ITEMID: 001-67416
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: B. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Libyan national who was born in 1968. He was represented before the Court by Mr N. Odén, a lawyer practising in Gothenburg. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Sweden on 13 May 2001 and applied for asylum on 28 May 2001.
An initial interview with the applicant was conducted by the Migration Board (Migrationsverket) on 30 May 2001. At that interview the applicant stated, inter alia, that he had travelled to Sweden with a false passport which he had obtained through a friend of his father's who worked at the Libyan passport authority. As agreed with that person, he had sent back the false passport after having entered Sweden. His own genuine passport remained in Libya with his parents. Asked about his professional background, the applicant responded that he was an architect by profession and had been employed by the state for seven years at “the People's Committee for the educational sector in the district of al-Zawiyah”. However, he had stopped working in mid-January 2001. The applicant stated that disturbances had erupted in al-Zawiyah at the end of the year 2000. He had openly participated in the protests against the presence of (sub-Saharan) Africans in the country, mainly by distributing leaflets. In January 2001 he had been arrested by the security office in al-Zawiyah and accused of participating in the uprising against the Africans. On this occasion he had been questioned and held in detention for four days. Following the interview, the record of it was read out to the applicant who declared that it was correct and that he had understood the interpreter well.
A second interview was held by the Migration Board on 21 March 2002. On this occasion the applicant was heard, inter alia, about the contents of three documents which he had received from Libya after his arrival in Sweden and submitted to the Board on 6 August 2001: (1) a birth certificate, (2) an international driver's licence issued in Libya on 15 May 2001 after he had left for Sweden, and (3) a document showing that he had completed his national military service. Asked about his passport, the applicant stated that it was impossible for him to obtain it as it was held by the security service which had taken it at the end of October 2000 “for reasons identical to his grounds for seeking asylum”.
Describing his activities during the disturbances in his hometown, the applicant stated that he had participated by writing and distributing leaflets, encouraging people to force the Government to resign. In the leaflets, he had mentioned that, since coming to power in 1969, Mu'ammar Al-Qadhafi had treated the applicant's clan harshly. The clan had been politically influential before 1969. The uprising had lasted for 2-3 weeks in September 2000 and most of those living in al-Zawiyah had taken part. The security services had been sent to al-Zawiyah to deal with the problem. They had first targeted the applicant's clan. They had had no information regarding the names of the persons who had participated but had acted arbitrarily and arrested a large number of young men. In October 2000 the applicant had been arrested by the security service at his work place and held in detention for four days awaiting a hearing concerning his detention. On the fourth day the persons in charge of his interrogation had released him pending further questioning. Upon his release, the applicant had gone to Sabrata, a small town west of al-Zawiyah, where he had stayed in hiding with a friend for six to eight months before leaving for Sweden. Throughout this period he had been searched for by the security service.
Asked about what would happen to him if returned to Libya, the applicant first stated that it was difficult to say exactly but that he would consider himself fortunate if he were given life imprisonment. Slightly later during the interview, however, he stated that the media had reported that death sentences had been handed down against the leaders of the revolt and that his own name had been among those that had been mentioned. He also asserted that a friend in Libya had informed him that he had been sentenced to death in absentia. According to the applicant, this type of judgment was not issued by a court but by a kind of popular conference entitled Al-Moétamarat Al-Shaébia. No appeal lay against it. The applicant further stated that it was possible that news about his sentence could have been published in either of two named government-controlled Libyan newspapers.
The applicant declared that he had understood the interpreter well. The record of the second interview further stated that it had been read out to the applicant who had approved it.
In written observations submitted to the Migration Board on 16 April 2002, the applicant's counsel, who had not been present at the interviews, stated that the record of the second interview had not been read out to the applicant or approved by him. Counsel further mentioned that, while in hiding in Sabrata, the applicant had been unable to communicate with his parents by telephone. Instead, the friend who had been hiding him had visited the parents a couple of times and had then received information and the applicant's allegedly false passport.
The Migration Board noted that in March 2001 the Swedish General Consulate in Tripoli had received an application for an entry visa in the applicant's name, which contained a copy of a passport in the same name. The application had been rejected.
On 5 August 2002, in reply to this information, the applicant's counsel noted that the copy of the passport was a copy of the same, allegedly false, passport the applicant had used to enter Sweden. The name, address and place of birth were correct in the application. The applicant had not made the visa application himself and therefore assumed that it must have been made by the head of the passport authority, who was the person who had issued the false passport and had made the arrangements for the applicant's journey to Sweden. The applicant was now in a position to name this person, as he had, for unknown reasons, left his position at the passport authority. Counsel further stated that the applicant's brother had sought to obtain a copy of the newspaper in which the applicant's death sentence had been reported but the brother's motives had been questioned and he had failed to obtained the copy due to fear.
On 25 October 2002 the Migration Board rejected the applicant's request for asylum and ordered that he should be expelled from Sweden. It considered it remarkable that the applicant had been able to leave detention unconditionally, without for example any obligation to report or to put up bail. Moreover, it found that the fact that the applicant had remained in the country for several months after his release indicated that he did not perceive his need for protection as pressing. It also found it remarkable that he had been able to leave the country with a passport that he had acknowledged contained correct personal data, especially since he alleged that the Libyan authorities were searching for him. Against this background, the Migration Board found that the applicant's involvement in the riots as well as the possible consequences thereof were exaggerated.
On 29 November 2002 the applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 9 January 2003 he submitted what he stated was a copy of a document which his brother had been able to obtain “via an acquaintance with contacts in the congress”. The document had been sent to an acquaintance in England who, in turn, had sent it to the applicant by fax. Issued by the People's Committee in al-Zawiyah on 28 May 2001, it called for the search and arrest by the security service of four named persons, including the applicant. It stated that a decision had been taken that the four persons should be executed on account of acts committed against the security of the state. While the applicant did not at this stage specifically claim that this document was a “judgment” issued by the People's Committee, he asserted that it unambiguously demonstrated that he had been sentenced to death in Libya and was being sought for execution of the judgment.
On 29 April 2003 the Aliens Appeals Board rejected the applicant's appeal. It noted that there had been violent riots in September 2000 resulting in the death of many of its participants. Most of the people accused of involvement in the riots had been sentenced to death. It considered that the applicant had not shown that he would risk the death penalty upon return to Libya. If he had been of interest to the Libyan authorities he would not have been able to leave the country the way he claimed. Even having regard to the alleged copy of the judgment, the Aliens Appeals Board found reasons to question that he was of any particular interest to Libyan authorities. He had, thus, not shown that he was in need of protection.
In June 2003 the applicant filed a new application for a residence permit with the Aliens Appeals Board, arguing that the previous decisions had been based on misunderstandings, misinterpretations and mistrust. He provided further details regarding the circumstances surrounding his arrest and subsequent escape from Libya. He thus stated, inter alia, that he had been one in a group of seven persons who had cooperated in writing and distributing leaflets in order to demonstrate their discontent with the regime. However, the security services had begun a campaign of arrests, torture and detentions without trial. One in their group had been arrested and, before being executed, had been forced under torture to reveal the identity of the others. When learning of the arrest the other members of the group had tried to hide or escape, but the applicant and two others had been arrested. He had been held in detention for four days at a local police station but had eventually been able to bribe a police officer to let him escape. He had paid the officer the equivalent of 3000 US dollars and had handed over his genuine passport. He had thereafter hid in another town for seven months. By bribing the head of the passport authority his family had been able to obtain a false passport for him. This passport was in fact a “real” and new passport but it was not “registered with the passport authority” and did not contain a bar code used for computer control or his “real name”. The passport also erroneously stated that he was married. The same person had arranged all other details regarding his journey, including his application for a visa and his ticket.
The applicant further stated that during the time when he was in hiding in Libya the authorities had sent summonses for his appearance to his home, to the office where he worked and to the engineers' labour union of which he was a member. When this had not succeeded the authorities had tried to put pressure on his family. His father had been arrested and detained for three days, like his brothers who had been tortured to disclose his whereabouts. To avoid exposing his relatives to further torture, he had decided to escape abroad. However, after his arrival in Sweden his youngest brother had been imprisoned and had informed the authorities that the applicant was living in Sweden. The applicant also stated that he had stayed in Libya for several months before leaving as the journey had required careful preparation. After a period of time in Sweden the applicant had learned that he and three others in his group had been sentenced to death and that orders had been issued to all police units to arrest and execute them. Several attempts had been made to obtain this judgment. His brothers had finally managed to get in touch with “someone who has the key to the cupboard where the judgments are kept”. By bribing this person with 1000 dinars they had managed to obtain a copy of the judgment. The applicant claimed that two of the persons in his group had been granted asylum in the United Kingdom and in Canada.
In support of his new application the applicant submitted what he claimed were copies of three summonses for him to appear for questioning issued by the Libyan authorities in October and November 2000 and May 2001, respectively.
On 4 September 2003 the Aliens Appeals Board rejected the new application stating that it contained no new circumstances which would give reasons to change its previous assessment. The new documents, which were copies, were not of such a character as to influence the assessment of the applicant's need for protection.
The immigration authorities have contacted the Libyan Embassy in Stockholm in order to obtain travel documents for the purpose of enforcing the expulsion order against the applicant.
By a decision of 21 October 2003, following the Court's indication under Rule 39 of the Rules of Court, the Migration Board stayed the enforcement of the applicant's expulsion until further notice.
On 19 November 2003 the applicant submitted to the Court copies of documents purportedly issued by Libyan authorities. One document, dated 3 June 2001, is a communication from “the Secretary to the People's Committee of the Congress” in old Zawia to “the Secretary to the People's Committee for Justice and General Security”, in which the latter is requested to agree to the notification of all airports, seaports and border-controls to prevent five named individuals, among them the applicant and a Mr Hasan Ahmed El Amouri, from leaving Libya. Another document, dated 18 June 2001, is a communication from the first-mentioned official to “the Secretary to the Office for Communications Abroad”, informing the recipient that four individuals mentioned in the first document, including the applicant but not Mr El Amouri, had fled the country and calling for their capture and return to Libya by the external security organs. A third document records a decision of 27 May 2001 to detain the applicant's younger brother for failure to disclose the applicant's whereabouts. Another document contains a summons for the applicant's father to appear on 20 June 2001 for questioning in relation to the applicant's escape from Libya.


ITEMID: 001-87642
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ASHUGHYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 and 6-3-b;Violation of Art. 11;Violation of P7-2;Remainder inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1965 and lives in Yerevan. She works as a cook.
5. In February-March 2003 a presidential election took place in Armenia. Following the election, the applicant participated in a series of rallies of protest organised in Yerevan by the opposition parties.
6. On 7 April 2003 at 5 p.m. a demonstration was held in the centre of Yerevan on the occasion of Mother’s Day. The demonstration took place on the Mashtots Avenue next to the Research Institute of Ancient Manuscripts (Մատենադարան). It appears that the demonstration was of a political nature and criticism of the Government and of the conduct of the presidential election was voiced.
7. The applicant alleged, and the Government did not dispute, that traffic was suspended by the traffic police on the relevant stretch of the Avenue prior to the commencement of the demonstration in order to facilitate its conduct. The applicant took part in the demonstration and the following march.
8. According to the applicant, at around 6 p.m. she went to work. After work at around 9 p.m. the applicant went home. On her way home, she was approached by three men in civilian clothes who, without presenting themselves, started dragging her to a nearby car. The applicant screamed and tried to resist. The men twisted her arms, punched her and pushed her into the car. The applicant was taken to the Central District Police Station of Yerevan (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժին), where she found out that she had been arrested for having participated in the demonstration.
9. At the Police Station, the arresting police officers drew up a record of the applicant’s arrest (արձանագրություն բերման ենթարկելու մասին) in which it was stated that the applicant had been “arrested at 7.30 p.m. at 12 Khorhurdneri Street for violating public order”. The applicant alleged that the time of her apprehension was not correctly recorded. In reality she was arrested at 9 p.m.
10. One of the arresting police officers reported to the Head of the Police Station (ՀՀ ոստիկանության Երևան քաղաքի կենտրոնական բաժնի պետ) that:
“... [the applicant] was brought to the Central Police Station for having participated on 7 April 2003 in an unauthorised march headed from the [Research Institute] to the Constitutional Court and violated public order...”
11. The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up.
12. The police officers questioned the applicant. She made a written statement (արձանագրություն բացատրություն վերցնելու մասին) in which she gave details of her participation in the demonstration and the following march. She stated, inter alia, that the street traffic was obstructed when the march headed towards the building of the Constitutional Court. She was in the front line holding the Armenian flag and screaming “justice”. The applicant alleged that this statement was made under pressure and was dictated to her by the police officers. While most of this statement was true, its part concerning the obstruction of traffic did not correspond to the reality since the traffic had been beforehand suspended by the traffic police.
13. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant had “participated in a march and violated public order”. The applicant’s actions were qualified under Article 172 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”) as minor hooliganism. This record was signed by the applicant. She also put her signature in the section certifying that she had been made aware of her rights under Article 267 of the CAO. In the section marked as “other information relevant for the determination of the case”, the applicant also added “I do not wish to have a lawyer”.
14. The applicant alleged that she was forced to sign this and other documents prepared by the police officers under threat of violence. Furthermore, they persuaded her to refuse a lawyer by insisting that a lawyer’s involvement would not help and would only be detrimental to her case. The same day at around 12 midnight she was taken to Judge M. of the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան), who examined the case.
15. The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to Judge M. at 9.30 p.m. During this period, the police officers explained to the applicant her right to have a lawyer and advised her to avail herself of this right, which she did not wish to do. The record of an administrative offence was signed by the applicant voluntarily and without any objections. Furthermore, the applicant failed to initiate any actions aimed at the defence of her rights, such as lodging motions or availing herself of other procedural rights guaranteed by Article 267 of the CAO, despite having been made aware of them.
16. The materials of the applicant’s administrative case, which were transmitted by the police to Judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant’s arrest; (4) the record of the search of the applicant; and (5) the applicant’s written statement. All these documents were signed by the applicant except the police report.
17. Judge M., after a brief hearing, sentenced the applicant under Article 172 of the CAO to an administrative fine of 1500 Armenian drams (approximately EUR 2.4 at the material time). The judge’s entire finding amounted to the following sentence:
“On 7 April 2003 between 4 p.m. and 6 p.m. ... on the Mashtots Avenue [the applicant], together with a group of people, obstructed street traffic, violated public order by making a loud noise, and incited other participants of the demonstration to do the same...”
18. According to the record of the court hearing – drawn up in a calligraphic handwriting – the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge explained the applicant’s rights to her and informed her of the possibility to challenge the judge and the clerk. The applicant did not wish to lodge any challenges. She stated that she was aware of her rights and did not wish to have a lawyer. The judge read out the motion submitted by the police, seeking to impose administrative liability on the applicant. The applicant submitted that at 4.30 p.m. she had participated in a march which had taken place in the Central District of Yerevan, during which they had obstructed the traffic and invited other people to join them. No questions were put to the applicant. Thereafter, the judge read out and examined the materials prepared by the police. Having familiarised herself with these materials, the applicant accepted that she had signed the record of an administrative offence. The judge departed to the deliberation room, after which he returned and announced the decision.
19. The applicant alleged, and the Government did not explicitly dispute, that the above record was a fake and was drafted at some point after the hearing in order to create an appearance of lawfulness. In reality there was no clerk and the hearing was not being recorded. The hearing lasted not more than five minutes and was conducted in Judge M.’s office. The applicant further alleged that, contrary to what the record stated, only the judge, the applicant and the accompanying police officer were present at the hearing. The latter did not as such participate in the hearing and his functions were limited only to bringing the applicant before the judge. The judge neither explained her rights, nor asked whether she wanted to have a lawyer. The materials of the case file were not read out and she was not allowed to make any oral submissions. No evidence was taken or examined. The judge simply prepared the above decision, solely on the basis of the materials prepared by the police, and only in the end broke the silence to threaten the applicant with imminent detention if she did not refrain from further participation in demonstrations.
20. On 8 April 2003 the applicant complained to the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) about the above-mentioned events. In particular, she submitted that she had been arrested on false accusations. The police officers had drafted a document and forced her to sign it without reading it. At about 12.30 a.m. she had been brought before a judge who had sentenced her to a fine without any examination of the case. She further submitted that she had sustained an injury to her wrist in the course of the arrest. She sought to undergo an official medical examination and to have criminal proceedings instituted against the police officers.
21. The applicant alleged that in reply she was asked to appear in two days. It appears that she did not pursue her application any further.
22. On 9 April 2003 at 12 noon another demonstration was organised in the same area by the opposition parties. The demonstration was followed by a march towards the Government building where the inauguration ceremony of the elected President was taking place. The applicant was in the front line of the march, holding the Armenian flag.
23. According to the applicant, the march was blocked at the very beginning of the Mashtots Avenue by special forces. Since the demonstrators insisted on continuing their march, the special forces started to disperse the demonstration with rubber clubs. She submits that she was ordered by a police officer to hand over the flag. She refused to do so, after which she was beaten and taken to a police car.
24. At around 2.30 p.m. the applicant was brought to the Central Police Station. The arresting police officers drew up a record of her arrest in which it was stated that she had been “arrested for having violated public order during the march of 9 April 2003”.
25. One of the arresting police officers reported to the Head of the Police Station that:
“... during the march which took place on 9 April 2003 after the demonstration next to the [Research Institute] I noticed one citizen who was violating public order: waving a flag while walking on the driveway, obstructing the regular traffic of public transport, creating an emergency situation, randomly hitting passers-by who were not taking part in the demonstration with the long flagpole, and inciting others to follow her example...”
26. The applicant was subjected to a search during which no illegal items were found. A relevant record was drawn up.
27. The police officers questioned the applicant. A statement was taken from her, although this time it was not written by the applicant herself. According to the statement, when the special forces blocked the march, the applicant who was in the frontline started to demand to pass through. They ignored her demands and ordered her to leave. The applicant started to shout and hit the people standing behind her with the flagpole so that they would pay attention and also start to demand to pass through, after which she got arrested. She also admitted in the statement that the Mashtots Avenue was blocked because of the march.
28. The police officers drew up a record of an administrative offence in which it was stated that the applicant had “made a loud noise with a group of people, and randomly insulted and hit passers-by in the Central District”. Her actions were qualified under Article 172 of the CAO as minor hooliganism.
29. All the above documents, including the record of an administrative offence, were signed by the applicant with the exception of the police report. She also put her signature in the section of the record certifying that she had been made aware of her rights under Article 267 of the CAO. In the section marked as “other information relevant for the determination of the case”, the applicant also added “I do not wish to have a lawyer in administrative proceedings”.
30. The applicant initially submitted that she had refused to sign any documents during her arrest of 9 April 2003. In a later submission, she claimed that due to the injuries and stress suffered during the apprehension she could hardly stand and was in a difficult physical and psychological condition. As a result, she signed the record of an administrative offence unconsciously and without first familiarising herself with it. Later she did not even remember that she had signed any documents. She refused a lawyer for the same reasons as on 7 April 2003. At 11 p.m. she was taken to the same Judge M. of the Kentron and Nork-Marash District Court of Yerevan, who examined the case.
31. The Government contested this allegation. According to them, the applicant was kept at the Police Station for two hours and taken to Judge M. at around 5 p.m. The circumstances of her stay at the police station were similar to the ones of 7 April 2003 (see paragraph 15 above).
32. The materials of the applicant’s administrative case, which were transmitted by the police to Judge M. for examination, contained the following documents: (1) the record of an administrative offence; (2) the police report; (3) the record of the applicant’s arrest; (4) the record of the search of the applicant; and (5) the applicant’s written statement. All these documents were signed by the applicant except the police report.
33. Judge M. sentenced the applicant under Article 172 of the CAO to five days of administrative detention. The judge’s entire finding amounted to the following:
“On 9 April 2003 between 11 a.m. and 1 p.m. in the Central District of Yerevan [the applicant], swearing loudly and hitting passers-by, obstructed street traffic and violated public order.
In deciding on the administrative penalty, [the court] takes into account as an aggravating circumstance the repetition of the anti-social behaviour of 7 April 2003, i.e. re-commission of a similar offence within one year, and the offence being committed by a group of people.”
34. This decision also indicated that the applicant had no dependants.
35. The record of this hearing is almost identical in wording to the record of the hearing of 7 April 2003 (see paragraph 18 above), with the exception that the applicant added in her submissions that she and other demonstrators had incited passers-by to participate in the demonstration. They had arguments with a few of them and there were also some swear words used, since some of the passers-by tried to mock her. She touched the passers-by with the flagpole accidentally.
36. The applicant alleged, and the Government did not explicitly dispute, that this hearing was in reality conducted in the same manner as the one of 7 April 2003. In addition, the judge asked the applicant “if you promise in writing that from now on you will not participate in demonstrations and marches any more, I will fine you and let you go home, otherwise I will detain you”. The applicant replied that she had participated and would continue to participate, because she had not violated any laws and nobody had the right to prohibit her from enjoying her constitutional rights. The judge pronounced the sentence, after which she was taken to a detention centre where she served her sentence.
37. On 15 April 2003 the applicant applied to a local human rights NGO February 22nd («Փետրվարի 22» իրավապաշտպան կազմակերպություն), complaining about the events of 7 and 9 April 2003 and seeking its assistance. She submitted, inter alia, that on 7 April 2003 the police officers had prepared some documents and forced her to sign them without even familiarising herself with them first.
38. On 18 April 2003 the NGO complained to the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) on behalf of the applicant.
39. By a letter of 12 May 2003 the Kentron and Nork-Marash District Prosecutor (Կենտրոն և Նորք-Մարաշ համայնքների դատախազ) informed the NGO that the decisions of 7 and 9 April 2003 had been well-founded and there were no grounds for appeal.
40. For a summary of the relevant domestic provisions and international documents and reports see the judgment in the case of Galstyan v. Armenia (no. 26986/03, §§ 25-32, 15 November 2007).
VIOLATED_ARTICLES: 11
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-120047
LANGUAGEISOCODE: ENG
RESPONDENT: MDA;ROU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: GUSAR v. THE REPUBLIC OF MOLDOVA AND ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mrs Ludmila Yakovlevna Gusar, is a Russian national, who was born in 1944 and lives in Slobozia, Moldova. She was represented before the Court by Mrs T. Bogoliubskaia, a lawyer practising in Moscow.
Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004VII), may be summarised as follows.
3. The applicant is the widow of Mr A. Gusar, a military official of the break-away “Moldavian Republic of Transdniestria” (the “MRT”) who was killed on 8 May 1992, during the military conflict in the MRT.
4. In a judgment of 9 December 1993 the “Supreme Court of the Moldavian Republic of Transdniestria” found the four applicants in Ilaşcu and Others (cited above) guilty, inter alia, of killing Mr A. Gusar and another high ranking MRT official and sentenced them to sentences varying between twelve years’ imprisonment and death penalty, Mr Ilascu being the one sentenced to death.
5. The subsequent events were summarised as follows in Ilascu and others:
“220. On 9 December 1993 the President of the Republic of Moldova declared that the applicants’ conviction was unlawful, on the ground that it had been pronounced by an unconstitutional court.
...
222. On 3 February 1994 the Supreme Court of the Republic of Moldova examined of its own motion the judgment of 9 December 1993 of the “Supreme Court of the MRT”, quashed it on the ground that the court which had rendered it was unconstitutional, and ordered the file to be referred to the Moldovan public prosecutor for a new investigation in accordance with Article 93 of the Code of Criminal Procedure. It appears from the written depositions, the information supplied by the Moldovan Government and the evidence given by the witnesses heard by the Court in Chişinău in March 2003, that the investigation ordered in the judgment of 3 February 1994 came to nothing (see Annex: Mr Postovan, § 184; and Mr Rusu, § 302).
223. In addition, the Supreme Court of the Republic of Moldova set aside the warrant for the applicants’ detention, ordered their release and asked the public prosecutor to look into the possibility of prosecuting the judges of the “so-called” Supreme Court of Transdniestria for deliberately rendering an illegal decision, an offence punishable under Articles 190 to 192 of the Criminal Code.
224. The authorities of the “MRT” did not respond to the judgment of 3 February 1994.
225. The Moldovan authorities had opened an investigation into the deaths of Mr Gusar and Mr Ostapenko in April and May 1992 respectively, but the public prosecution service suspended this on 6 June 1994, under Article 172 § 3 of the Moldovan Code of Criminal Procedure, in the absence of any cooperation from the Transdniestrian judicial and police authorities. The investigation was reopened on 9 September 2000. As a result, a number of requests for cooperation (the transmission of documents) were sent to the “Public Prosecutor of the MRT”, Mr V.P. Zaharov. Not receiving any reply, the Moldovan public prosecution service once again suspended the investigation on 9 December 2000. Since then it has not been reopened.
...
234. On 5 May 2001 Mr Ilaşcu was released...”
6. The other three applicants in Ilascu and others were released in 2004 and 2007.
7. On 5 December 2002 the applicant wrote to the Prosecutor General’s Office of the Republic of Moldova requesting information concerning the progress of the investigation into the circumstances of her husband’s death.
8. In a reply dated 13 January 2003 the applicant was informed that the investigation had been discontinued on 9 December 2000 in view of restrictions of access to the territory of the MRT.


ITEMID: 001-71038
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF LAMMI v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1936 and lives in Vantaa. He was the sole shareholder in a company, which was in the process of being wound up from 1987.
8. In 1987 the official receiver of the company requested the applicant to hand over to him all the assets of the company. The applicant who was in possession of shares in a housing company refused to deliver those shares.
9. The applicant instituted civil proceedings before the District Court (käräjäoikeus, tingsrätten) of Vantaa against the company and requested the court to confirm that the shares were owned by him and that he was under no obligation to hand them over. On 17 December 1987 the District Court held, however, that the shares belonged to the company and ordered him to hand them over to the official receiver. On 30 November 1988 the judgment was upheld by the Helsinki Court of Appeal (hovioikeus, hovrätten). On 5 June 1989 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
In January 1990 the applicant lodged an extraordinary appeal. In October 1992 and September 1993 he lodged further annulment applications relating to the ownership of the shares and other issues arising out of the winding up of his company. Those applications were all dismissed as ill-founded by the Supreme Court on 21 June 1993 and 23 August 1994 respectively. Furthermore, his extraordinary appeal of 30 May 1995 was dismissed by the Supreme Court on 29 June 1995.
10. Meanwhile, the official receiver requested the bailiff to seize the shares from the applicant. On 13 October 1989 an attempt to this effect failed the applicant having argued that he held the shares by way of guarantee and refused to inform the bailiff about the shares’ whereabouts.
11. On 6 November 1989 the company requested that the police investigate whether the applicant had committed an offence by refusing inter alia to provide information about the whereabouts of the shares. On 7 December 1989 and on 9 February 1990 the police unsuccessfully carried out searches of his apartment. On 27 February 1990 he was questioned. He told the police that he had lodged, in December 1989 and January 1990 respectively, applications for an annulment of the winding up order and the final decision in the ownership proceedings. He had also lodged a complaint with the Chancellor of Justice (valtioneuvoston oikeuskansleri, justitiekanslern vid statsrådet). Further, he stated that he was not going to provide any information until the resolution of those complaints. It appears that the pre-trial investigation was completed on 30 May 1990.
12. The official receiver requested that the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa order the applicant to move out of the apartment in the housing company as the shares in question belonged to the company. On 7 November 1990 it issued an order to that effect. On 5 February 1991 the Helsinki Court of Appeal rejected the applicant’s appeal.
13. On 3 September 1992 a local public prosecutor decided not to bring charges for a debtor’s fraud allegedly committed on 9 February 1987. He found that it had not been sufficiently evidenced that the applicant had knowledge of the shares’ whereabouts. The company lodged a complaint with the Chancellor of Justice, who on 12 November 1992 gave instructions that a new pre-trial investigation be carried out. The official receiver and the applicant were questioned by the police on 3 December 1992 and 9 February 1993 respectively and it appears that the pre-trial investigation was completed on the latter day.
14. On 13 January 1995 the official receiver requested that the District Court of Vantaa declare the shares null and void as their lawful owner, the company, had not received them from the applicant despite numerous attempts. On 24 April 1995 the District Court refused the company’s request since the applicant had appeared at the District Court on 13 April 1995 and produced the shares without handing them over and since, according to Finnish law, only shares which had gone missing could be declared null and void.
15. Meanwhile, on 2 February 1995 the then County Prosecutor (lääninsyyttäjä, länsåklagaren) charged the applicant with aggravated embezzlement committed on 21 June 1989 when he had become aware of the Supreme Court’s judgment of 5 June 1989. The County Prosecutor assigned the case to another local public prosecutor. On 4 October 1995 the summons was served upon the applicant.
16. The District Court held three hearings, on 23 November 1995, on 1 February 1996 and on 16 March 1996.
In its judgment of 21 March 1996 the District Court acquitted the applicant. It noted that the ownership of the shares had been finally decided by the Supreme Court’s relevant decision of 5 June 1989, that the applicant had admitted that the shares were in his possession and that he had failed to prove that he had a right to withhold them from the official receiver on the basis of a contract of guarantee, or any other document. However, the embezzlement could not be regarded as an aggravated one and, as the charges for a “normal” embezzlement should have been brought within five years of the date on which the offence had taken place, the relevant time limit had elapsed and the charges were time barred. The applicant was, however, ordered to pay 518,682.99 Finnish marks (FIM; about 87,200 euros (EUR)) in compensation for pecuniary damage, and FIM 6,000 (some EUR 1,000) in compensation for the company’s legal costs.
17. The parties appealed. On 5 December 1996, having found that the company had failed to request a court order according to which a conditional fine would have been imposed had the applicant refused to hand over the shares to the company, the Helsinki Court of Appeal (hovioikeus, hovrätten) altered the District Court’s judgment and rejected the company’s claims. The judgment was not unanimous.
18. Only the company requested leave to appeal. On 29 May 1997 the Supreme Court granted leave to appeal. The applicant lodged an extraordinary appeal against the decision, arguing that the Supreme Court Judges X and T had been disqualified from deciding the leave to appeal matter, but this was dismissed by the Supreme Court on 21 January 1998.
19. At the oral hearing in the Supreme Court on 6 February 1998, the applicant argued that the Supreme Court Judges T and P were biased as they had been involved in the decision-making concerning some extraordinary appeal proceedings in the applicant’s previous cases before the Supreme Court. The objection was dismissed by the Supreme Court as the cases referred to by the applicant had not concerned the same issues as the present proceedings.
20. In its judgment of 19 March 1998 the Supreme Court convicted the applicant of aggravated embezzlement and sentenced him to a suspended term of seven months’ imprisonment. He was also ordered to pay the company FIM 350,000 (approximately EUR 58,800) in compensation for the latter’s pecuniary damage. Having first found the official receiver competent to act on behalf of the company in the proceedings, and having rejected the applicant’s argument according to which the company’s compensation claim for pecuniary damage had been submitted after the relevant time limit had elapsed, the Supreme Court found him guilty as charged. It considered that he had failed to prove that he had any lawful right to refuse to hand the shares over to the official receiver. As the company had been prevented from selling the shares because of his resistance, it had suffered financial loss in the form of lost interest it would have earned from the sales price had the shares been sold in the summer of 1989 for the sales price of FIM 1,100,000 (some EUR 185,000) which was the estimated sales price at the relevant time.
On 30 April 1999 the Supreme Court refused the applicant’s request to re-open the criminal proceedings. Meanwhile, on 9 October 1998, he complained about the Supreme Court criminal proceedings to the Parliamentary Ombudsman. It is not known whether the complaint is still pending before the Ombudsman.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75978
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF METELITSA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1968 and is now serving his sentence in Irkutsk.
8. On 17 September 2001 the applicant was arrested on suspicion of having severely beaten a certain Mr D.
9. On 19 December 2001 the Nazarovo Town Court of the Krasnoyarsk Region found the applicant and his co-defendants guilty of grievous bodily injuries, a criminal offence under Article 111 § 3 (a) of the Russian Criminal Code. The applicant was sentenced to six years’ imprisonment in a correctional colony.
10. On 23 December 2001 and 24 January 2002 the applicant submitted his statements of appeal. He contended that his co-accused had slandered him, that the forensic report had not reflected the facts as established by the trial court and that the investigation had not been sufficiently thorough. He asked that the conviction be quashed and his lawyer, Ms Struchenko, be invited to the appeal hearing.
11. On 25 December 2001 Ms Struchenko submitted her statement of appeal. She pointed to discrepancies between the facts established by the trial court and their description in the judgment and sought re-characterisation of the criminal offence and/or reduction of the sentence.
12. On 27 December 2001 the applicant requested the appeal court to examine the case in his absence.
13. According to the applicant, neither he nor his lawyer was notified of the appeal hearing. According to the Government, on 20 February 2002 summonses for the appeal hearing were sent to Ms Struchenko’s legal office and to the detention facility where the applicant was held.
14. On 5 March 2002 the Krasnoyarsk Regional Court upheld the conviction in respect of the applicant, reduced the sentences for both of his co-accused and attributed a different legal characterisation to the offence committed by one of them. The applicant and his lawyer were not present at the appeal hearing, whereas his co-accused were both present and represented. According to the Government, the prosecutor was in attendance and made submissions to the appeal court.
15. On 30 October 2003 the applicant received a summons for the hearing before the Krasnoyarsk Regional Court that had taken place on 5 March 2002. The summons was dated 27 February 2002.
16. Article 336 of the RSFSR Code of Criminal Procedure of 27 October 1960 (the “CCrP”, in force at the material time) provided that persons who had submitted their points of appeal were to be apprised of the date and time of the appeal hearing. If a person had been notified, but failed to appear, the appeal court could hold the hearing in that person’s absence. Article 338 required that at the beginning of a hearing the presiding judge verify the attendance and the court decide whether to proceed with the hearing.
17. On 16 June 1978 the Plenary Session of the USSR Supreme Court declared that if the requirements of Article 336 of the CCrP had not been respected, the appeal hearing was to be adjourned. The examination of a criminal case in the absence of the accused or his counsel, if they had not been notified of the date and time of the appeal hearing, was considered to be a substantial breach of the law on criminal procedure. On 1 December 1983 the Plenary Session ruled that the appeal court had to verify in each case whether the parties to the proceedings had been notified of the date and time of the appeal hearing, whether their submissions had been sent to the other party and whether the other party had been given an opportunity to comment on them.
18. On 10 December 1998 the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCrP incompatible with the Constitution to the extent that it allowed appeal courts to reach a final decision on a convicted person’s appeal if the defendant was absent from the hearing and if he (she) had not been provided with an opportunity to study the materials of the hearing and communicate his (her) opinion on the issues raised before the appeal court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-112566
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LIUIZA v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1981 and lives in Rokiškis. He suffers from hebephrenic schizophrenia.
6. In 1998, the Kaunas City District Court established that the applicant had committed six thefts from apartments while in a state of criminal irresponsibility. He was relieved from serving his sentence and placed in a psychiatric hospital for “general observation” (atidavimas į psichiatrinę ligoninę bendrojo stebėjimo sąlygomis).
7. On 23 April 2004 the Vilnius City First District Court found that the applicant, who had in the meantime been released, had been involved in several more robberies. The medical experts testified in court that the applicant was suffering from hebephrenic schizophrenia and recommended that he be treated in a psychiatric hospital under general observation. On the court’s order, the applicant was placed under the above regime.
8. On 26 May 2004 the applicant ran away from the psychiatric hospital.
9. In June 2004 a pre-trial investigation was opened in respect of thefts committed earlier that month by a group of people.
10. On 15 June 2004 the applicant was apprehended and detained by the police. He presented himself under the false name of Mr Linas Jatkonis. The temporary arrest record states that “the applicant was suspected of having committed a crime enumerated in Article 178 § 2 of the Criminal Code [theft]”. The applicant signed the record without any further remarks. As it transpires from the investigator’s report of the same day, the applicant asked the authorities not to inform his relatives about his arrest.
11. On 17 June 2004 the applicant was questioned by a police investigator in connection with the thefts. The applicant was served with a “notice of suspicion” (pranešimas apie įtarimą), where multiple episodes of theft attributed to him were explained on half a page. The document listed each single allegedly stolen item, its value and owner. The time and location of the crimes were also mentioned. The applicant did not have his passport with him, maintained his false identity and did not confess to the thefts. The lawyer for the applicant, V.B., was present at the questioning. In the record of his questioning, which the applicant signed, he wrote “I understand the charges against me. I do not confess”.
12. At a hearing of 17 June 2004 at the Jonava District Court, the applicant continued to present himself as Mr Linas Jatkonis. The judge explained the applicant that he was suspected of thefts but the applicant did not confess to having committed them. The court granted the prosecutor’s request that the applicant be detained for a period of ten days, on the ground that he might evade investigation and influence witnesses. The court noted that the applicant did not have a job or source of income and that he was suspected of a rather serious crime. The applicant’s lawyer was also present at that hearing.
13. Later on, and on the basis of the applicant’s fingerprints, the authorities established that the applicant’s true name was Mr Laimutis Liuiza.
14. At a hearing on 25 June 2004 at the Jonava District Court, the applicant confessed that he had earlier lied about his true identity. At the request of a prosecutor, the court extended the applicant’s pre-trial detention by two months.
The pre-trial detention was further extended by court orders of 25 August, 24 September and 25 October 2004, where the court noted, inter alia, that the applicant was suspected of having committed “a crime of medium severity” (apysunkį nusikaltimą), had been in a possession of an unauthorised firearm and had disguised his true identity at the beginning of the criminal investigation.
15. By a ruling of 5 August 2004 the Jonava District Court, at the request of a prosecutor, ordered a forensic medical examination of the applicant. The court noted that the applicant had a history of mental illness. It was important to establish whether he could stand trial. The court also ordered the experts from the Žiegždriai Psychiatric Hospital, where the applicant had been treated a number of times, to determine “what medical measures would be appropriate” in respect of the applicant. The following day the applicant was transferred to that hospital.
16. The applicant challenged the appointment of the experts of the Žiegždriai Psychiatric Hospital to examine him. He submitted that earlier he had had conflicts with the administration of that hospital. However, on 24 August 2004 the Jonava district prosecutor dismissed the applicant’s claim that the experts of the Žiegždriai Psychiatric Hospital were biased as unfounded.
17. When questioned by an investigator on 25 August 2004 and in the presence of his lawyer V.B., the applicant partly confessed to having fraudulently used a bank card. He denied the charges of theft and unlawful possession of a firearm.
On the same day the investigator informed the applicant in writing that he was suspected of theft, fraud and unlawful possession of a firearm. The applicant signed the document (i.e. the notice of suspicion).
18. On 10 September 2004 the psychiatrists from Žiegždriai Psychiatric Hospital concluded that the applicant “was not able to understand the actions taken within the framework of the pre-trial investigation and no investigative actions could be carried out with his participation”. The doctors deemed that the applicant was thus unfit to stand trial and that it was appropriate to keep him under “strict observation in Rokiškis Psychiatric Hospital”. In report no. 354 the doctors noted that the applicant had already been treated in psychiatric hospitals on six occasions. In particular, in 1997-1998 he had been treated in Žiegždriai Psychiatric Hospital after a court had established that he had committed several thefts. Later on the applicant had been released; however, subsequent observations revealed unpredictable behaviour. The applicant’s mental state would often worsen. When not in in-patient care he would not visit the doctors or take medicine. In January 2004, and in connection with the [fresh] criminal proceedings, the applicant had been placed in Lukiškės prison hospital, where the diagnosis of hebephrenic schizophrenia had been confirmed. The psychiatrists also noted that at the time of their examination the applicant did not demonstrate a negative view of his illness or the [criminal] acts; he was often antisocial.
19. On 28 October 2004 the Jonava District Court ordered the applicant’s committal to psychiatric care under “strict observation” (stebėjimas ir gydymas griežto stebėjimo sąlygomis). The detention was ordered until the end of the criminal proceedings against him, which were expected to be terminated on account of the application of compulsory medical measures in respect of the applicant. The court relied on the conclusions of report no. 354 compiled by the medical experts.
20. On 4 November 2004 the applicant was placed in the Rokiškis Psychiatric Hospital.
21. As it transpires from the notice of suspicion provided by the Government, on 17 January 2005 the applicant was informed of and charged with theft, unlawful possession of a firearm and fraudulent use of a bank card. The facts were described in two full pages. The applicant did not sign the document; however, it bears the signature of his lawyer, V.B.
22. On 6 April 2005 another lawyer, A.V., was appointed to represent the applicant.
23. On 20 July 2005 the Jonava District Court received a written response from the Rokiškis Psychiatric Hospital to that court’s inquiry of 7 July into the applicant’s mental state. The doctors’ recommendation was that the applicant be held under strict observation, because he was a threat to others and lacked critical thinking.
24. The applicant’s psychiatric confinement under strict observation was extended – pending trial – by the Jonava District Court on 6 April 2005 and 21 September 2005. The court relied on the Rokiškis Psychiatric Hospital doctors’ opinion that the applicant could not think clearly, was aggressive and habitually wrote complaints about the doctors and law-enforcement officers. The court also noted that the applicant was charged, inter alia, with unlawful possession of a firearm, and stated that “there was no evidence that [psychiatric confinement under strict observation] should not be applied”. Officially-appointed defence counsel was present at the hearings.
25. On 16 January 2006 the applicant lodged a complaint before the Kaunas Regional Court, alleging that the experts had been biased and that report no. 354 was flawed. However, the court dismissed the complaint as unsubstantiated.
26. On 27 January 2006 the Jonava District Court found that the applicant had been in possession of an unauthorised gun, and had been involved in several episodes of theft and unauthorised payment with a bank card belonging to another person. In setting out its reasons the court relied on witness testimonies, material evidence and expert reports. Expert S.Š., one of the four experts who had signed report no. 354, testified in court that at the time the crimes were committed the applicant had been suffering from hebephrenic schizophrenia and could not understand or control his actions. She deemed it appropriate that the applicant be placed in the Rokiškis Psychiatric Hospital under strict observation. On the basis of that testimony and the conclusions of report no. 354, the court held that the applicant had committed those offences while in a state of lacking criminal responsibility and relieved him from serving his criminal sentence. In accordance with Article 98 of the Criminal Code, the court ordered that the applicant be confined in the Rokiškis Psychiatric Hospital for observation and treatment under strict conditions. The applicant was not present before the court, but was represented by officially-appointed defence counsel.
27. The applicant appealed, arguing that a new expert examination of his mental state was necessary and that the regime of strict observation was too severe a measure, given that he had been charged only in connection with crimes which were not particularly serious. The applicant also confessed to the appellate court that he had fraudulently used another person’s bank card twice, but wrote that he regretted that. He denied having committed the other criminal acts.
28. In a report of 23 February 2006 the experts from the Rokiškis Psychiatric Hospital concluded that the applicant had behavioural problems. In particular, he was egocentric, always considered himself right in every situation, and was uncritical of the criminal acts he was charged with. He was also angry, agitated and would terrorise other patients and take their pre-paid telephone cards from them. The applicant also threatened retribution against prosecutors and judges. The doctors also noted that on 12 April 2005 the applicant had attacked a nurse. The doctors recommended that the applicant be treated in a psychiatric hospital under strict observation.
29. On 16 March 2006 the Rokiškis District Court extended the applicant’s confinement until the decision of the Jonava District Court of 27 January 2006 came into force. It noted that the applicant still represented a threat to others.
The applicant appealed against that measure, requesting that the conditions of his pre-trial confinement be changed. However, his action was later dismissed as unsubstantiated by the Panevėžys Regional Court. The court noted that there were no procedural irregularities in the detention order.
30. On 6 April 2006 the Kaunas Regional Court dismissed the applicant’s appeal in respect of the criminal charges against him. The applicant’s lawyer was present at the hearing. The court held that there was no reason to request a fresh expert examination as to the applicant’s mental health. Expert report no. 354 was based on long-term observation of him, and the diagnosis of schizophrenia had already been established in 1998. In the court’s view, the expert who was questioned at the appellate court hearing also did not say anything that could cast doubt on the reliability of that report.
31. The Kaunas Regional Court also dismissed the applicant’s plea that a milder regime at a psychiatric hospital should be applied to him. Whilst acknowledging that the crimes the applicant had been charged with were not particularly grave, the court nonetheless held that it was appropriate to place the applicant under strict observation because of his aggressive behaviour, as attested by the expert, expert report no. 354 and the data provided by the Rokiškis Psychiatric Hospital. The appellate court lastly observed that the regime could always be varied, provided the applicant’s health condition and behaviour ameliorated.
32. On 14 September 2006 the Rokiškis District Court extended the applicant’s placement under strict observation. In setting out its reasons, the court relied on the report by the Rokiškis Psychiatric Hospital of 24 August 2006, to the effect that the applicant suffered from hebephrenic schizophrenia. He was still unstable and uncritical of his earlier behaviour as well as remained dangerous to others. The applicant’s lawyer was present at the hearing and did not object to the recommendation by the hospital.
33. By a ruling of 16 January 2007 the applicant’s appeal on points of law was dismissed. The Supreme Court shared the view of the appellate court to the effect that it was necessary to keep the applicant under strict observation owing to his state of mind and his behaviour; there was no doubt as to the appropriateness of that regime. The Supreme Court also observed that, in accordance with Article 98 § 6 of the Criminal Code, a court should assess the appropriateness of the compulsory medical measures every six months (see “Relevant domestic law” below). Moreover, pursuant to Article 405 of the Code of Criminal Procedure, it was the court of a person’s place of residence which decided such questions. It followed that the Supreme Court did not have jurisdiction to change the applicant’s hospitalisation regime.
The applicant’s lawyer took part in the hearing.
34. On 26 March 2007 the Rokiškis District Court extended the applicant’s in-patient treatment under strict observation. It relied on the report by the doctors of the Rokiškis Psychiatric Hospital of 1 March 2007. The report read that the applicant suffered from hebephrenic schizophrenia, his behaviour was unpredictable and unstable. The applicant was constantly threatening to hang himself or to kill himself with a knife. The applicant’s lawyer took part in the hearing and did not oppose the measure.
35. On 19 September 2007 the Rokiškis District Court again extended the applicant’s in-patient treatment under strict observation. The court based its decision on a psychiatrists’ report dated 30 August 2007 attesting to the destructive behaviour of the applicant. His lawyer was present at the hearing and requested that a milder regime, “increased observation” (sustiprinto stebėjimo sąlygos), be applied to his client.
The applicant was present when his appeal was examined and dismissed as unfounded by a higher court.
36. On the basis of a ruling of 31 March 2008 by the Rokiškis District Court, the applicant was placed under the increased observation regime. The court relied on a psychiatrists’ report dated 28 February 2008, which stated that the applicant’s mental health had improved to a certain extent.
37. By a ruling of 1 October 2008, the Rokiškis District Court granted a request by the Rokiškis Psychiatric Hospital that a milder measure, the “general observation” regime (bendro stebėjimo sąlygos), be applied to the applicant. The court noted the psychiatrists’ conclusion to the effect that the applicant’s mental state had improved, that he had started planning his future, and was critical of the criminal acts he had committed.
38. On 18 May 2009 the Rokiškis District Court changed the applicant’s hospitalisation regime to one of “increased observation”. The court relied on a doctors’ report that the applicant was argumentative and behaved aggressively towards other patients. Furthermore, the stricter regime was justified because of four incidents that had taken place in the reference period. In particular, since 18 November 2008 the applicant had attempted to regurgitate his prescribed medicine, threatened another patient with physical violence, pushed another patient out of the smoking room and grabbed yet another patient by the throat in the canteen. According to the doctors’ report, there was a tendency for the applicant’s violent behaviour to increase.
39. On 19 June 2010 the Rokiškis District Court extended the applicant’s detention under increased observation, on the basis of a doctors’ report of 13 May 2010 according to which the applicant continued to show aggression towards others. That ruling was upheld by a higher court.
40. The Criminal Code, insofar as relevant to this case, provides as follows:
“1. A person shall be considered legally incapacitated where, at the time of commission of an act forbidden under this Code, he was unable to understand the dangerous nature of the act or to control his behaviour as a result of a mental disorder.
2. A person found legally incapacitated by a court shall not be held liable under this Code for having committed a dangerous act. The court may order that compulsory medical treatment as provided for in Article 98 of this Code be applied.”
“1. Persons who are recognised by a court as being legally incapacitated or of diminished capacity as well as persons who, after committing a criminal act or having received a penalty, develop a mental disorder rendering them incapable of understanding the nature of their actions or controlling them may be subject to a court order for the following compulsory medical treatment measures to be applied:
1) out-patient observation under the conditions of primary mental health care;
2) in-patient treatment under general observation at a specialised mental health care establishment;
3) in-patient treatment under increased observation at a specialised mental health care establishment;
4) in-patient treatment under strict observation at a specialised mental health care establishment.
2. A court shall order out-patient observation where it is not necessary to subject the person in question to observation and in-patient treatment due to the dangerousness of the committed act and his mental state, or where the person may continue out-patient treatment after his mental state improves following in-patient treatment.
3. A court shall order in-patient treatment under general observation where a person needs to be under observation and undergo treatment at a specialised in-patient treatment establishment due to a mental disorder.
4. A court shall order in-patient treatment under increased observation at a specialist establishment where a person has committed a dangerous act and has a mental disorder warranting such a measure.
5. A court shall order in-patient treatment under strict observation at a specialist establishment where a person has made an attempt on a person’s life or health and is particularly dangerous to those around him due to a mental disorder.
6. A court shall not set any period of time for compulsory medical treatment. It shall be applied until the person is cured or his mental state improves and he no longer poses a threat to others. At least once every six months, a court must decide, on the basis of a report by a health-care establishment, on the extension of compulsory medical treatment, change of type thereof or discontinuation thereof.
7. Where it is not necessary to subject a person to compulsory medical treatment, or where a court orders that such treatment be discontinued, the person may be transferred by the court into the custody or guardianship of his relatives or other persons and may concurrently be subject to medical observation.”
41. The Code of Criminal Procedure provides:
“1. Where during the investigation or hearing of a criminal case there is a need for a medical or psychiatric expert examination of a suspect, he or she shall be committed by a court decision to the examining institution before a medical report is submitted to a prosecutor or the court. The time spent at the institution shall be included in the detention term.
2. If a psychiatric expert establishes that the suspect, because of his or her mental disorder, may be dangerous to the public, the court may order extension of his or her stay at the examining institution or the suspect may be transferred to another institution until the court decides upon the issue of employing coercive medical measures.
3. A suspect shall be committed to an examining institution and his period of stay at the institution shall be determined and extended following the same procedure for ordering, extending or appealing against detention.
4. During the pre-trial investigation the detained suspect shall be committed to an examining institution by the decision of a prosecutor.
5. An accused may also be committed to an examining institution.”
42. In accordance with Article 405 of the Code of Criminal Procedure, the court shall at least once every six months determine the issue regarding the extension of the maximum period of application of the compulsory medical treatment measure, changing the type of measure or discontinuing its application. A representative of the medical institution that submitted a report about the appropriateness of one or another measure must take part in the hearing. The court may also request that the hospitalised person be present at the hearing, unless his mental state does not allow for it.
43. Article 7 of the Law on Mental Health Care provides that hospitalised patients have a right to communicate with others.
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-97642
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: COSLET v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The applicant, Mr Petru Coşleţ, is a Moldovan national who was born in 1962 and lives in Chişinău. The Moldovan Government (“the Government”) are represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 July 2006 the applicant, a farmer, requested the Chişinău Municipal Council (“the Council”) to confirm his ownership of a plot of land. The council refused his request.
The applicant instituted court proceedings against the Council, seeking an order obliging them to recognise his ownership of the disputed plot of land.
On 15 December 2006 the Chişinău Court of Appeal held in the applicant's favour.
On 30 May 2007 the Supreme Court of Justice upheld the first-instance court's judgment. That judgment was final.
On 26 February 2008 the Municipal Council adopted a decision recognising the applicant's ownership of the above-mentioned plot of land.
On 31 March 2008 the Municipal Council concluded a contract of sale with the applicant in respect of the plot of land.
The applicant did not inform the Court about the enforcement of the judgment in his favour and it was only from the Government's observations that the Court learned of it.