regardless of whether such property is entered in the land register.”
55. However, Law no. 4706 of 29 June 2001 – which was designed to strengthen the Turkish economy – as amended by Law no. 4916 of 3 July 2003, allows immovable property belonging to the Treasury to be sold to third parties, subject to certain conditions. Section 4(6) and (7) of the Law provide that Treasury-owned land containing buildings erected before 31 December 2000 is to be transferred free of charge to the municipality in which it is situated, for sale on preferential terms to the owners of the buildings or to their heirs. Sales may be made on payment of an advance corresponding to a quarter of the market value of the land, and monthly instalments may be paid over three years.
Local authorities are required to draw up land-use plans and implementation plans concerning property transferred to them pursuant to the above-mentioned Law.
56. Section 15(2)(24) of the above-mentioned Law no. 1580 provides that district councils are responsible for collecting household waste at regular intervals by appropriate means and destroying it. By section 6-E, paragraph (j), of the City Councils Act (Law no. 3030) and regulation 22 of the Public Administration Regulations implementing the Act, city councils have a duty to designate sites for the storage of household and industrial waste and to install or have installed systems for treating, recycling and destroying the waste.
By regulations 5 and 22 of the Regulations on Solid-Waste Control, published in the Official Gazette of 14 March 1991, district councils are responsible for organising the use of rubbish tips and taking all necessary measures to ensure that their operation does not damage the environment and the health of human beings and animals. Regulation 31 empowers city councils to issue permits for the operation of waste-collection sites within the territory of the district councils under their authority.
The Regulations provide that no rubbish tips may be created within 1,000 metres of housing and that, once a site is in operation, no housing may be authorised around the edge of the site (regulation 24) and the site must be fenced off (regulation 25). As regards biogas control, regulation 27 provides:
“The mixtures of nitrogen, ammonia, hydrogen sulphide, carbon dioxide and, in particular, methane that result from the microbiological decomposition of the organic matter present in the mass of waste ... and may cause explosions and poisoning shall be collected by means of a vertical and horizontal drainage system and released into the atmosphere in a controlled manner or used to produce energy.”
57. The general information the Court has been able to procure as to the risk of a methane explosion at such sites may be summarised as follows. Methane (CH4) and carbon dioxide (CO2) are the two main products of methanogenesis, which is the final and longest stage of anaerobic fermentation (that is, a process taking place in the absence of air). These substances are generated, inter alia, by the biological and chemical decomposition of waste. The risks of explosion and fire are mainly due to the large proportion of methane in the biogas. The risk of an explosion occurs when the level of CH4 in the air is between 5% and 15%. If the level rises above 15%, methane will catch fire but will not explode.
58. It appears from various circulars and regulations in force in the Council of Europe’s member States regarding household-waste management and the operation of municipal rubbish tips that the main priorities of the authorities and operators concerned include: isolating waste-disposal sites by ensuring that they are not located within a minimum distance of any housing; preventing the risk of landslides by creating stable embankments and dykes and using compaction techniques; and eliminating the risk of fire or biogas explosions.
As regards the last-mentioned priority, the recommended method for decontaminating sites appears to entail setting up a drainage system for fermentation gases whereby gases are pumped out and treated using a biological filter as the site continues to operate. A gas-extraction system of this kind, provision for which is also made in the Regulations of 14 March 1991 in force in Turkey, generally consists of perforated vertical ducts drilled into the waste or horizontal drains buried in the mass of waste, a ventilation system, a biological filter and a network of suction pipes.
59. With regard to the various texts adopted by the Council of Europe in the field of the environment and the industrial activities of the public authorities, mention should be made, among the work of the Parliamentary Assembly, of Resolution 587 (1975) on problems connected with the disposal of urban and industrial waste, Resolution 1087 (1996) on the consequences of the Chernobyl disaster, and Recommendation 1225 (1993) on the management, treatment, recycling and marketing of waste, and, among the work of the Committee of Ministers, Recommendation no. R (96) 12 on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment.
Mention should also be made of the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS no. 150 – Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no. 172 – Strasbourg, 4 November 1998), which to date have been signed by nine and thirteen States respectively.
60. It can be seen from these documents that primary responsibility for the treatment of household waste rests with local authorities, which the governments are obliged to provide with financial and technical assistance. The operation by the public authorities of a site for the permanent deposit of waste is described as a “dangerous activity”, and “loss of life” resulting from the deposit of waste at such a site is considered to be “damage” incurring the liability of the public authorities (see, inter alia, the Lugano Convention, Article 2 §§ 1 (c)-(d) and 7 (a)-(b)).
61. In that connection, the Strasbourg Convention calls on the Parties to adopt such measures “as may be necessary to establish as criminal offences” acts involving the “disposal, treatment, storage ... of hazardous waste which causes or is likely to cause death or serious injury to any person ...”, and provides that such offences may also be committed “with negligence” (Articles 2 to 4). Although this instrument has not yet come into force, it is very much in keeping with the current trend towards harsher penalties for damage to the environment, an issue inextricably linked with the endangering of human life (see, for example, the Council of the European Union’s Framework Decision no. 2003/80 of 27 January 2003 and the European Commission’s proposal of 13 March 2001, amended on 30 September 2002, for a directive on the protection of the environment through criminal law).
Article 6 of the Strasbourg Convention also requires the adoption of such measures as may be necessary to make these offences punishable by criminal sanctions which take into account the serious nature of the offences; these must include imprisonment of the perpetrators.
62. Where such dangerous activities are concerned, public access to clear and full information is viewed as a basic human right; for example, the above-mentioned Resolution 1087 (1996) makes clear that this right must not be taken to be limited to the risks associated with the use of nuclear energy in the civil sector.
VIOLATED_ARTICLES: 13
2
P1
VIOLATED_PARAGRAPHS: 2-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-22208
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ROSENAUER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Herbert Rosenauer, is a Austrian national, who was born in 1958 and lives in Timelkam. He was represented before the Court by Mr R. Gabl, a lawyer practising in Linz.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 March 1992 the Wels Regional Court (Landesgericht) instituted preliminary investigations against the applicant on suspicion of having committed continuous aggravated fraud (gewerbsmäßiger schwerer Betrug) and illegal gambling (Glücksspiel). He was suspected of having invented, managed and promulgated an “investment-game” called “the Clou”, in which the players had to pay a certain sum to the applicant in order to obtain a place on the list of players. Subsequently, they had to entice other players to join the game, the promise being that each player’s profit would be higher the more players were enlisted thereafter. Furthermore, the applicant was suspected of having raised loans from a number of persons by promising high interest rates, while he only intended to spend the money on gambling.
On 22 April 1992 the applicant was questioned for the first time by the investigating judge as regards these charges.
In late 1992 an expert in information technology and an expert in mathematics and statistics were appointed. In March 1993 the latter was requested to supplement his opinion. In 1993 numerous witnesses were heard. In January 1994 an expert in bookkeeping and an expert in computer technology were appointed.
From 18 March 1994 to 30 December 1994 and from 4 January 1995 to 3 March 1995 the applicant was placed in detention on remand.
In May 1995 the Public Prosecutor’s Office requested all four experts to supplement their opinions.
On 4 October 1996 the preliminary investigations were concluded.
On 20 December 1996 the Public Prosecutor’s Office lodged the bill of indictment. It was served on the applicant’s counsel on 3 February 1997.
On 1 October 1998 the trial against the applicant started before the Wels Regional Court.
On 19 August 1999, after 101 days of court hearings, the Wels Regional Court convicted the applicant of aggravated fraud (gewerbsmäßiger schwerer Betrug), misappropriation (Veruntreuung) and negligent and fraudulent bankruptcy (fahrlässige und betrügerische Krida). He was sentenced to five years’ imprisonment, forty-five months of which were suspended on probation. When fixing the sentence, the court found mitigating circumstances for the applicant under section 34 § 2 of the Criminal Code (Strafgesetzbuch), namely that “the proceedings against the accused have lasted disproportionately long through no fault of the accused or his counsel”.
The judgment was served on the applicant’s counsel in March 2000. Neither the applicant nor the Public Prosecutor appealed.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows:
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision in not subject to appeal.”


ITEMID: 001-76455
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOZIK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Damage - finding of violation sufficient
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1959 and lives in Goleniów, Poland.
5. On 19 June 2000 the applicant was arrested on suspicion of killing D.L., his fiancée.
6. On 20 June 2000 the Świnoujście District Court (Sąd Rejonowy) ordered his detention. It considered that placing the applicant in custody was justified by the existence of strong evidence against him and the gravity of the charges. Since he had attempted to flee, his detention was necessary to ensure the proper course of the proceedings.
7. The applicant’s detention was subsequently prolonged several times by the Szczecin Regional Court (Sąd Okręgowy). Each time the court repeated the reasons it had previously given.
8. On 1 March 2001 the applicant lodged an application for release with the Świnoujście District Prosecutor (Prokurator Rejonowy). The prosecutor dismissed the application on 7 March 2001.
9. On 26 April 2001 the Świnoujście District Prosecutor lodged a bill of indictment with the Szczecin Regional Court. The applicant was charged with murder (he had strangled his fiancée) and fraud.
10. On 30 January 2002 the Szczecin Regional Court convicted him as charged and sentenced him to 15 years’ imprisonment.
11. The Poznań Court of Appeal quashed that judgment and remitted the case on 14 May 2002.
12. The applicant remained in custody.
13. On 13 June 2002 the Poznań Court of Appeal (Sąd Apelacyjny) ordered that the applicant remain in detention until 30 September 2002.
14. On 19 June 2002 the court refused his application for release.
15. Subsequently, the applicant’s detention was extended every 3 months by the Szczecin Regional Court, for the same reasons as before.
16. The applicant lodged numerous unsuccessful applications for release with the Regional Court.
17. On 7 October 2004 the Szczecin Regional Court convicted the applicant of murder and sentenced him to 25 years’ imprisonment. The court stressed the depraved nature of the crime and maintained that there were no mitigating circumstances in the case.
18. The Poznań Court of Appeal upheld the first-instance judgment on 29 December 2004.
19. On 20 October 2005 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal.
20. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition on leaving the country (zakaz opuszczania kraju).
21. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.”
22. Article 258 lists grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.”
23. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
24. Article 259, in its relevant part, reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue.
25. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided:
“1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months.
3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years.
4. The court of appeal within whose jurisdiction the offence in question has been committed may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3