ITEMID: 001-61805
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BATI AND OTHERS v. TURKEY [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies, six month period);Violation of Art. 3;Violation of Art. 13;Violation of Art. 5-3 with regard to the length of the custody;Violation of Art. 5-3 with regard to the length of pre-trial detention;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. Mr Ulaş Batı was born in 1979, Mr Bülent Gedik in 1974, Mr Müştak Erhan İl in 1971, Mr Özgür Öktem in 1976, Mr Sinan Kaya in 1978, Mr İsmail Altun in 1974, Mr İzzet Tokur in 1973, Mr Okan Kablan in 1980, Mr Cemal Bozkurt in 1973, Mrs Devrim Öktem in 1975, Miss Sevgi Kaya in 1980, Miss Arzu Kemanoğlu in 1972, Miss Zülcihan Şahin in 1977, Miss Ebru Karahancı in 1978 and Miss Zühal Sürücü in 1979. All are Turkish nationals and live in Istanbul.
10. In February and March 1996, as part of a police operation against an illegal Marxist organisation, the TKEP/L (Communist Labour Party of Turkey/Leninist), the Istanbul police arrested the applicants and held them for questioning at the headquarters of the anti-terrorist branch of the Istanbul security police (“Security Headquarters”) for questioning.
11. The facts in each individual case may be summarised as follows:
12. Mr Batı was arrested on 8 February 1996.
13. On 19 February 1996 he informed the public prosecutor during an interview that he had been ill-treated by the police while in custody. He was later brought before a judge of the Istanbul National Security Court (“the judge”), to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial.
14. Mr Batı says that his ill-treatment at Security Headquarters took various forms: he was beaten, forced to remain standing, deprived of sleep, and threatened with death, rape and sexual assault with a truncheon.
15. He was given only one medical examination. In his report of 19 February 1996, the forensic doctor, a member of the Istanbul Institute of Forensic Medicine, found partly healed bruising measuring 0.5 cm by 0.5 cm in the sternal region. He noted that Mr Batı had complained of pain in his shoulders and certified him unfit for work for one day.
16. Mr Gedik was arrested on 6 February 1996.
17. On 19 February 1996 he informed the public prosecutor during an interview that he had been coerced into making a statement which he had signed without reading. He subsequently repeated this account to the judge, who ordered his detention pending trial.
18. Mr Gedik says his ill-treatment in custody included suspension by the arms, death threats and electric shocks.
19. He was given three medical examinations:
(a) In a report of 19 February 1996, a forensic doctor noted scab-covered lesions measuring 3 cm by 3 cm to the rear of the thighs and an old bruise measuring 3 cm by 3 cm in the upper scapular region. He certified Mr Gedik unfit for work for three days.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found bruising with scabs to the left arm and a leg. He noted that Mr Gedik complained of pain in various parts of the body and referred him to a forensic doctor for a final report.
(c) Mr Gedik was re-examined by a forensic doctor on 7 March 1996. The doctor recorded his complaints of pain in the left shoulder in the medical certificate. However, he considered that a final report could only be drawn up once Mr Gedik had been examined by a hospital neurology service. It appears from the case file, however, that the additional examination was never carried out.
20. Mr Erhan İl was arrested on 6 February 1996.
21. On 19 February 1996 he was interviewed by the public prosecutor, before whom he denied all the offences he was alleged to have committed. Subsequently he was brought before the judge, to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.
22. Mr Erhan İl says that he was subjected to various forms of ill-treatment while in custody at Security Headquarters: suspension by the arms, blows, threats and insults.
23. He was given three medical examinations:
(a After examining Mr Erhan İl, a forensic doctor drew up a medical report in which he noted reduced extension and impaired supination and pronation in both arms. He said that a final report could be drawn up once Mr Erhan İl had been examined by a hospital neurology service.
(b) In his report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Erhan İl had complained of pain in his shoulders, thorax, back and respiratory tract, and numbness in both arms and hands. He referred him to a forensic doctor for a final report.
(c) On 6 March 1996, in the light of the medical certificate issued on 19 February 1996, the forensic doctor ordered Mr Erhan İl's transfer to hospital for neurological examination. It appears from the case file, however, that no such additional examination was ever carried out.
24. Mr Öktem was arrested on 8 February 1996.
25. On 19 February 1996, after being interviewed by the public prosecutor, he was brought before the judge to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.
26. Mr Öktem says that he was subjected to various forms of ill-treatment while in custody, including suspension by the arms and beating of the soles of the feet (falaka).
27. He was given three medical examinations:
(a) According to a medical certificate issued on 19 February 1996, the forensic doctor initially did not find any marks of violence on Mr Öktem's body. He noted that Mr Öktem had complained of pain in his thigh, labial mucosa and internal or lateral walls of his mouth. He certified him unfit for work for three days.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Öktem had a tear to the mouth that had been caused by the use of force, pain in various parts of the body and difficulty breathing. He referred him to a forensic doctor for a final report.
(c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the reports of 19 and 27 February 1996.
28. Mr Kaya was arrested on 8 February 1996.
29. On 19 February 1996 he was brought before the judge after being interviewed by the public prosecutor. He complained to the judge of ill-treatment by police officers while in custody. The judge ordered his detention pending trial.
30. Mr Kaya says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows, threats and insults.
31. He was given three medical examinations:
(a) The first was performed by a forensic doctor on 19 February 1996, who found that Mr Kaya presented scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm to the side of the right armpit, bruising measuring 2 cm by 2 cm to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found loss of movement in the arms, cramps in the shoulders, breathing difficulties and cuts and bruising to the right foot. He referred him to a forensic doctor for a final report.
(c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm on the side of the right armpit, bruising and grazing to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days.
32. Miss Kaya (who is Sinan Kaya's sister) was arrested on 8 February 1996.
33. On 19 February 1996 she was brought before the judge after being interviewed by the public prosecutor and complained of ill-treatment by police officers while in custody. The judge ordered her detention pending trial.
34. Miss Kaya says that while in custody she was subjected to falaka, sprayed with water, threatened with rape and undressed.
35. She was given three medical examinations:
(a) In a report dated 19 February 1996, a forensic doctor found old bruising to the soles of the feet measuring 5 cm by 4 cm that was in the process of healing, bruising to both palms and pain in the shoulders and arms. He certified her unfit for work for seven days.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted bruising, swelling and tenderness to the sole of the left foot, and loss of movement and deformity to the little finger of the right hand. He referred her to a forensic doctor for a final report.
(c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 5 cm by 4 cm to the soles of both feet, bruising to both palms and pain in the shoulders and arms. He certified Miss Kaya unfit for work for seven days.
36. Mr Altun was arrested on 8 February 1996.
37. He was interviewed by the public prosecutor on 16 February 1996 and complained of ill-treatment by police officers while in custody. He was subsequently brought before the judge, to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial.
38. Mr Altun says that he was subjected to various forms of ill-treatment: he was suspended by his arms (which were tied together), beaten, sprayed with cold water and deprived of sleep. He further complains that he was blindfolded and his testicles were wrung.
39. He was given three medical examinations:
(a) In a report of 16 February 1996, a forensic doctor noted that Mr Altun was suffering from headaches and pain in his arms.
(b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted bruising below the eyes, scab-covered lesions measuring 0.5 cm by 0.5 cm on the upper right ear, pain running from the neck to the anus, restricted movement of the thumb of the right hand, scab-covered lesions on the back of the left foot, grazing on the back of the right foot, bruising measuring 5 cm by 2 cm to the anterior left leg (tibia) and pain in the chest and respiratory tract.
(c) In a report of 6 March 1996, the forensic doctor confirmed the findings set out in the report of 16 February 1996.
40. Mrs Öktem (who is Bülent Gedik's wife) was arrested on 6 February 1996.
41. On 19 February 1996, after being interviewed by the public prosecutor, she was brought before the judge, who ordered her detention pending trial.
42. Mrs Öktem says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, undressed and sprayed with water. She also alleges that she suffered a miscarriage as a result of the ill-treatment.
43. She was given seven medical examinations:
(a) In a report of 19 February 1996, a forensic doctor said that he had found no marks on Mrs Öktem's body that were consistent with assault. Noting that she alleged that she had miscarried as a result of ill-treatment in police custody, he said that a final report could be drawn up once she had been examined by a hospital obstetrics service.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise measuring 1 cm by 1 cm on Mrs Öktem's left leg, and pain in the soles of her feet and kidneys. He referred her to a forensic doctor for a final report.
(c) In a report of 6 March 1996, in the light of the information contained in the aforementioned medical certificates, the forensic doctor ordered her transfer to a hospital obstetrics service.
(d) In a report of 6 March 1996, a gynaecologist from the Haseki General Hospital noted bleeding and particles in the region of the uterus and diagnosed post-abortive endometritis.
(e) In a report of 18 April 1996, the Bayrampaşa Prison doctor noted a 0.5 cm by 1 cm swelling to the occipital region and pain in the back. He referred her to a forensic doctor for a final report.
(f) On 31 May 1996 a gynaecologist from the Istanbul General Hospital informed the Istanbul Assize Court that the hospital register showed that Mrs Öktem had been examined on 20 February 1996 and that no genital pathology in the region of the uterus had been found. However, in view of her allegation that she had suffered a miscarriage, she had been given appropriate treatment.
(g) Mrs Öktem's medical file was examined by a team of seven gynaecologists, who, in a report of 19 February 1997, concluded that she had suffered a miscarriage while in police custody. However, since there were no marks on her body consistent with assault and she had not had a full medical examination, they said that it was impossible to confirm a causal link between the miscarriage and the alleged ill-treatment.
44. Miss Kemanoğlu was arrested on 6 February 1996.
45. On 19 February 1996 she was interviewed by the public prosecutor. She complained of ill-treatment by police officers while in custody and denied all the offences she was alleged to have committed. She was subsequently brought before the judge, who ordered her detention pending trial.
46. Miss Kemanoğlu was given three medical examinations:
(a) On 19 February 1996 a forensic doctor noted that there were no marks on her body consistent with assault.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a 3 cm by 3 cm bruise on her leg, and bruising to the neck, shoulders and rib cage. He referred her to a forensic doctor for a final report.
(c) On 6 March 1996, in the light of the aforementioned medical reports, the forensic doctor made an order for her to be examined by the Institute of Forensic Medicine Special Office. However, the file shows that that examination did not take place.
47. Miss Şahin was arrested on 7 February 1996.
48. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial.
49. Miss Şahin was given three medical examinations:
(a) In a report of 19 February 1996, a forensic doctor noted two old bruises measuring 0.5 cm by 1 cm and 0.5 cm by 2 cm on the anterior left arm and an old bruise measuring 1 cm by 1.5 cm on the same arm. He did not certify her unfit for work.
(b) In a report of 22 February 1996, the Bayrampaşa Prison doctor noted a 2 cm by 2 cm bruise on the neck and cuts to the shoulders.
(c) In a report of 7 March 1996, the forensic doctor confirmed the findings in the report of 22 February 1996 and certified Miss Şahin unfit for work for three days.
50. Miss Karahancı was arrested on 8 February 1996.
51. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial.
52. Miss Karahancı says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, sprayed with water and deprived of sleep for three days.
53. She was given three medical examinations:
(a) In a report of 19 February 1996, a forensic doctor noted that she complained of pain in the back and arms. He found a 2 cm by 3 cm bruise in the middle of the outer left leg, and an old bruise measuring 0.5 cm by 0.5 cm on the lower leg. He certified her unfit for work for five days.
(b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise on the left ankle and pain in different parts of the body. He considered an examination by a forensic doctor necessary.
(c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the report of 19 February 1996.
54. Mr Tokur was arrested on 8 February 1996.
55. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial.
56. Mr Tokur says that while in police custody he was beaten approximately twenty to twenty-five times, threatened with death, sprayed with water and deprived of sleep for four days.
57. On 19 February 1996 a forensic doctor found no visible marks on Mr Tokur's body on examination that were consistent with assault. He noted, however, that Mr Tokur complained of pain in his shoulders and certified him unfit for work for one day.
58. Mr Kablan was arrested on 6 February 1996.
59. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial.
60. Mr Kablan says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows and sleep deprivation.
61. He was examined three times:
(a) In a report of 19 February 1996, a forensic doctor noted old bruises measuring 2 cm by 3 cm on his right leg. He certified Mr Kablan unfit for work for one day.
(b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted a bruise on the right leg, bruising to the axillary region, reduced movement in both arms and pain in various parts of the body. He referred Mr Kablan to a forensic doctor for a final report.
(c) In a report of 7 May 1996, the forensic doctor noted that Mr Kablan was suffering from a problem with his ears entailing unfitness for work for fifteen days.
62. Miss Sürücü was arrested on 14 March 1996.
63. She was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. She was then brought before the judge, who ordered her detention pending trial.
64. Mr Bozkurt was arrested on 14 March 1996.
65. He was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. He was then brought before the judge, who ordered his detention pending trial.
66. On 10 April 1996 the public prosecutor instituted criminal proceedings against twenty people, including the applicants, under both Article 146 of the Criminal Code, which makes it an offence to attempt to change or modify the Constitution of the Republic of Turkey in whole or in part, to attempt a coup d'état against the National Assembly or to use force to prevent the National Assembly from carrying out its functions, and Article 168 § 2 of the Criminal Code, which makes it an offence to be a member of an armed group. The applicants were accused of various acts of violence, including voluntary homicide, attempted homicide, throwing explosive devices, taking part in an illegal and violent demonstration and armed robbery.
...
72. The case is still pending in the domestic courts.
73. On 5 March 1996 ten of the applicants, Bülent Gedik, Zülcihan Şahin, Sinan Kaya, Sevgi Kaya, Devrim Öktem, Okan Kablan, Arzu Kemanoğlu, Müştak Erhan İl, İzzet Tokur and Ulaş Batı, lodged a complaint of ill-treatment against the police officers who had been on duty while they were in custody.
74. They also lodged a complaint against O.T. (the Istanbul police commissioner) and R.A. (the deputy director of the Istanbul anti-terrorist branch). They argued that these two senior police officers were the hierarchical superiors of the police officers who had subjected them to torture. This complaint was dismissed on 24 February 1998 for lack of sufficient evidence. That decision was upheld by the President of the Beyoğlu Assize Court on 23 September 1998.
75. On 12 April 1996 the public prosecutor questioned four police officers (Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) in connection with the complaint that had been lodged on 5 March 1996. All four officers had been on duty while the applicants were in custody. They denied having ill-treated the applicants concerned.
76. Meanwhile, on a date that has not been specified by the parties, a complaint was lodged by Ebru Karahancı, Özgür Öktem and ĺsmail Altun. They alleged, inter alia, that six police officers (Mustafa Sara, Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) had ill-treated them while they were in custody. On 21 February 1997 the Istanbul public prosecutor's office decided not to take any action on the complaint. However, the applicants say that on 5 December 1997 the President of the Beyoğlu Assize Court set aside that decision following an appeal by the applicants' representative.
77. By an indictment that was lodged on 4 March 1997, the public prosecutor instituted criminal proceedings in the Istanbul Assize Court against five police officers (Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan) for an offence under Article 243 of the Criminal Code (see paragraph 96 below).
78. The first hearing in the case took place on 26 May 1997 in the Istanbul Assize Court, in the absence of the five police officers. The Assize Court heard the applicants, who complained in particular of the decision not to prosecute Mustafa Sara. In addition, Mrs Öktem testified that she had suffered a miscarriage after being assaulted and subjected to repeated blows to the abdomen while in custody. With the exception of İzzet Tokur, Ebru Karahancı, Özgür Öktem and ĺsmail Altun, the applicants applied to be joined to the criminal proceedings as civil parties under Article 365 of the Code of Criminal Procedure (see paragraph 98 below). That application was granted.
79. On 7 July 1997 a brawl broke out between the applicants and members of the security forces as nine of the applicants (Zülcihan Şahin, Sinan Kaya, İsmail Altun, Müştak Erhan İl, Arzu Kemanoğlu, Okan Kablan, Devrim Öktem, Özgür Öktem and Bülent Gedik) were being taken to the hearing room in the Istanbul court-house. The Istanbul Assize Court proceeded with the hearing, which it began by hearing evidence from the four defendant police officers who were present, namely Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan.
80. At the hearing the applicants formally identified those police officers. The Assize Court decided that it was unnecessary to remand the accused in custody and adjourned the question of whether Mustafa Sara should be prosecuted to a later date.
81. At a hearing on 20 October 1997, Mr Öktem (the father of Mrs Öktem and Mr Öktem) and Miss Karahancı gave evidence. The latter said that she was unable to identify anyone, as she had been kept blindfolded throughout her time in police custody.
82. The testimony of one of the accused, Ahmet Bereket, was obtained on commission and placed in the case file of the Assize Court on 29 July 1997.
83. At a hearing on 25 December 1997, the Assize Court sought to establish the addresses of two of the victims, A. Kılıç and Ay. Kılıç, so that their testimony, which was not on the case file, could be obtained.
84. At a hearing on 11 March 1998, Mr A. Tunga gave evidence.
85. On 7 January 1998 a supplementary indictment was lodged by the public prosecutor, accusing police officer Mustafa Sara of ill-treatment with a view to extracting confessions.
86. On 14 April 1998 evidence was taken from Mustafa Sara on commission and placed in the case file.
87. Between 21 May 1998 and 25 December 2002 the Assize Court held approximately thirty hearings, at which it sought, inter alia, to establish the addresses of a witness and of a victim with a view to serving them with witness summonses. Although the applicants' representatives urged the Assize Court on 24 June 1999, 20 November 2001 and 23 December 2001 to dispense with the evidence of the two people concerned, it did not accede to their request until 13 February 2002.
88. At a hearing on 17 July 2002, the representative acting for Mustafa Taner Paylaşan, Fatih Berkup and Yakup Doğan informed the Assize Court that he was withdrawing from the case. The court was also informed that Mehmet A. Çavdar had died.
89. On 1 October 2002 the applicants' representatives asked the Assize Court to expedite the proceedings, as there was a danger that the prosecution of the offences would become statute-barred.
90. At a hearing on 20 November 2002, Yakup Doğan sought an adjournment to enable him to obtain legal representation. Mustafa Sara lodged a medical certificate excusing his absence. The Assize Court granted the defendants an extension of time. From the case file it would seem that Mustafa Sara never in fact appeared before the Assize Court.
91. At a hearing on 25 December 2002, the public prosecutor made his submissions. He sought an order dismissing the criminal proceedings against Mehmet A. Çavdar, who had died, and against Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan under the statute of limitations. As regards Mustafa Sara, he sought a conviction only on the count of torturing Bülent Gedik. He submitted that Mustafa Sara should be acquitted on the other charges.
92. In a judgment of 5 February 2003, the Assize Court decided to discontinue the proceedings against the defendants Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan by virtue of the statute of limitations and against Mehmet A. Çavdar on the ground of intervening death. It found Mustafa Sara guilty of torturing Mr Gedik and Mrs Öktem and sentenced him to two years' imprisonment. It also made an order prohibiting him from holding public office for a period of six months. However, it acquitted him on the other charges.
...
94. The case is currently pending before the Court of Cassation.
95. At the material time section 16 of Law no. 2845 on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days, not including the time needed to convey the detainee to the judge.
96. Under the Turkish Criminal Code, it is an offence for a public official to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities and the security forces as well as to the public prosecutor's office. Complaints may be made orally or in writing. If a complaint is made orally, the authority must keep a record (Article 151).
By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duties is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
97. Under Article 102 of the Criminal Code, taken in conjunction with Articles 243 and 245, a prosecution for an offence of ill-treatment or torture by a public official must be brought within five years.
98. Article 365 of the Code of Criminal Procedure also contains a provision allowing victims of crime to join the proceedings as “intervening parties” alongside the prosecution. As a direct victim, an intervening party may also claim reparation for any loss sustained as a result of the offence provided that he or she has not previously brought an action in the civil courts. The admissibility of applications to join the proceedings as an intervening party is determined by the judge, after hearing representations from the public prosecutor's office (Article 366 of the Code of Criminal Procedure). A person who has been given leave to intervene in proceedings may, like the public prosecutor, appeal to the Court of Cassation against the verdict (Article 371 of the Code Criminal Procedure).
99. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the course of an official's duties under public law may, in principle, only bring an action against the authority for whom the official concerned works and not directly against the official (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). This is not an absolute rule, however. When an act is found to be illegal or tortious 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).
100. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999. The “Istanbul Principles” subsequently received the support of the United Nations through resolutions of the United Nations Commission on Human Rights and the General Assembly. It is the first set of guidelines to have been produced for the investigation of torture. The Protocol contains full practical instructions for assessing persons who claim to have been the victims of torture or ill-treatment, for investigating suspected cases of torture and for reporting the investigation's findings to the relevant authorities.
The principles applicable to the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are to be found in Annex 1 of the Manual, the relevant parts of which read as follows:
“The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment (hereafter referred to as torture or other ill-treatment) include the following: clarification of the facts and establishment and acknowledgment of individual and State responsibility for victims and their families, identification of measures needed to prevent recurrence and facilitation of prosecution or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation.
States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated. Even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission, investigations by impartial medical or other experts. ...
The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. ... Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation.
Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation and shall be entitled to present other evidence.
...
A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. On completion, this report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation, and, as appropriate, indicate steps to be taken in response.
Medical experts involved in the investigation of torture or ill-treatment should behave at all times in conformity with the highest ethical standards and in particular shall obtain informed consent before any examination is undertaken. The examination must follow established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials.
The medical expert should promptly prepare an accurate written report. This report should include at least the following:
(a) The name of the subject and the name and affiliation of those present at the examination; the exact time and date, location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g. detention centre, clinic, house); and the circumstances of the subject at the time of the examination (e.g. nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner, threatening statements to the examiner) and any other relevant factors;
(b) A detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, the time when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms;
(c) A record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries;
(d) An interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and further examination should be given;
(e) The report should clearly identify those carrying out the examination and should be signed.
...”
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-60717
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF LISIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1968 and lives in Bielsko-Biała.
10. On 10 August 1991 the applicant was arrested by the police on suspicion of having committed homicide. On 12 August 1991 the Bielsko-Biała District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and uttering threats, and detained him on remand.
11. On 30 April 1992 the Bielsko-Biała Regional Prosecutor lodged a bill of indictment with the Bielsko-Biała Regional Court (Sąd Rejonowy). The applicant was indicted on the charges of homicide and uttering threats.
12. The trial began on 16 June 1992.
13. On 14 October 1992 Court quashed the order for the applicant’s detention and released him. The Regional Prosecutor appealed.
The Katowice Court of Appeal dismissed the appeal on 4 November 1992. It held that a “reasonable suspicion” that the applicant had committed the offences with which he had been charged was no longer justified because S.U., the witness who had incriminated him in the investigation, had fundamentally changed his original testimony.
14. Between 16 June 1992 and 1 May 1993 the trial court held fourteen hearings. It heard evidence from twenty lay witnesses and one expert witness.
15. Between 4 May 1993 and 25 May 1994 the Bielsko-Biała Regional Court held ten hearings and heard evidence from forty-one witnesses and two experts. It needed to rehear evidence from some witnesses several times.
16. On 25 May 1994 the court acquitted the applicant on all charges. On 12 October 1994 the Bielsko-Biała Regional Prosecutor appealed against the acquittal.
17. The appeal was heard before the Katowice Court of Appeal on 9 March 1995. The court quashed the contested judgment and remitted the case to the Bielsko-Biała Regional Prosecutor, holding that a further investigation should be carried out. In particular, the Court of Appeal ordered the prosecutor to reconstruct the scene of the crime and to obtain evidence from experts in psychology. It considered that in order to assess the credibility of evidence given by S.U., the main prosecution witness, it was necessary to diagnose his personality and establish his perception skills.
18. On 12 May 1995 the Bielsko-Biała Regional Prosecutor asked the Institute of Forensic Experts (Instytut Ekspertyz Sądowych) in Cracow to prepare a comprehensive report on S.U.’s psychological profile. Furthermore, since in the course of the original investigation the prosecution had already obtained two, albeit inconsistent, reports from psychologists, the prosecutor also adduced copies of those reports and asked experts from the Institute to resolve contradictions.
19. The experts set the dates of the examination for 19 December 1995 and for 12 February 1996 respectively. However, S.U. did not keep his appointment for the examination on either of these dates. Eventually, he appeared before the experts on 9 May 1996 and was examined by them on that day. Their report was ready on 6 September 1996.
20. On 30 December 1996 the Bielsko-Biała Regional Prosecutor lodged a new bill of indictment with the Bielsko-Biała Regional Court. The applicant was again indicted on the charges of homicide and uttering threats.
21. On 27 March 1997 the trial court remitted the case to the Bielsko-Biała Regional Prosecutor, holding that the prosecution had not complied with the orders given by the Katowice Court of Appeal on 9 March 1995. They had not, among other things, reconstructed the scene of the crime.
22. On 30 April 1997 the Bielsko-Biała Regional Prosecutor indicted the applicant on the same charges for the third time.
23. The retrial started on 4 September 1997. The subsequent hearings were held on 4 November 1997, 6 January and 8 April 1998. On 12 February 1998 the court cancelled a hearing because the applicant was ill.
24. On 9 June 1998 the trial was adjourned since a new judge rapporteur had in the meantime been appointed and needed to study the case-file.
25. The trial was to be resumed on 26 March 1999 but it was again postponed. The applicant was absent at that hearing. He was also absent at the hearing listed for 7 May 1999. The applicant’s lawyer informed the court that he had left for Greece in search of odd jobs and that he would be absent for some four months. In fact, the applicant returned after three weeks.
Also, at that time, the court found that the witness S.U. had left his place of residence without indicating his new address and that his whereabouts were unknown. In the circumstances, the court stayed the proceedings.
26. On 7 November 2000, at the applicant’s request, the proceedings were resumed. In 2001 the Regional Court held three hearings. They took place on 20 April, 15 June and 31 October respectively.
27. Further hearings were scheduled for 4 January, 6 February, 6 March, 9 April and 14 May 2002. The court heard evidence from twenty witnesses.
At the hearing held on 9 April 2002 the court, at the Regional Prosecutor’s request, ordered that evidence from a DNA identification test of several hairs found on the victim be obtained to determine whether they belonged to the applicant. However, on 13 May 2002, experts from the Forensic Laboratory of the Silesian Regional Police Headquarters informed the court that it was not possible for them to make any DNA identification of the specimens as they had to be analysed through a chondrosome test, which only the Cracow Institute of Forensic Experts or the Bydgoszcz Forensic Institute could carry out. On 20 May 2002 the court asked the Cracow Institute to make the relevant test and adjourned the trial sine die.
In the meantime, the Regional Court had tried to establish the whereabouts of S.U., who was a homeless person. It appears that those efforts have so far been unsuccessful.
The proceedings are pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91702
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF PALADI v. MOLDOVA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 34;Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Karel Jungwiert;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Peer Lorenzen;Sverre Erik Jebens
TEXT: 10. The applicant was born in 1953 and lives in Chişinău.
11. The facts of the case, as submitted by the parties, may be summarised as follows.
12. The applicant was a deputy mayor of Chişinău and was also a lecturer at the Academy of Economic Studies in Moldova. Between 24 September 2004 and 25 February 2005 he was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (“the CFECC”). On 25 February 2005 he was transferred to Ministry of Justice Remand Centre no. 3 in Chişinău (also known as “Prison no. 3”, subsequently renamed “Prison no. 13”). The applicant suffers from a number of illnesses (see paragraphs 22 and 25 below).
13. The applicant was accused in three separate sets of criminal proceedings under Article 185 (3) of the old Criminal Code and Article 327 (2) of the new Criminal Code (“the CP”) of abuse of power and acting in excess of authority (excesul de putere sau depăşirea atribuţiilor de serviciu; abuzul de putere sau abuzul de serviciu).
14. On 17 September 2004 the CFECC opened a criminal investigation concerning the applicant and on 24 September 2004 he was taken into custody.
15. On 27 September 2004 the Buiucani District Court issued a warrant for his arrest and detention for thirty days. The reasons given by the court for issuing the warrant were that:
“[The applicant] is dangerous to society. If released he may reoffend, destroy evidence or abscond from the law-enforcement authorities, obstruct the normal course of the investigation or the taking of evidence and influence evidence and witnesses.”
On 4 October 2004 the Chişinău Court of Appeal upheld that decision. Judge M.B. dissented, finding no reason to detain the applicant as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation. The applicant had a family and a permanent residence in Chişinău, was ill and had no criminal record.
16. The applicant made habeas corpus requests on 5, 13 and 19 October, 2 November and 29 December 2004 and 22 February, 23 June and 20 September 2005. He relied on the following elements: his poor state of health; the fact that he had no criminal record; his impeccable reputation as a doctor of economics and a university lecturer; the fact that his identity documents had been seized by the prosecuting authorities so that he could not leave the country; the fact that his family and permanent residence were in Chişinău; the fact that he was supporting his 75-year-old mother who was an invalid; the fact that he had the personal guarantee of three wellknown persons (who had already deposited 3,000 Moldovan lei (MDL) and each of whom was prepared to pay the further MDL 8,000 initially requested by the court); and the lack of reasons for his arrest. All these requests were rejected on grounds similar to those cited in the decision of 27 September 2004.
17. On 22 October 2004 the case file was submitted to the trial court.
18. On an unspecified date in October 2004 the prosecution submitted to the trial court a second case file in which the applicant was also identified as one of the accused. The investigation into that case had begun on 28 March 2003. The investigators had twice closed it for lack of evidence (on 15 July and 26 September 2003) but on both occasions a prosecutor had ordered its reopening. On 27 October 2004 both cases were joined.
19. On 2 November 2004 Judge L.V., President of the Centru District Court, rejected the applicant's request for release against the personal guarantee of three well-known persons, without giving any reasons.
20. The applicant appealed but Judge L.V. refused to forward his appeal to the Court of Appeal, on the ground that the law did not provide for an appeal against such decisions. The applicant submitted the appeal to the Chişinău Court of Appeal directly, which also refused to examine it for the same reason. A similar response was given to appeals lodged on 25 February and 27 September 2005.
21. On 30 December 2004 a third criminal case file was submitted to the trial court, accusing the applicant of abuse of power in his own personal interest. This case was also joined to the two cases against the applicant referred to above.
22. On 24 September 2004 the applicant was detained in the CFECC remand centre. On 29 September 2004 a medical advisory board examined the applicant's medical file at his wife's request and made the following diagnosis: type II diabetes (insulin-dependent), polyneuropathy, diabetic angiospasm, stage II autoimmune thyroiditis, after-effects of trauma to the head with intracranial hypertension, vagovagal spasms, chronic obstructive bronchitis, recurrent chronic pancreatitis with endocrine failure, chronic active hepatitis and asthenic syndrome. On 14 November 2004 the applicant's wife informed the trial court of the findings of the medical board.
23. According to the applicant, the CFECC remand centre had no medical personnel until late February 2005, when a general practitioner was hired to work there. He claimed that he had requested medical assistance on a number of occasions but had received treatment only from doctors from other institutions who visited him when there was an emergency. On 28 September 2004 an ambulance was called to treat the applicant for acute hypertension. The doctor prescribed a consultation with an endocrinology specialist, who saw the applicant on 21 December 2004. The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply. He submitted copies of complaints from his wife, his mother and a parliamentary group to the CFECC authorities, the Prisons Department, the trial court, the President of Moldova, the Minister of Justice and other authorities. The applicant's wife received several formal replies, essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise.
24. On 15 February 2005 the applicant was seen by Doctor B.E., a psychoneurologist, who concluded that his state of health was “unstable with a slight improvement” and that he needed to continue treatment under supervision. On 25 February 2005 the applicant was transferred to the remand centre of Prison no. 3 in Chişinău.
25. On 2 March 2005, in accordance with a court order, the applicant was examined by a medical board of the Ministry of Health and Social Welfare. B.I., a neurologist and member of the board, diagnosed him with encephalopathy, polyneuropathy of endocrinal origin, hypertension, peripheral vascular disease and inferior paraplegia. He recommended that the applicant be treated on an in-patient basis. Z.A., an endocrinologist and member of the board, diagnosed the applicant with diabetes, macro- and micro-angiopathy, cardiomyopathy, arterial hypertension, diabetic steatorrhoeic hepatosis, thyroiditis, hypothyroiditis and encephalopathy. He recommended a special diet and treatment on an in-patient basis in specialised clinics (endocrinology-cardiology-neurology). E.V., head of the Cardiology Department of the Ministry of Health and Social Welfare and a member of the board, diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy, unstable pectoral angina, prolonged attacks during the previous two weeks, third-degree arterial hypertension, second-degree congestive heart failure, hypertension and endocrinal renal failure, diabetic vascular disease and thoracic dilatation. E.V. recommended that the applicant be treated on an inpatient basis in a cardiology unit in order to investigate and prevent the risk of myocardial infarction. She considered it necessary to undertake anticoagulant treatment but noted that, given the risk of gastric haemorrhage, such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary.
26. On the basis of these recommendations, the trial court ordered the applicant's transfer to a prison hospital.
27. On the basis of an order by the Ministry of Health and Social Welfare, Doctor V.P., a neurologist from the Republican Neurology Centre of the Ministry of Health and Social Welfare (“the RNC”), examined the applicant on 20 May 2005. He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of the Ministry of Health and Social Welfare, including treatment with hyperbaric oxygen (HBO) therapy.
28. On 30 May 2005 the director of the prison hospital where the applicant was being held informed the court of V.P.'s recommendations and said that the applicant was being given the medication prescribed but not HBO therapy, which it was impossible to administer at the prison hospital due to the lack of the necessary equipment. He also informed the court that the applicant's condition prevented him from attending court hearings.
29. On 1 June 2005 the Centru District Court found that the condition of the applicant and of another co-accused had worsened, and suspended examination of their cases “until recovery”. The court did not respond to the applicant's wife's request for his release to allow treatment or to the abovementioned letter from the director of the prison hospital.
30. By letters of 9, 17 and 22 June, 5 July and 1 August 2005 the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by V.P.
31. On 7 and 15 September 2005 a medical board of the Ministry of Health and Social Welfare which included doctors from the RNC examined the applicant and on 16 September 2005 recommended, inter alia, HBO treatment in a specialised neurological unit.
32. On 16 September 2005 the director of the prison hospital confirmed on the applicant's behalf that the hospital did not have the necessary equipment for the recommended neurological treatment. That information was submitted to the Centru District Court.
33. On 19 September 2005 the Helsinki Committee for Human Rights filed an amicus curiae brief with the court after visiting the applicant in hospital. It considered that the applicant's state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend examination of the case pending his recovery.
34. In view of the findings of the Ministry of Health and Social Welfare medical board of 16 September 2005 recommending that the applicant be treated in a specialised neurological unit, the Centru District Court on 20 September 2005 ordered his transfer to the RNC, a State-run institution, for thirty days. According to the Government, the usual period of treatment at the RNC in September-November 2005 was eight to nine days.
35. On 27 September 2005 the applicant requested the Centru District Court to order an expert report on his state of health before and after his arrest as well as his condition on the date of lodging the request. In its decision of the same day the Centru District Court rejected the applicant's request on the ground that no doubts had been raised regarding his state of health.
36. On an unspecified date the applicant requested the RNC management to provide a description of his state of health and the treatment received. He received no answer. On 17 October 2005 the court ordered the RNC to answer immediately and the court received its answer on 20 October 2005. In it, the RNC set out its diagnosis of the applicant's condition and found that his health was unstable and that he needed further treatment. On 20 October 2005 the Centru District Court extended the applicant's treatment until 10 November 2005 on the basis of the letter from the RNC.
37. According to a certificate issued by the HBO therapy unit of the Republican Clinical Hospital (“the RCH”), the applicant received five HBO therapy sessions there starting on 2 November 2005. The applicant was prescribed a twelvesession course, scheduled to continue until 28 November 2005. According to the applicant, he was escorted from the RNC to the RCH every other day for the procedure and also began a course of acupuncture there. The applicant submitted a copy of the certificate to the Centru District Court, which on 10 November 2005 decided that he should be transferred to the prison hospital. The court based its decision on the RNC's letter of 9 November 2005, which stated that the applicant's condition had stabilised and that he would be discharged on 10 November 2005. The applicant's diagnosis as stated in the letter of 9 November 2005 was as follows: serious, subcompensated type II diabetes (insulindependent), diabetic retinopathy, autoimmune thyroiditis, hypothyroiditis, ischaemic cardiomyopathy, pectoral angina, second-degree arterial hypertension with very high risk, mixed cardiopathy, rare supraventricular extrasystolia, stage II dyscirculatory mixed encephalopathy, cerebral atrophy, pyramidal insufficiency, particularly on the right side, diabetic polyneuropathy and astheno-depressive syndrome. The letter also noted that the applicant's continued detention would “contribute to a permanent state of psycho-emotional tension which, in turn, [would] cause fluctuations in arterial pressure and blood-sugar levels”. The same diagnosis was noted in the medical form for the applicant's discharge from the RNC on 10 November 2005.
38. Since the RNC letter did not include HBO therapy among its recommendations for treatment, the court found the schedule of HBO treatment extending until the end of November to be irrelevant.
39. On 16 November 2005 the Ministry of Health and Social Welfare replied to the Government Agent's questions regarding the need to treat the applicant. The letter stated that on 17 November 2005 the applicant's medical records had been examined by a group of doctors, who found that he did not need in-patient treatment “in any medical establishment, including the [RNC]” and that he could be treated as an outpatient.
40. On 24 November 2005 the applicant was examined by a psychotherapist, who diagnosed him with cerebral-organic asthenic disturbance, anxious-depressive disturbance of organic-psychogenic origin and severe existential stress.
41. On 29 November 2005 the applicant was due to be discharged from the RNC. The medical form for the applicant's discharge from the RNC on 29 November 2005 repeated the diagnosis made on 9 November 2005, adding a diagnosis of prostate abscess. Amongst the recommendations made by the RNC was HBO treatment every second day. On 30 November 2005 the trial court ordered the applicant's transfer to the Republican Clinical Hospital (“the RCH”) for ten days in order to receive HBO treatment. After the hearing the applicant lost consciousness and was taken by ambulance to the Municipal Clinical Hospital (“the MCH”) with suspected myocardial failure. As a result, the trial court amended its decision of the same date and ordered that the applicant be treated in the MCH.
42. In a letter of 12 February 2007 the applicant submitted to the Court a certificate stating that on 20 June 2006 he had been recognised as having a seconddegree disability.
43. On 11 March 2008 the Minister of Health ordered the setting-up of a medical commission for the purpose of determining the applicant's state of health during the period from 21 September to 30 November 2005. The commission established that the applicant had been given all the treatment prescribed by the RNC while in detention in the prison hospital. It further found that HBO treatment had not been required in the applicant's case but was simply an additional treatment for diabetes and its complications. The interruption of the applicant's HBO treatment had not affected his state of health, as proved by his stable blood-sugar levels before and after interruption.
44. On 23 June 2005 the trial court rejected a habeas corpus request made by the applicant, on the following grounds:
“... the reasons for prolonging the accused's detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court, and altering the preventive measure may hinder the establishment of the truth in the criminal trial.”
45. On 8 July 2005 the applicant made another habeas corpus request, relying on Articles 2 and 3 of the Convention and emphasising that while examination of his case had been suspended pending his recovery, he had been refused the medical treatment necessary to ensure such recovery. The court postponed examination of the request. Examination of the request was again postponed on 11 July 2005 for an indefinite period.
46. On 18 July Judge L.V. was absent and examination of the case was postponed. On 22 July 2005 other members of the court were absent and examination of the case was once more postponed.
47. On 25 July 2005 the applicant requested a copy of the court transcripts of 8 and 11 July 2005 and informed the court of the worsening of his condition. The request was refused. On 3 August 2005 the Centru District Court informed the applicant that examination of his habeas corpus request had been postponed pending an answer from the Ministry of Health and Social Welfare to its enquiry of 7 July 2005 regarding his condition.
48. On 20 September 2005 the Centru District Court rejected the applicant's habeas corpus request “because the reasons for prolonging his detention remain valid”. The court also rejected the applicant's complaint that the inadequate medical treatment he had received amounted to inhuman and degrading treatment:
“... because the representative of the [prison hospital] declared that [the applicant] had been given the necessary medical treatment on an in-patient basis; there is no evidence of inhuman or degrading treatment.”
At the same time, however, the court ordered the applicant's transfer to the RNC (see paragraph 34 above).
49. On 27 September 2005 an appeal by the applicant against the refusal of his habeas corpus request was not examined, the court finding that no further appeal was possible. The court also rejected his request for a medical examination to establish his current state of health and the manner in which he had been treated during his detention.
50. On 11 October 2005 the applicant made another habeas corpus request challenging, inter alia, the persistence of any reasonable suspicion justifying his continued detention. He referred to the finding of a violation of Article 5 of the Convention in the case of Sarban v. Moldova (no. 3456/05, 4 October 2005) as a new circumstance warranting reexamination of the need to detain him. The court rejected the request, finding that it could not be submitted until one month at least after the last such request had been examined. It also found that the judgment referred to was not a new circumstance, as it related only to Mr Sarban and not to the applicant.
51. On 10 November 2005 the applicant asked the Centru District Court to order his continued treatment at the RNC or his release based on his habeas corpus request. The court rejected the request to continue treatment at the RNC (see paragraph 37 above) and did not examine the habeas corpus request.
52. On 15 November 2005 the Centru District Court rejected the applicant's habeas corpus request of 10 November 2005, finding that:
“... not all the evidence has been examined; [the applicant] has worked as a deputy mayor of Chişinău and continues to have influence over witnesses yet to be questioned; he may obstruct the presentation to the court of authentic evidence still being kept by Chişinău Municipality.”
53. On 15 December 2005 the applicant's detention pending trial was replaced with an obligation not to leave his city of residence.
54. On the evening of Thursday 10 November 2005 the Court indicated by facsimile to the Moldovan Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should not be transferred from the [RNC]. This interim measure will be valid until the Court will have the opportunity to examine the case, i.e. until 29 November 2005 at the latest”. The same message was sent several times by facsimile during the morning of Friday 11 November 2005. On 11 November 2005, the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by the Government Agent, but received no response.
55. On the morning of Friday 11 November 2005 the applicant's lawyer requested the trial court to stay execution of its decision of 10 November 2005 and to prevent the applicant's transfer from the RNC. He submitted a copy of the facsimile from the European Court of Human Rights regarding the interim measure. The Centru District Court did not hold a hearing and did not reply to his request. The applicant was finally transferred to the prison hospital on the same day.
56. On Monday 14 November 2005 the applicant's lawyer informed the President of the Supreme Council of the Judiciary (Consiliul Superior al Magistraturii) of the failure of Judge L.V., President of the Centru District Court, to examine his request of 11 November 2005, and asked for urgent action in order to ensure compliance with the Court's directions for interim measures. On the same day the lawyer submitted a similar request to the Agent of the Moldovan Government before the Court and to the Prosecutor General's Office, noting that the prosecutor in charge of the case had supported the applicant's request to continue being treated at the RNC. He also noted that the decision to transfer the applicant to the prison hospital had not been enforced by 10 a.m., when he had lodged his request with the Centru District Court.
57. On the same date and following the Government Agent's request, the Centru District Court ordered the applicant's readmission to the RNC until 29 November 2005. The subsequent events are disputed by the parties. According to the applicant, he was brought to the RNC at 6.30 p.m., but for six hours the management refused to admit him. When the applicant began to feel ill, the management admitted him after midnight. According to the Government, the applicant was admitted on the day the Centru District Court ordered his admission and the delay resulted from the doctors' view that the applicant did not require further treatment at the RNC. The Government Agent personally oversaw execution of the order.
58. The applicant submitted a copy of a news report broadcast on the PRO-TV television channel, which showed the events at the RNC. The reporter stated that the applicant had been kept waiting for six hours for a decision and that he had finally been admitted after midnight. The doctors informed the reporter that they had refused initially to admit the applicant because they did not have his personal medical file, and had admitted him only when the medical file was brought to them. In an interview given to the same reporter, the Government Agent stated that the reason for the delay in admitting the applicant had been “certain technical, organisational issues”. This was confirmed by a statement from the deputy head of the Prisons Department.
59. On 12 December 2005 the Supreme Council of the Judiciary informed the applicant's lawyer, in response to his letter of Monday 14 November 2005, that the Centru District Court had been officially informed of the European Court's directions for interim measures via a facsimile from the Government Agent on 14 November 2005 at 2.19 p.m. Following an urgent court hearing, the trial court had ordered the applicant's readmission to the RNC.
60. The relevant provisions of the Code of Criminal Procedure (“the CCP”) read as follows:
“1. Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or reoffend; alternatively, they can be applied by the court in order to ensure the enforcement of a sentence.
2. Detention pending trial and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in paragraph 1.
3. In deciding on the necessity of applying preventive measures, the prosecuting authority and the court shall take into consideration the following additional criteria:
(1) the nature and degree of harm caused by the offence;
(2) the character of the ... accused;
(3) his/her age and state of health;
(4) his/her occupation;
(5) his/her family status and the existence of any dependants;
(6) his/her economic status;
(7) the existence of a permanent place of abode;
(8) other essential circumstances...”
“1. Requests ... shall be examined and decided upon immediately after being lodged. If the authority to which the request is addressed cannot decide upon it immediately, it shall give its decision within three days from the date of receipt. ...”
61. Following the entry into force of the new Code of Criminal Procedure on 12 June 2003, the first-instance courts were obliged to ensure that a judge was on duty at weekends and on public holidays to deal with any urgent matters. According to a certificate issued by the President of the Centru District Court, that court had put in place a duty roster of this kind.
62. In its judgment in LaGrand (judgment of 27 June 2001, ICJ Reports 2001, §§ 111-115)), the International Court of Justice decided that:
“111. As regards the question whether the United States has complied with the obligation incumbent upon it as a result of the Order of 3 March 1999, the Court observes that the Order indicated two provisional measures, the first of which states that
'[t]he United States of America should take al1 measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of al1 the measures which it has taken in implementation of this Order'.
The second measure required the Government of the United States to 'transmit this Order to the Governor of the State of Arizona'. ... the State Department had transmitted to the Governor of Arizona a copy of the Court's Order. ...
The United States authorities have thus limited themselves to the mere transmission of the text of the Order to the Governor of Arizona. This certainly met the requirement of the second of the two measures indicated. As to the first measure, the Court notes that it did not create an obligation of result, but that the United States was asked to 'take al1 measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings'. The Court agrees that due to the extremely late presentation of the request for provisional measures, there was certainly very little time for the United States authorities to act.
112. The Court observes, nevertheless, that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available. ...
113. It is also noteworthy that the Governor of Arizona, to whom the Court's Order had been transmitted, decided not to give effect to it, even though the Arizona Clemency Board had recommended a stay of execution for Walter LaGrand.
114. Finally, the United States Supreme Court rejected a separate application by Germany for a stay of execution, '[g]iven the tardiness of the pleas and the jurisdictional barriers they implicate'. Yet it would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, which would have given it 'time to consider, after briefing from al1 interested parties, the jurisdictional and international legal issues involved . . .' (Federal Republic of Germany et al. v. United States et al., United States Supreme Court, 3 March 1999).
115. The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take al1 the steps they could have taken to give effect to the Court's Order. The Order did not require the United States to exercise powers it did not have: but it did impose the obligation to 'take al1 measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings ...'. The Court finds that the United States did not discharge this obligation.
Under these circumstances the Court concludes that the United States has not complied with the Order of 3 March 1999.”
VIOLATED_ARTICLES: 3
34
5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-76293
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ALIUTA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1959 and lives in Romania.
5. On 30 September 1997, the applicant was placed in police custody on charges of robbery, and informed that an investigation had been opened against him by the prosecutor attached to the Supreme Court of Justice. On 24 October 1997, the prosecutor committed the applicant for trial before the Bucharest County Court.
6. The Bucharest County Court acquitted the applicant in a judgment of 2 December 1998, upheld, on 9 June 1999, by the Bucharest Court of Appeal. However, in a final decision of 21 March 2000, the Supreme Court of Justice reversed the judgment, convicted the applicant and sentenced him to four years and six months’ imprisonment. He was detained from 30 September 1997 to 10 February 1998 and again from 14 April 2000 to 19 February 2001.
7. On April 2001, the ProcuratorGeneral, following the applicant’s request, lodged an extraordinary appeal with the Supreme Court of Justice to have the final decision of 21 March 2000 quashed (“recurs în anulare”).
8. On 8 October 2001, the Supreme Court of Justice allowed the extraordinary appeal. It quashed the final decision of 21 March 2000, the decision of 9 June 1999 and the judgment of 2 December 1998 and sent the case back to the prosecutor to continue the investigations. It held that the evidence adduced in the case was contradictory and needed further clarification before the case could be tried by the courts.
9. In a decision of 10 July 2002, the prosecutor attached to the Supreme Court of Justice closed the criminal investigations against the applicant. On 23 May 2003, the same prosecutor informed the applicant that he had reversed his previous decision and reopened the criminal investigations in the case.
10. On 18 March 2004 the prosecutor again committed the applicant for trial before the Bucharest County Court, which acquitted the applicant in a judgment of 15 December 2005.
11. The prosecutor attached to the Bucharest County Court appealed against this judgment to the Bucharest Court of Appeal, where the case is still pending today.
12. In a judgment of 26 June 2003, the Bucharest County Court dismissed as premature a civil action lodged by the applicant against the State through its Ministry of Finances, seeking damages for his arrest, which he judged to have been illegal. It appears from the file that the applicant did not appeal against this judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1