Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in 1979 and lives in Pyatigorsk, the Stavropol Region.

On 29 September 2002 a certain Ms Sh. was murdered. On the next day the police initiated criminal proceedings in that connection.

On the same day a certain Mr M., who had been arrested for the administrative offence of public drunkenness, complained to the police that the day before the applicant had allegedly sworn at him and attempted to start a fight.

On 2 October 2002 an administrative offence record was drawn up in respect of the applicant by police officers K. and B. The applicant denied Mr M.’s allegations.

On 3 October 2002 he was found guilty of disorderly conduct and sentenced to five days’ administrative detention by the Justice of the Peace of the 1st Circuit of the Kirovskiy District of the Stavropol Region.

On 3 October 2002, pursuant to the aforementioned judgment of the same date, the applicant was placed in the temporary holding facility of the Kirovskiy District Police Department of the Stavropol Region (“the district police department”).

According to the applicant, between 3 and 6 October 2002 police officers forced him to confess to the murder of Ms Sh. by beating him up and threatening him with rape with a rubber truncheon.

On 6 October 2002 the applicant signed a confession to the murder of Ms Sh. He stated, in particular, that he had strangled her with a TV power cable.

On 7 October 2002 the investigator in charge recorded the applicant’s arrest on suspicion of murder.

The investigator also ordered a forensic medical examination of the applicant, which was carried out on 7 October 2002 by a medical expert with ten years’ experience, who certified that he had no injures (certificate no. 181).

On 8 October 2002 the Kirovskiy District Court of the Stavropol Region (“the District Court”) ordered the applicant’s placement in custody as a preventive measure, stating that he was suspected of having committed a particularly serious criminal offence, might abscond from justice and had been given negative character references at the place of his residence. The applicant was then transferred to the remand centre “SIZO-26/2” of Pyatigorsk.

On 9 October 2002 the applicant was formally charged with murder.

On 6 December 2002 the District Court extended the term of the applicant’s pre-trial detention until 7 January 2003. The applicant’s counsel argued that there were no grounds to believe that the applicant might abscond, that he had a permanent place of residence and permanent work and had confessed to the crime. The fact that he was accused of a serious criminal offence could not, as such, be the basis for his continued pre-trial detention. The court decision read as follows:

“Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the preventive measure [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime associated with a high risk to society, which does not exclude the possibility of him absconding from the investigating bodies and the court, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...”

The applicant did not appeal against that decision.

On 27 December 2002 the applicant requested the investigator to exclude his self-incriminating statements of 6 October 2002 from the body of evidence, alleging that he had confessed to the murder under physical and psychological pressure by the police officers during his administrative detention. The applicant alleged that every night they had taken him out of his cell to their office and had psychologically pressurised him to confess.

On 30 December 2002 the District Court examined the investigator’s application for the extension of the applicant’s detention. The applicant stated that he had no intention of absconding or influencing witnesses and asked to be released. The court extended the term of his pre-trial detention until 7 February 2003 for the following reasons:

“Bearing in mind that it is impossible to complete the pre-trial investigation within two months ... there are no grounds to change or quash the measure of restraint [with regard to the applicant], considering that [the applicant] is charged with a particularly serious crime, and might impede a thorough, comprehensive and objective investigation or abscond from the investigating bodies, the judge finds it necessary to grant the investigator’s request for the extension of the term of detention ...”

It does not appear that the applicant appealed against this decision.

On 31 January 2003 the applicant was served with a copy of the bill of indictment for the murder.

On 6 February 2003 the case was sent to the District Court for trial.

Upon receipt of the case file, on 6 February 2003 the District Court scheduled a preliminary hearing for 17 February 2003. It also ordered that the preventive measure of detention should remain unchanged. It does not appear that the applicant appealed against this decision.

On 19 May 2003 the District Court found the applicant guilty of murder and sentenced him to nine years’ imprisonment. It relied, in particular, on his self-incriminating statements. It took into account statements by the police officers, who denied ill-treating the applicant, and the medical expert report, according to which the applicant’s examination on 7 October 2002 had not revealed any injuries on him, and dismissed the applicant’s allegations of ill-treatment as unsubstantiated.

On 20 July 2003 the applicant’s counsel obtained written statements from a certain Mr I. Sh. who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department from 3 to 5 October 2002. He stated that the applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him up and that they had threatened him with rape with a rubber truncheon.

On 31 July 2003 the Regional Court examined the applicant’s appeal against his conviction. It found that the evidence on which the judgment was based contained a number of discrepancies which had not been resolved by the trial court and that the failure to summon witnesses for the applicant properly had undermined the adversarial nature of the trial. It also held that the applicant’s allegations that his self-incriminating statements had been obtained under duress had not been thoroughly examined; that the police officers’ statements did not constitute sufficient evidence of their proper conduct; and that the applicant’s counsel’s complaint to the prosecutor’s office of the Kirovskiy District (“the district prosecutor’s office”) about the unlawful acts of the police had been left unanswered and no inquiry in that connection had been conducted. The Regional Court thus quashed the judgment and remitted the case for a fresh examination by the first-instance court. It also ordered that the applicant remain in custody.

On 11 August 2003 the case file arrived at the District Court.

On 12 August 2003 the District Court extended the term of the applicant’s detention until 6 November 2003, stating that the applicant was charged with a particularly serious criminal offence and that, if released, he might impede the criminal proceedings or evade trial. It also noted that the case had been before the courts for more than six months; that the initial term of the applicant’s detention established in Article 255 § 2 of the Russian Code of Criminal Procedure had expired and that it should be extended for the next three months. The applicant, who was neither present nor represented at the hearing, did not appeal against this decision.

On 12 September 2003 the applicant’s lawyer obtained further written statements from Mr I. Sh., who stated that he had been detained in the same cell as the applicant in the temporary holding facility of the district police department in October 2002. The applicant had been taken out of his cell in the night. After his return the applicant had told him that the police officers had beaten him in the area of the kidneys and liver. Mr I. Sh. further stated that he had seen fresh scratches on the applicant’s left shoulder and elbow and that the applicant’s lower lip had been hurt.

On 6 November 2003 the District Court rejected the applicant’s request for release under an undertaking not to leave a specified place and, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, extended his detention for three months until 6 February 2004 on the same grounds as those given in its decision of 12 August 2003. The applicant’s lawyers referred to the length of detention, the applicant’s innocence and the deterioration of his health. The applicant appealed against the decision, arguing, in particular, that it was insufficiently reasoned.

On 10 December 2003 the Regional Court quashed the decision of 6 November 2003, referring to the absence of a transcript of that hearing in the materials of the case, and remitted the matter to the same court for a fresh examination.

On 8 January 2004 the District Court ordered, under Article 255 § 3 of the Russian Code of Criminal Procedure, that the term of the applicant’s detention be extended until 6 February 2004. It relied on the same reasons as those which were set out in the decision of 12 August 2003. The applicant’s lawyers referred to the absence of reasons for the applicant’s continued detention, in particular the lack of grounds for the risk of him absconding, his permanent place of residence and work, positive references and the length of his detention. The court stated that at that stage it could not take into account the argument concerning the applicant’s innocence. It did not address any other arguments put forward by the applicant’s lawyers. The applicant did not appeal against that decision.

On 5 February 2004 the District Court again examined the question of the preventive measure applied to the applicant. The applicant asked to be released, referring to the deterioration of his health and stomach complaints. His lawyers referred to the excessive length of his detention, the absence of reasons to believe that he might abscond or otherwise impede the proceedings and the fact that he had received positive character references. The court dismissed their request for release and extended, on the basis of Article 255 § 3 of the Russian Code of Criminal Procedure, the applicant’s detention for a further three months, until 6 May 2004, for reasons identical to those cited in its previous decisions. It did not address the applicant’s lawyers’ arguments. It does not appear that the applicant appealed against that decision.

On 22 March 2004 the applicant’s father’s flat was searched. The applicant’s father’s complaints about the unlawfulness of the search were dismissed by the district prosecutor’s office on 13 April 2004 and by the District Court on 14 May 2004.

On 26 April 2004 the District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment. It examined, in particular, witness I. Sh. (see paragraphs 24 and 28 above) who stated before the court that the applicant had not complained about any ill-treatment by the police officers and that he had not seen any injures on the applicant. According to Mr I. Sh., his previous statements to the contrary had been false and had been given at the request of the applicant’s parents and defence counsel in order to help the applicant. Two other witnesses, Mr R. and Mr S., who had also been held in the applicant’s cell at some point in October 2002, also stated that they had neither heard from the applicant about any pressure by the police nor seen any injures on him.

On appeal, on 3 August 2004 the Regional Court found that the trial court had failed to assess the arguments put forward by the defence properly and that the applicant’s right to defend himself had been violated. It quashed the judgment of 26 April 2004 and remitted the case to the District Court for a fresh examination. The Regional Court also ordered that the applicant’s detention on remand as a preventive measure remain unchanged.

On 18 August 2004 the case file arrived at the District Court.

On 23 August 2004 the District Court scheduled a preliminary hearing in the case for 1 September 2004. It also ordered that the preventive measure applied to the applicant in the form of detention on remand remain unchanged. It does not appear that the applicant appealed against that decision.

On 1 September 2004 the District Court extended, with reference to Article 255 § 3 of the Russian Code of Criminal Procedure, the term of the applicant’s detention for three months, to be calculated from 13 August 2004 until 13 November 2004. The court noted that the term of the applicant’s detention, as previously extended on 5 February 2004 (see paragraph 32 above), had expired on 13 August 2004, and that it had received the case file from the Regional Court only on 18 August 2004. The applicant requested the court to release him, referring to the deterioration of his state of health and his stomach ulcer. The court held as follows:

“... the accused ...... established in detail ... in the course of the trial, the evidence which could have determined [his] guilt [or innocence] was not examined ...

The positive character references of the accused ... do not constitute sufficient grounds to release him ... because, if released, he might abscond ... and hinder the establishment of the truth in the case.

The court cannot take into account ... the claim that the accused is ill and needs medical treatment as he has not submitted any relevant documents.

The court has not established any procedural violations in respect of his detention on remand.”

The applicant and his counsel appealed against the decision of 1 September 2004, arguing that the previously authorised term of the applicant’s detention had expired on 13 August 2004 and had not been extended by the court. According to them, the applicant had therefore been detained unlawfully for 18 days from 13 August to 1 September 2004.

On 17 September 2004 the Regional Court upheld the decision of 1 September 2004 on appeal. It stated that the fact that the applicant was accused of a particularly serious criminal offence had rightly been taken into account by the first-instance court; that the applicant’s state of health did not preclude his being kept in custody and that there had, therefore, been sufficient reasons for extending his detention.

On 1 November 2004 and 26 January 2005 the District Court further extended the term of the applicant’s detention on remand until 13 February and 13 May 2005 respectively. In its similar decisions the court relied on the same reasons to justify the applicant’s continued detention as those set out in the decision of 1 September 2004. The applicant did not appeal against either of those two decisions.

On 25 April 2005 the District Court convicted the applicant of murder and sentenced him to nine years’ imprisonment. During the hearing witness I. Sh. (see paragraphs 24, 28 and 34 above) stated that the applicant had sometimes been taken out of his cell for interrogation after 10 p.m., that he had seen a scratch on the applicant’s lip and that the applicant had told him that he had been beaten up. According to Mr I. Sh., he did not remember whether there had been other injuries on the applicant. Mr I. Sh. also stated that he had lived at the applicant’s parents’ home for several days and had done some work for them and that the applicant’s family had supported him when he had been detained in the context of another criminal case.

On 22 September 2005 the Regional Court quashed the judgment and remitted the case to the District Court for a fresh examination. It found, in particular, that the first-instance judgment was based on conflicting evidence. It also held that the preventive measure should remain in place as there were no grounds to release the applicant.

On 11 October 2005 the case file arrived at the District Court.

On 26 October 2005 the District Court held a preliminary hearing in the case for the purpose of taking a decision on the preventive measure to be applied in respect of the applicant. The applicant requested the court to replace his detention with any preventive measure other than deprivation of liberty. His counsel requested that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour, since the applicant had been held in custody for more than three years, had positive character references and did not intend to evade the trial. The prosecutor asked for the preventive measure to remain the same.

The District Court noted that the applicant’s criminal case had been pending before the court since 6 February 2003, and that from that date onwards his detention had been regulated by Article 255 § 3 of the Russian Code of Criminal Procedure, which allowed it to be extended beyond the initial six-month period for further periods of three months. It further noted that the term of the applicant’s detention had been extended on numerous occasions, and that the last time, on 26 January 2005, the District Court had authorised his detention until 13 May 2005. It also noted that before the expiry of that period, on 25 April 2005, the applicant had been convicted by the trial court. The court then noted that the term of the applicant’s detention, as extended on 26 January 2005, should be considered as having run out on 9 October 2005, provided that the period between 25 April 2005, the date of the conviction, and 22 September 2005, the date of its quashing on appeal, was excluded from the term of detention on remand, in accordance with paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004. The court thus held that the term of the applicant’s detention had not been extended in accordance with a procedure prescribed by law and that therefore, despite the seriousness of the charge against him, there were no legal grounds for his further detention on remand. It ordered that the preventive measure be changed to an undertaking not to leave a specified place and an undertaking of good behaviour and that the applicant be released immediately.

On 3 November 2005 the prosecutor appealed against that decision, arguing that the District Court had erred in its interpretation of paragraph 26 of resolution no. 1 of the Supreme Court of Russia dated 5 March 2004, since it followed from the meaning of Article 255 of the Russian Code of Criminal Procedure that the term of detention should run from the day of a criminal case’s arrival at a first-instance court and not from the day of delivery of an appellate court’s decision. Therefore, in the prosecutor’s opinion, the term of the applicant’s detention should have run out on 29 October 2005. The applicant disagreed, pointing out the fact that he was employed, that he did not intend to evade justice and that he simply wanted the trial to be concluded as soon as possible and his good name restored.

On 30 November 2005 the Regional Court found that the District Court had violated Article 255 § 3 of the Russian Code of Criminal Procedure, as the term of detention of a person who had committed a serious or particularly serious criminal offence had to be extended by a court decision each time, and such extension could not be authorised for a period longer than three months at any one time. It went on to agree with the prosecutor’s submissions and stated that the term of the applicant’s detention should have started running on 11 October 2005, the date when the case file had been received by the District Court, and that therefore it should be regarded as having expired on 29 October 2005. The court then held that this procedural breach was grounds for the annulment of the decision of 26 October 2005, and ordered that the case be sent to the District Court for a new examination. According to the applicant, he attended the hearing of 30 November 2005 and was placed in detention immediately after that hearing.

On 21 December 2005 the District Court ordered the applicant’s release on an undertaking not to leave his place of residence. It stated that the applicant had been held in detention on remand for more than three years, that after his release on 26 October 2005 he had immediately started working and that he had been given positive character references from his employers. The court held that there were no reasons to believe that he would evade the trial or put pressure on witnesses and thus obstruct the establishment of the truth, and therefore there were no grounds to keep him in detention. The applicant was released immediately.

On 2 May 2006 the District Court examined the criminal case against the applicant for the fourth time. At the hearing, the applicant insisted that he was innocent and reiterated that he had made his confession at the pre-trial stage because he had been beaten and threatened by the police.

The District Court observed that the charge against the applicant had mainly been based on his self-incriminating statements and written confession made during the preliminary investigation, which he had later repudiated as having been made under duress. It further noted, as regards the applicant’s medical examination on 7 October 2002, which had not revealed any injuries on him, that the applicant had not been apprised of the investigator’s order to carry out that examination until it had been over. Therefore, in the District Court’s opinion, a note on the resulting expert report to the effect that the applicant had had no comments or questions for the expert, and had not wished to call into question the expert’s authority, was devoid of any legal meaning.

The court further stated that on 6 February 2006 the decision of 27 January 2003, by which the district prosecutor’s office refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment during his administrative detention in October 2002, had been quashed, and that on 15 February 2006 the district prosecutor’s office had again refused to institute criminal proceedings owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. In the District Court’s opinion, however, the applicant’s allegation that he had made self-incriminating statements and had signed his confession as a result of coercion by the police was corroborated by the evidence in the case.

In particular, the court examined the register of detainees of the temporary holding facility where the applicant had been held and noted that the applicant had been taken out of his cell on 3 October 2002, from 7.30 p.m. to 8.30 p.m., and on 4 October 2002 from 6.25 p.m. to 6.50 p.m. and from 9.40 p.m. to 9.55 p.m. The court further observed that, according to the applicant’s written confession, it had been given on 6 October 2002 in office no. 36 of the temporary holding facility and not in his cell. However, the register did not contain any records confirming that he had been taken out of his cell on that day. Therefore, the District Court doubted the reliability of the official records. It found that the applicant’s confession could not be regarded as having been given voluntarily and was therefore inadmissible as evidence.

The District Court also noted that, when the applicant had been interviewed as a suspect on 7 and 9 October 2002, he had not been warned that his statements could be used as evidence, in breach of the domestic law. Having examined the body of evidence in the case, the District Court further stated that it had been contradictory in a number of aspects. In particular, a report on the medical forensic examination of Ms Sh.’s body had attested to the presence of numerous internal injuries. The investigating authorities, however, had never attempted to establish the circumstances in which the victim had sustained those injuries, and the applicant had never admitted inflicting any such injuries on the victim, simply having confessed to having strangled her (see paragraph 12 above). In this respect the District Court noted that, as was clear from the materials of the case, at the time when the applicant had made his self-incriminating statements and signed his confession, the aforementioned expert examination had not yet been carried out and the investigating authorities had not known of the existence of those injuries.

The court further listed a number of other shortcomings in the preliminary investigation and discrepancies in the adduced evidence. It found it unproven that the applicant had committed the imputed offence. The court thus acquitted the applicant and acknowledged his right to rehabilitation.

On 4 July 2006 the Regional Court upheld the judgment on appeal. It agreed with the trial court’s finding that the confession had been signed as a result of coercion by the police officers. The court noted in this respect that the very fact that the applicant had been taken out of his cell in breach of relevant regulations had been the proof of coercion, and therefore the arguments of the prosecuting party in the appeal submissions to the effect that the trial court had failed in its judgment to specify the methods of that coercion and to identify those responsible were unfounded. It also agreed with the trial court that the applicant’s self-incriminating statements, which he had later repudiated, had contradicted the other evidence in the case.

On 24 January 2003 the applicant’s counsel lodged a complaint with the district prosecutor’s office about the applicant’s ill-treatment by the police officers from the district police department. An inquiry was carried out in connection with that complaint. Several police officers were questioned. They all denied the applicant’s allegations of ill-treatment.

On 27 January 2003 the district prosecutor’s office decided, relying on their statements and medical expert certificate no. 181 of 7 October 2002, to dispense with criminal proceedings in respect of the applicant’s allegations of ill-treatment owing to the absence of evidence that any crime had been committed. The applicant did not appeal against the decision in court.

On 4 December 2003 the district prosecutor’s office received a complaint from the applicant’s mother about alleged ill-treatment of the applicant by the officers of the district police department.

On 5 December 2003 a decision not to prosecute the police officers was taken. The Court has not been furnished with a copy of that decision. It does not appear that the applicant attempted to challenge the decision in question before a court.

On 11 August 2005 the district prosecutor’s office quashed the decision of 5 December 2003 and ordered an additional inquiry.

During that inquiry Mr A., the head of the investigation department, responsible for the investigation of Ms Sh.’s murder at the time of the events in question, and Mr Z., deputy head of the temporary holding facility of the district police department at the material time, were interviewed. They stated that no physical or psychological pressure had ever been exercised on the applicant and that the applicant had voluntarily confessed to the murder and later confirmed his self-incriminating statements during an interview in the presence of his lawyer.

On 18 August 2005 the district prosecutor’s office, with reference to the aforementioned statements of Mr A. and Mr Z., decided not to institute criminal proceedings in connection with the applicant’s allegations owing to the absence of the constituent elements of a criminal offence in the police officers’ actions. The applicant did not appeal against that decision in court.

On 6 February 2006 the prosecutor’s office of the Stavropol Region quashed the decisions of 27 January 2003 and 18 August 2005 as unlawful and unfounded in view of the investigating authorities’ failure to establish all the relevant facts. In particular, it pointed out that the applicant had not been questioned; that the materials of the inquiry lacked an extract from the official records of requests for medical aid in the period from 3 to 6 October 2002; that the register of detainees of the temporary holding facility, where the applicant had been held during the relevant period, had not been examined with a view to establishing when and by whom the applicant had been taken out of his cell(s) for interrogation and to identifying who had been in the cell(s) with him so that they could be questioned in respect of his allegations; that a police officer who had been present when the applicant had signed his confession had not been questioned in that connection; that another police officer who had drawn up the administrative offence record in respect of the applicant had not been questioned in that connection; and that Mr R. and Mr S., who had allegedly shared a cell with the applicant, had not been interviewed either. The district prosecutor’s office was thus ordered to eliminate those defects in the course of an additional inquiry.

In a decision of 15 February 2006 the district prosecutor’s office again refused to institute criminal proceedings against the police officers owing to the absence of the constituent elements of a crime in their actions.

According to the decision, when interviewed during an additional inquiry, the applicant had stated that on 2 October 2002 he had been taken from his home to a police station where he had met police officers G. and B. The latter had drawn up, on Mr G.’s instructions, an administrative offence record which stated that that the applicant had used obscene language in public. The applicant had been held at the police station from 4 p.m. to 10 p.m. and then transported to the district police department. On 3 October 2002 he had been placed under administrative arrest for five days and placed in the temporary holding facility of the district police department. Each night the officers of the Kirovskiy district police department, Mr A. and Mr G., had taken him to an office on the third floor in which they had subjected him to psychological pressure. On 6 October 2002, because of that pressure, he had been compelled to make a written confession to the murder of Ms Sh., which had been dictated to him by Mr G.

The decision went on to quote police officer A., who had stated that he had been present when his subordinates, Mr P. and Mr G., had interviewed the applicant. No physical or other form of coercion had been used on the applicant, who had voluntarily confessed to the murder and then confirmed his statements in the presence of his counsel.

Mr Z., deputy head of the temporary holding facility of the district police department at the material time, had stated that no force had ever been applied to the applicant, who had made no complaints during his detention in that facility. Mr Z. also stated that the applicant, Mr R. and Mr S. had never been held in the same cell at the same time.

Mr G. had stated that on 6 October 2002 he had been told that the applicant wished to see him. He had met the applicant at the temporary holding facility. The applicant had told him that he had killed Ms Sh. and had voluntarily written out his confession.

Mr B. had stated that on 2 October 2002 Mr M. had complained to him that the applicant had sworn at him. He had drawn up an administrative offence record and sent it to the court.

Mr R., who had been detained in the temporary holding facility from 1 to 6 October 2002 for committing an administrative offence, had confirmed that he had shared a cell with the applicant and stated that the applicant had not made any complaints concerning the police officers who had questioned him. Mr S., another detainee during the relevant period, had also been interviewed but had not given any relevant information regarding the applicant’s allegations.

The decision then indicated that, according to the temporary holding facility records concerning medical aid, the applicant had never applied for medical assistance. Nor had he made any complaints concerning his health.

The decision further stated that, according to the temporary holding facility register of detainees, the applicant had been taken out of his cell on 4 October 2002 at 6.45 p.m. by Mr G. and brought back at 6.50 p.m.; on the same day he had been taken away at 9.40 p.m. by Mr P. and brought back at 9.55 p.m. On 7 October 2002 the applicant had been taken out of his cell from 9 a.m. until 6.15 p.m. for the examination of his statements on the scene of the crime. For the rest of the time the applicant had stayed in his cell.

The decision thus concluded that during the inquiry the applicant’s allegations of ill-treatment had proved unfounded. The applicant did not appeal against that decision in court.

Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”).

“Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear in court (Article 112).

The Code makes a distinction between two types of custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage.

A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The maximum length of detention pending investigation is two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4).

From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).

In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16).

It also stated that, within the meaning of Article 255 § 2 of the Code, the period after conviction by the first-instance court until such conviction became final, being upheld on appeal, could not be taken into account for the purpose of calculating the six-month period of an individual’s detention pending trial (paragraph 26).


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Joachim Berger, is a German national who was born in 1956 and lives in Singen. He is represented before the Court by Mr O. Berg, a lawyer practising in Strasbourg. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

In March 1996 the applicant was first questioned by the police on suspicion of three counts of abetting economic subsidy fraud. The indictment was issued on 15 September 1999.

On 16 May 2002 the Mühlhausen Regional Court opened the main proceedings.

On 6 June 2005 the Mühlhausen Regional Court informed the applicant that it intended to terminate the proceedings in accordance with Article 206a of the Code of Criminal Procedure as it considered that the length of proceedings precluded their continuation (see “Relevant domestic law” below).

On 12 June 2005 the applicant gave his consent to that discontinuation.

On 16 June 2005 the prosecutor’s office submitted that it would contest such termination of the proceedings. However, it suggested discontinuing the proceedings in accordance with Article 153 of the Code of Criminal Procedure (see “Relevant domestic law” below).

On 23 June 2005 the Regional Court discontinued the proceedings in accordance with Article 153 of the Code of Criminal Procedure after the applicant’s lawyer had agreed to the proposed termination of the proceedings on the same day.

On the same day the sitting judge of the Regional Court instructed the court’s registry to formally serve the discontinuation order on the applicant’s defence counsel and to informally transmit a copy of that decision to the applicant together with other documents, such as the submissions of the Public Prosecutor’s Office of 16 June 2005.

On 24 June 2005 the applicant’s defence counsel acknowledged receipt of the court’s decision of 23 June 2005.

On an unspecified date the applicant received the Regional Court’s letter of 23 June 2005; however, it is disputed between the parties whether that letter contained the court’s decision to discontinue the proceedings.

Between 24 June 2005 and 27 July 2005 the applicant addressed further letters to the Regional Court requesting the court to comply with its obligation to proceed speedily.

On 12 November 2007 the Court requested that the applicant provide information as to whether the proceedings had been discontinued in the meantime.

On 26 November 2007 the applicant replied that he had not received any information about the discontinuation of the proceedings and that he did not know whether a discontinuation was imminent or intended.

Therefore, on 22 January 2008 the Court decided to communicate the application to the respondent Government concerning the length of the proceedings.

Under Article 206a of the Code of Criminal Procedure, the court may terminate the proceedings by an order made outside the main hearing should a procedural impediment arise after the main proceedings have started. Thus the length of proceedings may preclude their continuation if, in exceptional circumstances, redress for the length of proceedings cannot be granted in a decision on the merits.

Article 153 of the Code of Criminal Procedure governs the discontinuation of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence that does not carry a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt is of a minor nature and if there is no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor (Article 153 § 1). If the indictment has already been preferred with the court the latter may discontinue the proceedings at any stage under the conditions set out in Article 153 § 1 with the consent of both the public prosecutor’s office and the defendant (Article 153 § 2).


The applicants are Austrian citizens and own a farm at Niederthalheim, Upper Austria.

Agricultural land-consolidation proceedings (Zusammenlegungs-verfahren) under the Upper Austria Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see paragraph 20 below) were instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde - "the District Authority") in 1972. They concerned 153 landowners and covered some 606ha. The valuation (Bewertungsplan - see paragraph 23 below) was adopted in December 1978 without opposition from the interested parties. On 7 October 1980 the District Authority ordered the provisional transfer of the compensatory parcels (Grundabfindungen) on the basis of a draft consolidation scheme (Neueinteilungsplan - see paragraph 25 below). An appeal lodged by the applicants against this order was rejected by the Upper Austria Land Reform Board (Landesagrarsenat - "the Upper Austria Board") on 24 April 1981.

The consolidation scheme (Zusammenlegungsplan - see paragraph 26 below) was published in October 1983 and, in its essence, confirmed the situation created by the provisional transfer order.

On 24 May 1984, following an appeal from the applicants, the Upper Austria Board held that the parcels allotted to the applicants were of approximately the same value as the old ones. The Board pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants, according to which the yield of their compensatory parcels was below that of the applicants’ former property. On the contrary, it held that, on the whole, the agricultural performances under the new situation were at least as good as under the old one and dismissed the bulk of the applicants’ arguments. However, with reference to a plot measuring 2.2ha (plot no. 4738), the Board held that while not illegal its configuration could be rendered more functional (zweckmäßiger). It therefore quashed the part of the consolidation scheme concerning that plot and ordered that the District Authority re-examine the issue. The applicants appealed against this decision.

On 3 April 1985 the Supreme Land Reform Board (Oberster Agrarsenat - "the Supreme Board") quashed the decision of 24 May 1984 and referred the case back to the Upper Austria Board following the applicants’ argument that the appeal could not be partly dismissed, as the applicants’ claims for compensatory parcels were an indivisible whole. It further held, inter alia, that the question of lawfulness (Gesetzmäßigkeit) also included considerations of functionality.

On 11 July 1985, in compliance with the Supreme Board’s decision, the Upper Austria Board set the consolidation scheme aside. The Board again pointed out that it did not share the opinion expressed in the private expert opinion submitted by the applicants. It established that the compensatory parcels attributed to the applicants were, on the whole, more advantageous, but that they also contained some negative aspects. The advantages were (a) the reduction of the splitting up of the plots and the resulting increase in the average size of the plots; (b) the reduction of the length of boundaries and the concomitant abolition of unproductive plots; (c) a better balance between length and width of the plots; and (d) better access. The negative aspects were (e) the diminution of the average comparative values of the parcels (by 2.3%); (f) the increase of average distance from the farm (by 2%); (g) the slight increase of forest border; (h) the inappropriate configuration of plot no. 4733; (i) the hook-like form of plot no. 4738 and the circuit line pylons on this plot part of which was unproductive.

The Board concluded that the lawfulness of the compensatory measures was still in question. The file was referred to the District Authority for the adoption of a new scheme.

In January 1986 the District Authority published a new consolidation scheme. The applicants also appealed against this scheme. Although they were now in agreement with the new land allocation, they demanded that the boundaries of one of their plots be straightened (Grenzbegradigung) and that their share in the costs of communal measures and facilities - 95,000 Austrian schillings (ATS) - (see paragraph 24 below) - be scrapped or reduced to a minimum.

On 18 September 1986, the Upper Austria Board dismissed the applicants’ appeal. It observed that the number of plots in the applicants’ possession had been reduced from seventeen to nine, whilst the difference in value between the new and the old land did not even attain 1%, well below the statutory maximum of 20%. All in all, the consolidation measures had led to an increase in productivity which compensated for certain small disadvantages. The applicants lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), which, in summary proceedings, refused to deal with the complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof) which, in its turn, decided to discontinue the proceedings for procedural reasons in February 1988.

On 26 January 1988 Mr and Mrs Prötsch had applied for financial compensation in respect of the damages allegedly caused to them by the fact that they had received insufficient compensatory parcels by the provisional transfer which at that time was still in force. They submitted an expert opinion according to which they had suffered a loss of crops in the amount of approximately ATS 210,000 between 1980 and 1987.

On 22 February 1988 the District Authority rejected the applicants’ claim as being inadmissible. It observed that the Agricultural Land Planning Act did not provide for any compensation in respect of damage suffered in the period between the provisional transfer and the assignment of lawful compensatory parcels by the final consolidation scheme (see paragraph 27 below). In addition, the agricultural authorities were only competent to decide on facts concerning the implementation of the consolidation.

The applicants’ appeal to the Upper Austria Board was dismissed on 7 July 1988 on the ground that there was neither a legal nor a factual basis for a claim for financial compensation in their case. In the latter respect, the Board pointed out that it had examined and rejected the applicants’ private expert opinion already in its decision of 11 July 1985 (see paragraph 11 above). Although the original consolidation scheme had had to be quashed in consequence of the applicants’ appeal, this did not mean that the applicants had suffered damage. In the instant case, it had been found in the earlier decision that among the total of 17ha of compensatory parcels allotted to the applicants only the configuration of one measuring some 2.2ha (no. 4738) was objectionable. On the other hand, the applicants had also gained certain advantages. Therefore the Board maintained the opinion already expressed in its earlier decisions that the applicants had not suffered any damage as far as yield and exploitation conditions were concerned.

The applicants challenged this decision before the Administrative Court alleging that the authorities had the duty to apply the provisions of the civil law. The Administrative Court, however, found that the administrative authorities were not competent to decide on compensation claims of a civil-law nature and dismissed the complaint on 27 September 1988.

The applicants lodged a complaint with the Constitutional Court invoking Article 6 of the Convention (art. 6) and Article 1 of Protocol No. 1 (P1-1). The Constitutional Court considered that in the light of its constant case-law the complaint did not have any prospects of success and, on 28 February 1989, refused to deal with it. In summary proceedings it observed, inter alia, that the facts in the applicants’ case were different from those in the case of Erkner and Hofauer v. Austria (judgment of 23 April 1987, Series A no. 117 - see paragraph 38 below) in that the consolidation scheme had already been published and that the applicants had never complained of the unreasonable length of the proceedings.

The basic rules applying to the consolidation of agricultural land, as applicable to the present case, are embodied in the Federal Agricultural Land Planning (General Principles) Act (Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977. Each Land has enacted its own agricultural and land planning legislation (Flurverfassungs-Landesgesetze) to regulate the matters of its competence within the federal framework. In the Land of Upper Austria, consolidation is governed by the Agricultural Land Planning Act 1979 ("the 1979 Act").

The purpose of consolidation is to improve the infrastructure and the pattern of agricultural holdings in a given area (section 1 (1) of the 1979 Act). It comprises communal measures and facilities and redistribution of land. The operation takes place in the following stages:

- initial proceedings;

- ascertainment of the occupiers of the land in question and assessment of its value;

- planning of communal measures and facilities;

- provisional transfer of land, where appropriate;

- adoption of the consolidation scheme. None of these stages may begin until the previous stage has been terminated with a final decision.

The initial proceedings, which the authorities institute of their own motion, serve to determine the consolidation area, which, in addition to farmland and forest, may include land voluntarily offered for consolidation and land required for communal facilities (sections 2 and 3). The owners form an association (Zusammenlegungsgemeinschaft), which is a corporate body governed by public law. The institution of proceedings means that land use is restricted until the proceedings are concluded; any change in use must be approved by the appropriate agricultural authority. This authority has exclusive jurisdiction, inter alia, over disputes concerning ownership and tenure of land in the consolidation area (section 102).

Once the decision to open proceedings has become final, the agricultural authority ascertains who are the occupiers of the land and assesses its value (sections 11 and 12). Its decision (Besitzstandsausweis und Bewertungsplan) determines the value of the land in accordance with precise statutory criteria (section 13). Each of the landowners involved may challenge the valuation not only of his own land but also of the land of the others. Once the agricultural authority’s decision has become final, however, it is binding on all of them.

Communal measures (such as soil improvement, alterations to terrain or landscape) and communal facilities (private roads, bridges, ditches, drainage and irrigation) are ordered, where they are needed, in a specific decision by the relevant authority (Plan der gemeinsamen Maßnahmen und Anlagen), which must also settle the question of costs, these usually being shared by the landowners.

Under section 22 of the 1979 Act, land may be provisionally transferred before the adoption of the consolidation scheme, even if some owners object. Decisions by the competent authorities ordering provisional transfers are not appealable; but section 7 of the Federal Agricultural Authorities Act 1950 (Agrarbehördengesetz, as amended in 1974 - "the 1950/1974 Federal Act") provides that the final decision shall lie with the Land Board (Landesagrarsenat), except in cases where an appeal lies to the Supreme Board (Oberster Agrarsenat - see paragraph 30 below). The main purpose of provisional transfer is to ensure that the consolidation area is rationally cultivated during the interim period. The land transferred becomes the property of the transferees subject to a condition subsequent: ownership of it reverts to the original owner if the allocation is not confirmed in the final consolidation scheme (Eigentum unter auflösender Bedingung, section 22 (2)). This provisional, conditional ownership is, as a rule, not entered in the land register since it is possible that the parties concerned may be allotted other parcels once the proceedings are completed. The District Authority has to authorise any entry in the land register (sections 94 et seq.).

At the end of the proceedings, the agricultural authority adopts the consolidation scheme (Zusammenlegungsplan, section 21). Since 1977 this has to be published within three years of the final decision provisionally to transfer parcels of land (section 7a (4) of the 1950/1974 Federal Act), failing which the person concerned may request the higher authority to assume jurisdiction. The adoption of the scheme is an administrative act which is supported by maps and other technical data, and whose main function is to determine the compensation due to the landowners who are parties to the proceedings. The 1979 Act includes the following regulations on this matter:

- when compensatory parcels are being determined, regard shall be had to the wishes of the parties directly concerned in so far as this can be done without infringing statutory provisions or interfering with important public interests served by the consolidation scheme;

- any landowner whose land is included in the consolidation scheme shall be entitled to compensation in the form of other land of equal value included in the same scheme or, if that is not possible, to be reallocated his previous parcels, including building land (section 19);

- changes in the value of land which come about in the course of the proceedings, including those occurring after the provisional transfer, must be taken into account in the final allocation under the consolidation scheme (section 14 (1));

- claims for financial compensation have to be submitted within six months from the date on which the consolidation scheme becomes final (section 20 (6)).

The legislation of the Länder did not at the material time provide for any financial compensation for damage suffered, before a final consolidation scheme came into force, by landowners who had successfully challenged the lawfulness of compensation received through transfer of land.

Following the judgments of the European Court of Human Rights of 23 April 1987 in the cases of Erkner and Hofauer cited above and Poiss v. Austria (Series A no. 117), Austrian legislation has been amended to the effect, inter alia, that, once it is found that compensatory parcels were not lawfully allocated, the concerned parties may apply for financial compensation (section 10 (5) to (7) of the Federal Agricultural Land Planning (General Principles) Act). The new legislation came into force on 1 January 1994.

The first-instance authority in Upper Austria is the District Agricultural Authority, which is a purely administrative body. The higher authorities are the Upper Austria Land Reform Board, established at the Office of the Land Government (Amt der Landesregierung), and the Supreme Land Reform Board, set up within the Federal Ministry of Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft). These boards include judges and constitute a kind of "specialised administrative tribunal".

Decisions of the District Authority can be challenged by way of appeal to the Land Board, whose decision is final except where it varies the decision in question and where the dispute concerns one of the issues listed in section 7 (2) of the 1950/1974 Federal Act, such as the lawfulness of the compensation in the event of land consolidation; in such cases an appeal lies to the Supreme Board. The executive can neither set aside nor vary the decisions of these three bodies, but they can be challenged in the Administrative Court (section 8 of the 1950/1974 Federal Act and Article 12 para. 2 of the Federal Constitution).

Procedure before the land-reform boards is governed by the 1950/1974 Federal Act, section 1 of which stipulates that the General Administrative Procedure Act - except for one section of no relevance in the instant case - shall apply, subject to the variations and additional provisions made in the 1950/1974 Federal Act. The boards are responsible for the conduct of the proceedings (section 39 of the General Administrative Procedure Act). By section 9 (1) and (2) of the 1950/1974 Federal Act, the boards take their decisions after a private hearing. Boards must determine cases without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them (section 73 (1)). If the board’s decision is not notified to the parties concerned within that time, they may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (section 73 (2)). If the latter authority fails to give a decision within the statutory time-limit, jurisdiction passes - on an application by the interested party - to the Administrative Court (Article 132 of the Federal Constitution and section 27 of the Administrative Court Act).

The decisions of land-reform boards can be challenged in the Constitutional Court which will determine, inter alia, whether there has been any infringement of the applicant’s rights under the Constitution (Article 144 of the Federal Constitution).

As an exception to the general rule laid down in Article 133 para. 4 of the Federal Constitution, section 8 of the 1950/1974 Federal Act provides for an appeal to the Administrative Court against the decisions of land-reform boards. Application may be made to the Administrative Court before or after an application to the Constitutional Court. The latter will, if it rules that there has been no infringement of the right relied on in the application to it and if the applicant so requests, refer the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution).

Under Article 130 of the Federal Constitution, the Administrative Court determines applications alleging the unlawfulness of an administrative act or a breach by a competent authority of its duty to make a decision. It also hears appeals against decisions of boards whose members include judges - such as the land-reform boards (see paragraph 29 above) - where such jurisdiction is conferred on it by statute.


The applicant was born in 1954 and lives in the city of Nizhniy Novgorod.

On 7 March 1995 criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes.

From 30 July to 28 October, on 15 November 1996 and on 15 and 16 January 1997 the applicant and his defence team studied the case-file.

On 21 April 1997 the Nizhniy Novgorod Regional Court (“the Regional Court”, Судебная коллегия по уголовным делам Нижегородского областного суда) convicted the applicant of some charges and acquitted him of the rest, sentencing him to one and a half year of imprisonment and the forfeiture of part of his property.

The judgment of 21 April 1997 was quashed on appeal by the Supreme Court of the Russian Federation (“the Supreme Court”, Верховный Суд Российской Федерации) on 17 July 1997. The case was remitted for fresh examination at first instance.

Between 30 September and 20 November 1997 the applicant and his counsel were again given an opportunity to study the case-file.

On 24 November 1997 the hearings recommenced at first instance.

The applicant's civil defender Mr Chumak and his counsel Mr Kozlov failed to attend the hearing of 6 May 1998.

Mr Chumak excused himself by reference to his previous engagements in a different set of proceedings. It appears that Mr Kozlov was undergoing medical treatment in a hospital.

In view of their absence, the court adjourned the hearing until 8 May 1998. On 8 May 1998 Mr Chumak and Mr Kozlov were again absent and, despite the applicant's proposal to continue the examination of the case in their absence, the court again adjourned the hearing, this time until 19 May 1998.

On 19 May 1998 both the civil defender and counsel Kozlov attended the hearing.

According to the transcript, at the hearing the applicant requested the court to admit Mrs Moskalenko as a “specialist in international law”. The court considered the request unfounded and irrelevant as there was no need for advice on international law at that stage of proceedings.

According to the applicant, he requested to admit Mrs Moskalenko as a replacement counsel for Mr Kozlov who was present and unfit effectively to participate in the hearing due to his medical condition.

From the hearing transcript it does not transpire that either the applicant or his defence counsel objected to the decision rejecting the applicant's request with reference to Mr Kozlov's alleged inability to participate in the further examination of the case on medical grounds.

During the trial the Regional Court heard more than thirty five witnesses in total, both for the prosecution and the defence.

The court refused the applicant's requests to call certain witnesses, including the former Regional Governor, the Regional Prosecutor and other officials, and admitted and considered five witness statements taken at the pre-trial stage of proceedings and during the first round of proceedings at first instance without hearing the respective witnesses in person.

Two of these witnesses were the Norwegian nationals R. and B. who had both been questioned by the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (“the Norwegian authority”, ØKOKRIM) and the Russian investigators in Norway on 20 February 1996.

The trial court attempted to secure the presence of these witnesses in person by making an official request to that effect to the Norwegian authorities.

By letters of 26 and 27 January 1998 R. and B. refused to appear and give evidence to the court, and on an unspecified date the Norwegian authorities refused to secure their presence at the trial by force.

Consequently, the witnesses R. and B. did not attend the trial and the applicant could not cross-examine them.

The third witness was a German national P. who gave evidence at the pre-trial stage of proceedings and during the first round of proceedings in 1997. The applicant and his counsel were able to cross-examine him during the first round of proceedings.

The trial court unsuccessfully tried to secure his presence but P. was in Germany and could not be found.

The fourth and fifth witnesses, the Russian nationals M. and A., were also questioned during the pre-trial investigation and during the trial in 1997. The applicant and the defence team were able to cross-examine them during the proceedings in 1997.

From the case-file and the documents presented by the Government it transpires that during the hearings the court summoned these two witnesses and the authorities repeatedly undertook various measures, including questioning the close relatives and the witnesses' connections, with a view to securing their presence at the trial. Apparently these measures proved futile as the witnesses' whereabouts could not be established.

It appears that the prosecution case contained several documents in English and Norwegian.

All documents admitted by the court as evidence were translated either by certified translators or by the staff of the Norwegian embassy. Most of the translations were attached to the case-file prior to the beginning of the first instance hearings, whilst some of them on 24 April 1998 (numbering 28 pages) and 19 May 1998 (16 pages), were submitted already after the beginning of the trial.

According to the Government, on one occasion the defence requested translation of a document which had not been used by the prosecution or the court. The request was granted and the necessary translation was made.

The court also admitted a number of expert reports (technical, medical, graphologist and others) which had been ordered by the prosecution during the pre-trial stage of proceedings.

It follows from the case-file that the applicant was officially notified of most of the prosecution decisions to carry out expert examinations (counting more than twelve) within a month from the date on which such decisions had been taken.

The decisions of 22 December 1995, 18 and 22 January 1996 to carry out expert examinations were served on the applicant on 12 April 1996. The decision to carry out expert examination dated 28 March 1996 was served on him on 16 May 1996.

At the time when these decisions were served, both the applicant and his counsel were officially informed about the procedural rights of the accused, including the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. The accused also had an opportunity to make related requests and motions in writing.

In respect of the decisions of 28 March and 30 April 1996 to carry out technical examinations, the applicant requested to provide him with copies of some documents. The copies were provided to him on 21 June 1996. As regards the decision of 22 January 1996 to carry out technical examinations, the applicant stated that it “might have been more objective” to carry out that examinations in Moscow or St Petersburg.

The copies of the notification reports state that the applicant and his counsel did not make any additional requests and motions.

On 27 May 1998 the Regional Court found the applicant guilty on charges of misappropriation, embezzlement, bribery and the attempt not to return money from abroad.

According to the judgment, the applicant and a co-accused Mr K., the director of a shipyard “Oka”, had tampered with documents with a view to embezzling the shipyard's property. The director, acting on behalf of the shipyard, was found to have arranged large-scale money transfers under fraudulent contracts with the companies owned by the applicant, whereas the applicant was found to have bribed the director by opening bank accounts in the name of Mr K. in Norway and transferring the stolen money there. Among other things, the applicant was also convicted of having extorted money from a marketplace owned and run by the companies “Zhanto” and “NL TOP”, and from a casino owned and run by a company “Slot”.

In total, the court sentenced the applicant to six years' imprisonment and the confiscation of part of his property. The court also upheld civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”.

The applicant's conviction was based on various pieces of evidence, i.e. numerous documentary items, including accounting, financial and contractual papers reflecting the operation of sham companies owned and run by the applicant and Mr K. as well as oral and written evidence given by more than thirty-five witnesses and various expert examinations.

A copy of the judgment of 27 May 1998 was served on the applicant on 3 June 1998.

Later it was discovered that the copy contained errors and misprints.

On 8 June 1998 the Regional Court corrected a number of clerical and technical mistakes in the judgment and ordered that the applicant be furnished with the amended version.

The applicant claims that he did not receive the amended version.

The records in the case-file indicate that the amended copy of the judgment was served on the applicant against his signature on 11 June 1998.

The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were all available to the interested parties, including the applicant and his counsel.

On 28 May 1998 the applicant requested to study records, audiotape recordings and shorthand records.

The applicant was provided with this opportunity on 10, 11, 15 and 16 June 1998.

On the last date a specialist of the Regional Court certified that the applicant had been given access to the trial record, though he had refused to study audio records and shorthand records.

On 17 June 1998 a judge of the Regional Court decided that the defence counsel should be given access to the records between 17 June and 23 June 1998.

The deadline for filing objections was set on 25 June 1998 accordingly.

It does not appear from the case-file that the applicant ever challenged the accuracy of the trial records.

On 27 May 1998 the Regional Court made a number of separate rulings (частные определения) in the case.

In one of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial.

In particular, the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over.

The court considered that this failure did not invalidate the conclusions of the experts' reports and that the applicant had failed to contest the results of the reports during the investigation or during the trial or request additional or repeated examinations to be carried out.

The court also noted that a number of documents in the case-file were in foreign languages, but considered that this did not violate the applicant's defence rights because the documents were similar to or copies of other documents in Russian and that in any event all relevant documents had been translated into Russian during the trial.

The court further noted that certain statements of witnesses had been admitted as evidence, even though they gave no indication as to the time or place of questioning. To verify the relevant points, these witnesses as well as other witnesses had been questioned in the courtroom on the circumstances of the questioning.

The defence appealed against the judgment of 27 May 1998 to the Supreme Court.

In their appeal, inter alia, the applicant's counsel contested the admissibility of certain evidence admitted by the court such as expert reports, documents in foreign languages, certain procedural documents, statements of witnesses made during the pre-trial investigation and at the first round of proceedings at first instance, statements of witnesses taken by the Norwegian police, and other evidence obtained in Norway, claiming that were allegedly in breach of the domestic procedural rules.

Furthermore, it was stated that the applicant's defence had not had due access to the trial records and the quality of the defence had been impaired by the Regional Court's refusal to admit Mrs Moskalenko as a replacement for a lawyer who was sick.

On 16 June 1998 Mrs Moskalenko joined the defence team. In July and on 10 August 1998 she referred to various difficulties in organising the defence and made several requests to the Supreme Court to adjourn the hearing.

She also complained that the applicant had been served neither with the final copy of the judgment, nor with the rulings of 27 May 1998 and that the defence had had no access to the verbatim record and certain volumes of the case-file.

On 29 June 1998 the Supreme Court granted one of her requests to adjourn the hearing. The hearing initially scheduled for 29 June 1998 was postponed.

Thereafter Mrs Moskalenko failed to appear at the hearing on 30 July 1998.

On 10 August 1998 Mrs Moskalenko requested to postpone a further hearing claiming that the defence had not been properly notified of the judgment and separate rulings.

In response to her request for adjournment, the Supreme Court ruled that both the defence in general and Mrs Moskalenko in particular had had sufficient time to examine the trial records, study the first instance judgment and prepare for the case at least between 16 June and 30 July 1998 and turned down the request as unfounded.

The appeal hearing took place on 10 August 1998.

On 10 August 1998, in the presence of the applicant's defenders, Mrs Moskalenko and Mr Chumak, and the prosecution, the Supreme Court examined the appeals and, with minor alterations, confirmed the judgment of 27 May 1998.

The court concluded that there had been no significant breaches of national procedural law or international standards during the trial.

As to the complaints about the handling and assessment of the evidence, the court found that the lower court had properly admitted and considered the evidence in the case and that the conclusions of the lower court had been reasonable and substantiated. It also noted that the defence had been furnished with Russian translations of foreign documents during the hearing.

The court further considered that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no time during the proceedings had he been deprived of professional legal advice.

In respect of the events of 19 May 1998, the court noted that the applicant's lawyer had never applied for an adjournment of the hearing for health reasons and the Regional Court's refusal to admit Mrs Moskalenko as a further lawyer did not constitute a violation of the applicant's right to defence.

According to Sections 78 and 80 of the Code of Criminal Procedure of the RSFSR (the Russian Soviet Federal Social Republic) of 1960, as in force at the relevant time, in cases requiring special knowledge of science, technology, art or particular skill, an investigative authority or a court may appoint an expert to carry out an expert examination. The conclusions of an expert are not binding on an investigating authority or a court but any disagreement with them must be motivated. By Sections 81 and 290 of the Code incomplete, unclear, unjustified or dubious expert conclusions may trigger a decision by a court or an investigator ordering additional or repeated expert examinations. In such cases the court takes the decision having heard the opinions of the participants of the proceedings (Section 276 of the Code).

Section 185 of the Code states that an accused and his counsel have the right to challenge an expert, seek an appointment of a particular person as an expert, adduce further questions, be present during the expert examination in person and make any comments and be informed of expert conclusions. In case the respective request was granted, an investigation alters its decision to carry out the examination accordingly.

By Section 193 of the Code, expert conclusions should be presented to the applicant who has the right to respond or object to these conclusions as well as the right to request the authority to put additional questions to the expert or carry out an additional or a repeated expert examination.

Having decided that the collected evidence is sufficient to prepare the bill of indictment, an investigator informs the accused that the investigation is terminated and that the accused has the right to study the entirety of the case personally and with the assistance of his defence counsel and to request the investigator to carry out an additional investigation (Sections 201, 202 and 203 of the Code). The investigator should draw up a report reflecting the progress of the defence in studying the case. The investigator cannot limit the time for study, except in cases where the accused and his counsel manifestly protract the process.

According to Section 17 of the Code, criminal proceedings are conducted in Russian. The contents of documents relating to court proceedings and investigation are made available to the accused in a language that he understands.

A translator appointed by a court or an investigator is under an obligation to make correct translations and may be held criminally liable for incorrect translations under Section 57 of the Code and Section 307 of the Criminal Code of Russia.

By Section 276 of the Code of Criminal Procedure, participants in the proceedings, including the accused and his defendants, have the right to make requests to summon new witnesses, experts and specialists or retrieve items of evidence and documents etc. A court, having heard other participants in the proceedings, should examine each such request and either grant it or give a motivated decision refusing it.

Section 292 of the Code provides that documents adduced to the case or presented by a party during a hearing and containing description of relevant facts should be read out.

By Section 320 of the Code, a copy of the first instance judgment should be served on an accused or an acquitted within three days from its delivery.

By Section 249 of the Code, a defender takes part in examination of the body of evidence, gives his opinion on various issues arising during the court proceedings, including the substance of accusations, any mitigating circumstances as well as the penalty and civil liability for the commission of a crime.

By Section 47 of the Code, advocates (counsel) and representatives of professional or other social unions may act as defenders. According to Section 250 of the Code, representatives of social organisations and staff may act as “civil defenders” (общественные защитники). As such they have the right to present evidence, take part in examination of evidence, make motions and challenges, participate in arguments as well as give their opinion on any mitigating or acquitting circumstances and the penalty.

Section 73 of the Code imposes an obligation on a witness to attend and to give truthful evidence to the best of his knowledge as well as to respond to questions. In case of failure to respect this obligation the witness may be brought before the authority by force and punished by a fine of up to a third of a monthly minimum wage and/or be held liable of a criminal offence.

According to Sections 240 and 245 of the Code, a trial court must carry out a first-hand examination of all evidence in the case, including, among other things, hearing of witnesses, the participants in criminal proceedings (a prosecutor, an accused, a defender, a victim, a civil claimant and a civil respondent and their representatives) having equal procedural rights concerning submission and examination of evidence as well as making of various requests.

Sections 277 and 286 of the Code state that in case of a witness's objective inability to attend a court, having heard the participants of the proceedings, may decide to read out the statements given by the witness at earlier stages of the proceedings.


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant, Mr Željko Knapić, is a Croatian national who was born in 1957 and lives in Čakovec. He was represented before the Court by Mr M. Ramušćak, a lawyer practising in Varaždin. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 30 December 2004 the Varaždin State Attorney’s Office (Općinsko državno odvjetništvo Varaždin) indicted the applicant before the Varaždin Municipal Court (Općinski sud u Varaždinu) for threatening behaviour. The applicant chose to defend himself in person and had no legal representation in the proceedings before the trial court. At the first hearing, held on 11 July 2005, the applicant and one witness gave evidence.

At the beginning of a hearing scheduled for 8 September 2005 at 12.30 p.m., the applicant’s wife approached the presiding judge asking on the applicant’s behalf for an adjournment of the hearing. She presented medical evidence showing that on 4 September 2005 the applicant had been injured and could not walk. The judge, however, continued with the hearing at which three witnesses, all of whom were called on behalf of the prosecution, gave evidence. The prosecution also gave their closing arguments and the trial was concluded. The applicant was found guilty as charged and sentenced to three months’ imprisonment.

On 4 October 2005 the applicant, now legally represented, lodged an appeal whereby he argued that the impugned judgment had not been adequately reasoned, that the reasons given by the trial court had been contradictory and that the facts had been wrongly established. The appeal was dismissed and the first-instance judgment upheld by the Varaždin County Court (Županijski sud u Varaždinu) on 2 November 2005.

On 30 December 2005 the applicant lodged a request for an extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude). It was dismissed by the Supreme Court (Vrhovni sud Repbulike Hrvatske) on 9 March 2006 on the ground that the applicant had failed to specify any ground for lodging his request under the relevant provisions of the Code of Criminal Procedure. Instead, he had challenged only the findings of the lower courts as to the facts of the case, which was not a ground for a request for extraordinary review of a final judgment.

On 16 October 2006 the applicant asked the Varaždin State Attorney’s Office to lodge a request for the protection of legality with the Supreme Court. This was denied on 11 July 2007.

The relevant part of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provides as follows:

“(1) Where a law has been infringed, the State Attorney of the Republic of Croatia may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions.

(2) The State Attorney of the Republic of Croatia shall lodge a request for the protection of legality against a court decision adopted in proceedings which violated fundamental human rights and freedoms guaranteed under the Constitution, laws or international law.

Article 419 of the Serbian Criminal Procedure Code (Zakonik o krivičnom postupku, published in Official Gazette nos. 70/01 and 68/02) reads:

“Where a law has been infringed, the competent State Attorney may lodge a request for the protection of legality against final court decisions and against the court proceedings preceding such decisions.”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1947 and lives in Helsinki.

In 1987 the applicant founded a company called “Oy Finnish Options and Futures Exchanges Ltd” (hereinafter “FOFE”).

FOFE went into liquidation on 12 August 1993 and was finally dissolved on 16 May 1994.

In the liquidation proceedings the applicant filed his claim against the estate, claiming 1,106,715 Finnish marks (FIM; approximately EUR 186,000), plus interest, in respect of unpaid salaries and other claims related to his employment contract with FOFE. As the estate contested most of the applicant’s claims, the parties instituted civil proceedings against each other before the District Court (käräjäoikeus, tingsrätt) of Helsinki. The estate of FOFE argued that the applicant had not been an employee of the company but had rather held an executive position as he had owned all its shares, and insisted that the applicant be ordered to reimburse to the estate certain assets he had allegedly transferred from the company to himself before the company was dissolved. The claims made by the parties against each other were jointly considered by the District Court.

It appears that at least one of the main issues in the civil proceedings was whether the applicant had been in an executive position in the company or not.

During a preparatory hearing at the District Court, on 15 August 1995, the representatives of FOFE named, among others, Mr J.S., President of the Board of Directors of FOFE, Mr S.L. and Mr A.P., both former members of FOFE’s Board of Directors and Mr A.P. also its former Executive Director, to give evidence on their behalf. The applicant named Mr J.N, former Managing Director of FOFE, the above-mentioned Mr J.S., and Mr E.S., to be heard as his witnesses concerning his position in the company.

In his written observations of 26 September 1995 to the District Court in respect of the estate’s claims the applicant stated, inter alia, as follows:

“The estate of FOFE has called Mr S.L. and Mr A.P., both of whom were members of its Board of Directors and the latter also its Executive Director, to give evidence. We will also hear them in respect of exactly the same issues on which we will examine Mr J.S.

With the support of the above-mentioned witnesses we will prove that [the applicant] has not had any close connections with FOFE since he resigned from its Board of Directors on 3 June 1992, and that he has had no decisive position in the company.”

At another preparatory hearing, on 4 October 1995, FOFE repeated that they would call A.P. as a witness. The applicant named the witnesses he had named on 15 August 1995 and further named Mr M.S. who would give evidence about the applicant’s tasks. The District Court decided on the same day that A.P. would be summoned by the court ex officio.

At yet another preparatory hearing in the case, on the morning of 11 October 1995, FOFE repeated their intention to hear A.P. as their witness. According to the District Court’s minutes from that last preparatory hearing the applicant had named four witnesses, namely Mr J.N., Mr J.S., Mr E.S. and Mr M.S. Witness Mr A.P. was mentioned in the list of the adverse party’s witnesses only.

Thereafter the District Court decided that the preparatory stage of the proceedings had ended and that the main hearing would be held that same day at ten o’clock.

A.P. failed to appear before the District Court on 11 October 1995, having informed the court in advance that he would be in Estonia at the time of the hearing and would not be available until 26 and 27 October 1995. The estate of FOFE withdrew their request to call A.P. as a witness. Thereupon the applicant appointed A.P. as a witness on his behalf and requested that the main hearing be adjourned until 27 October 1995. The District Court rejected the applicant’s request, holding, in the light of the other evidence, that the hearing of A.P. was not likely to be of assistance for discovering the truth. The District Court’s decision was repeated in its judgment delivered on 26 October 1995, in which it was found that the applicant had not been an employee but rather had occupied a leading position in FOFE. Most of the applicant’s claims were rejected, with the exception of FIM 300,000 (approximately EUR 50,000) for unpaid salaries. The applicant was, inter alia, ordered to refund FIM 1,191,425 (approximately EUR 200,000) to FOFE in compensation for the assets he had transferred from the company. He was also ordered to pay FIM 137,242.18 (approximately EUR 23,000) in compensation for FOFE’s legal fees and expenses.

On 27 November 1995 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing and calling A.P. as his witness. He argued that the hearing of A.P. as a former Executive Director of FOFE would be necessary for ascertaining the truth in respect of the applicant’s status in the company. He noted that A.P. had informed the District Court of his journey to Estonia at the time of the hearing but had simultaneously given the dates when he would be available. A.P. had been summoned by phone to appear before the District Court only a few days before the hearing of 11 October 1995. It had been impossible for him to cancel his business meeting in Estonia at such short notice. The applicant alleged that his request to adjourn the hearing in order to call A.P. as a witness had been inconvenient for the presiding judge of the District Court in respect of the timetable for the drafting of the decision. The hearing of A.P. was even more important at this stage as the District Court had not found the statement of J.S. to be credible in every aspect. If the court had heard A.P., who would have confirmed that the applicant had not been in any decisive position in FOFE, it would have been difficult for the District Court to decide as it did.

The Court of Appeal upheld the District Court’s decision on 20 February 1997, rejecting the applicant’s request to hold an oral hearing. The Court of Appeal stated as follows:

“...[The applicant] has called nine witnesses before the Court of Appeal. In so far as he has called Mr A.P., the Court of Appeal notes that A.P. had been appointed as a witness in the District Court only during the main hearing. According to Chapter 6, Section 9, of the Code of Judicial Procedure a party must not, in a case amenable to settlement, adduce a circumstance or evidence that he has not adduced in the preparation of the case, unless he establishes a probability that he had a valid reason for not doing so. [The applicant] has not established such a valid reason for appointing A.P. as a witness only at the main hearing. Thus, the appointment of A.P. as a witness must be regarded as if it had only taken place during the Court of Appeal proceedings. In so far as new witnesses have been appointed and new evidence appearing in the annexes to the applicant’s letter of appeal has been invoked, [the applicant] has not established a probability that he was unable to adduce the circumstance or evidence in the District Court or that he had a justifiable reason for not doing so. ... No such reason has been established in respect of the written submissions and their annexes submitted by the parties to the Court of Appeal after the relevant time-limit had elapsed, excluding the parts concerning the proposed stay of execution. In accordance with Chapter 25, Section 14, subsection 2, and Section 20, subsection 2, as well as Chapter 26, Section 5, of the Code of Judicial Procedure, the Court of Appeal leaves the submissions and their annexes unexamined, excluding the request concerning stay of execution, and rejects [the applicant’s] request to hold an oral hearing. Thus also the request to return the case to the District Court is rejected as being unnecessary.”

The applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, noting that the District Court had refused to call A.P. as a witness because it had found that it was unnecessary in the light of the other evidence invoked. The District Court had, thus, found that the applicant had not been prevented from calling him had the hearing of his evidence been necessary. The Court of Appeal had, however, found that the applicant had appointed A.P. as his witness only at a stage of the proceedings when he was already precluded from doing so, i.e. at the main hearing. The applicant had, however, appointed A.P. as his witness already in a preparatory meeting on 15 August 1995 and repeated the request on 26 September 1995 in his written observations to the District Court. He had also had a relevant reason to request that A.P. be heard as the estate of FOFE – which had originally called A.P. as a witness – had withdrawn their request only at the main hearing. A.P. had been the Executive Director of FOFE and, as such, was in the best position to give a statement of the applicant’s position in the company for the period from 28 October 1992 until the insolvency proceedings. Therefore the applicant found it very important that the Supreme Court would hear A.P. as a witness or, alternatively, return the case to a lower court in order to hear the witness.

On 22 October 1997 the Supreme Court refused the applicant leave to appeal.

According to Chapter 5, Section 19 (1052/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk), the evidence that is going to be presented and what is intended to be proved with each piece of evidence, must be determined during the preparation of the hearing. This means that the parties must, during the preparatory hearings, name all those persons whom they wish to call as witnesses in the main hearing.

According to Chapter 6, Section 9, a party must not in the main hearing adduce a circumstance or evidence that he has not adduced in the preparation, unless he establishes a probability that he had a valid reason for not doing so. Should the party show a valid reason, however, he may adduce the new circumstance or piece of evidence in the main hearing irrespective of the provisions of Chapter 6, Section 9 of the Code of Judicial Procedure.

The purpose of the provisions of Chapter 6, Section 9 is to ensure compliance with the fair trial requirements. It is a requirement of a fair trial that the adverse party is informed beforehand of each piece of evidence (including witnesses) to be presented in the main hearing.

There are separate provisions concerning the submission of new evidence before a Court of Appeal in Chapter 25, Section 17 of the Code of Judicial Procedure. Before the entry into force of the Act amending the Code of Judicial Procedure (165/1998) the said provisions were contained in Chapter 25, Section 14, subsection 2 (1052/1991). According to these provisions, in a civil case, the appellant shall not in the Court of Appeal refer to other circumstances or evidence than those presented in the District Court, unless he establishes a probability that he was not able to refer to the circumstance or evidence in the district court or that he had a justifiable reason for not doing so.

Even if a party to the proceedings, under Chapter 5, Section 19 of the Code of Judicial Procedure, has named his witnesses in the preparatory hearing, or had a valid reason for not invoking a certain circumstance or piece of evidence before the main hearing or the court of appeal hearing, the court may refuse to examine such a circumstance or piece of evidence as it considers clearly unnecessary. According to Chapter 17, Section 7 (571/1948) of the Code of Judicial Procedure, if a piece of evidence that a party wishes to present pertains to a fact that is not material to the case or that has already been proven, or if the fact can be proven in another manner with considerably less inconvenience or cost, the court shall not admit this piece of evidence.

Chapter 5, Section 17 (1052/1991) of the Code of Judicial Procedure provides that the court shall conduct the preparation in such a manner that the case can be dealt with in a continuous main hearing. The aim of this provision is to avoid adjournments of the main hearing.

Chapter 17, Section 26, subsection 3 (1056/1991) provides that the court shall see to the calling of witnesses to court, unless this has been entrusted to a party in accordance with Chapter 11, Section 2, according to which, on the request of a party, the court may in a civil case entrust the service of a notice to the party, if it deems there to be justified grounds for this.