Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Violation of Art. 5-3;Questions of procedure accepted;Violation of Art. 3;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr Félix Tomasi, a French national born in 1952, resides at Bastia (Haute-Corse). He is both a shopkeeper and a salaried accountant. At the time of his arrest, he was an active member of a Corsican political organisation, which put up candidates for the local elections and of which he was the treasurer.

On 23 March 1983 the police apprehended him in his shop and placed him in police custody until 25 March at Bastia central police station.

They suspected him of having taken part in an attack at Sorbo-Ocagnano (Haute-Corse) in the evening of 11 February 1982 against the rest centre of the Foreign Legion, which was unoccupied at that time of the year. Senior Corporal Rossi and Private Steinte, who, unarmed, were responsible for maintaining and guarding the centre, had been shot at and wounded, the former fatally and the latter very severely.

The attack had been carried out by a commando of several persons wearing balaclava helmets to conceal their features. The following day the "ex-FLNC" (the Corsican National Liberation Front), a movement seeking independence which had been dissolved by decree, had claimed responsibility for the attack and for twenty-four other bomb attacks which had been perpetrated the same night.

On 12 February 1982 the Bastia tribunal de grande instance had opened an investigation relating to charges of murder, attempted murder and the carrying of category 1 and category 4 weapons and ammunition. The same day the investigating judge had issued instructions for evidence to be taken on commission (commission rogatoire) to the Regional Criminal Investigation Department (SRPJ) of Ajaccio.

On 25 March 1983 Mr Pancrazi, investigating judge at Bastia, charged Mr Tomasi and remanded him in custody following the latter’s first appearance before him; he took the same measures in respect of a certain Mr Pieri. On 8 April he questioned Mr Tomasi on his alleged involvement in the offences.

He took evidence from witnesses on 28, 29 and 31 March, 14 and 29 April, 19 and 30 May and 2 June 1983.

On 19 May he questioned Mr Pieri and on 26 May another co-accused, Mr Moracchini, who had been held on remand since 24 March 1983. He organised confrontations between them on 30 and 31 May, and then on 1 June.

In addition he issued formal instructions for evidence to be taken on 26 May and 27 October 1983.

The recapitulatory examination of Mr Tomasi and Mr Pieri was conducted on 18 October 1983, and that of Mr Moracchini on 21 November.

On 26 October 1983 the investigating judge visited the scene of the crime.

The case was transferred to another investigating judge, Mr Huber, with effect from 2 January 1984.

Mr Pieri escaped from prison on 22 January 1984; he was recaptured on 1 July 1987.

Between 4 May 1984 and 10 January 1985, Mr Huber issued several orders for the inclusion of documents in the file and for their transmission to the prosecuting authorities.

On 24 January 1985 he rejected a request by the applicant for documents to be added to the file.

Mr Tomasi submitted eleven applications for release.

The investigating judge rejected them by orders of 3 May, 14 June and 24 October 1983, 2 January 1984, 24 January, 20 March, 5 April, 18 April, 24 April, 3 May and 7 May 1985. On 6 June 1984 he issued instructions that the applicant be interviewed in Marseille on the conditions of his detention on remand. That interview took place on 18 June.

The applicant challenged the orders of 14 June 1983, 2 January 1984, 24 January and 20 March 1985, but the indictments division (chambre d’accusation) of the Bastia Court of Appeal upheld them on 7 July 1983, 26 June 1984, and 20 February and 17 April 1985.

In its judgment of 20 February 1985 it stated that it was necessary to continue the detention in order to avoid pressure being brought to bear on the witnesses, to prevent unlawful collusion between the accomplices, to protect public order (ordre public) from the prejudice caused by the offence and to ensure that Mr Tomasi remained at the disposal of the judicial authorities.

On 10 January 1985 the Bastia public prosecutor applied to the principal public prosecutor of that town for jurisdiction to be transferred on the ground of the climate of intimidation which reigned in the island.

On 25 March the principal public prosecutor at the Court of Cassation referred the matter to the Court of Cassation (criminal division), which gave its decision on 22 May; it transferred the case to the Bordeaux investigating judge "in the interests of the proper administration of justice" (Article 662 of the Code of Criminal Procedure).

On 5 September 1985 Mr Nicod, investigating judge at Bordeaux, interviewed Mr Tomasi for the first and last time.

He questioned Mr Moracchini on 1 October 1985 and 13 January 1986, and Mr Satti - another co-accused - on 15 November 1985. In addition, he organised a confrontation between them on 13 December 1985.

On 14 January 1986 the investigating judge made an order transmitting the documents to the prosecuting authorities.

On 14 February 1986 the Bordeaux public prosecutor decided to forward the case-file to the principal public prosecutor’s office.

From mid-March to mid-April 1986, the investigating judge added various documents to the file. On 17 April he made a further order transmitting the case-file to the prosecuting authorities, endorsed by the Bordeaux public prosecutor’s office.

The case-file was forwarded to the principal public prosecutor’s office by a decision dated 22 April 1986.

Mr Tomasi submitted seven applications for his release.

The investigating judge dismissed his applications on 31 May, 7 June, 29 June, 13 August, 10 September and 8 October 1985 and 14 January 1986.

On appeals against various of the investigating judge’s orders, the indictments division of the Bordeaux Court of Appeal upheld them by decisions of 3 September and 29 October 1985.

The first such decision referred to the particular gravity of the offences, the existence of "precise and convincing evidence", the risk of pressure being brought to bear and of unlawful collusion and the need to maintain public order and to ensure that the applicant appeared for trial.

The second decision contained the following reasoning:

"It is plain that the offences of which the appellant is accused are particularly serious ones and profoundly prejudiced public order; without disregarding the pertinent observations of the accused’s counsel concerning the length of the proceedings, it appears nevertheless that, as the investigating judge decided, Tomasi’s continued detention is necessary to protect public order from the prejudice caused by the offences in question and also to avoid pressure being brought to bear or unlawful collusion and to ensure that the accused appears for trial;"

The two decisions gave rise to appeals on points of law by the applicant, which were dismissed by the criminal division of the Court of Cassation on 3 December 1985 and 22 January 1986.

The latter decision was based on the following reasons:

"In the light of the available evidence the Court of Cassation is satisfied that the indictments division ordered the continuation of the applicant’s detention by a decision which set out the reasons on which it was based with reference to the particular circumstances and which was made under the conditions, and for cases, specified in Article 144 of the Code of Criminal Procedure; it may also be seen from the grounds of the decision that there is in this case, as is required under Article 5 para. 1 (c) (art. 5-1-c) of the Convention, ... reasonable suspicion that the accused has committed an offence; it follows moreover that, having regard to the specific circumstances of the case and the proceedings, the duration of the detention appears reasonable;"

On 27 May 1986 the indictments division of the Bordeaux Court of Appeal indicted Mr Tomasi and Mr Pieri for murder with premeditation, attempted murder with premeditation and carrying category 1 and category 4 weapons, together with the corresponding ammunition; it committed them - as well as Mr Moracchini and Mr Satti - for trial at the Gironde assize court.

On 13 September 1986 the criminal division of the Court of Cassation allowed the appeal lodged by the applicant on 27 June 1986 on the ground that defence counsel had not been allowed to speak last at the hearing on 27 May.

It remitted the case to the indictments division of the Poitiers Court of Appeal, instructing that court to commit the accused for trial at the Gironde assize court if there were grounds for indicting him (Article 611 of the Code of Criminal Procedure).

On 9 December 1986 the Poitiers indictments division committed Mr Tomasi for trial at the Gironde assize court.

This decision did not give rise to an appeal on points of law.

On 3 February 1987 the indictments division of the Bordeaux Court of Appeal ruled that it lacked jurisdiction to commit the applicant - but not his three co-accused - for trial at the specially constituted Gironde assize court, in other words the assize court sitting without a jury. The principal public prosecutor’s office had requested it to apply the provisions of Law no. 86-1020 of 9 September 1986, according to which persons accused of acts of terrorism must be tried before such a judicial body.

On 7 May 1987 the criminal division of the Court of Cassation dismissed the appeal on this issue filed by the principal public prosecutor at the Bordeaux Court of Appeal.

On 16 June 1987 the Poitiers indictments division allowed an application lodged on 20 May 1987 by the prosecuting authority and committed the applicant for trial at the specially constituted Gironde assize court. It thereby acknowledged that the offences of which Mr Tomasi was accused were "related to an individual or collective undertaking aimed at seriously prejudicing public order by intimidation or terror" (Article 706-16 of the Code of Criminal Procedure).

On 24 September 1987 the criminal division of the Court of Cassation dismissed a further appeal by the applicant.

By a decision of 27 May 1986 (see paragraph 24 above), the Bordeaux indictments division dismissed an application for release which Mr Tomasi had submitted on 6 May. It gave the following grounds:

"The detention on remand, which started on 25 March 1983, has certainly lasted a very long time. However, the explanation for this lies in the systematic attitude adopted by the accused and the considerable difficulties encountered by the investigating judge. The period of detention, although long, does not in itself constitute a violation of the European Convention on Human Rights. On the contrary, in this particular case continued detention appears to be essential, given the exceptional gravity of the offences and the fact that Tomasi would not hesitate to abscond if he were released."

The applicant filed an appeal on points of law, but the criminal division of the Court of Cassation rejected the submission based on the violation of Article 5 para. 3 (art. 5-3) of the Convention. On this issue its judgment of 13 September 1986 stated as follows:

"In the light of the available evidence the Court of Cassation is satisfied that the applicant’s continued detention was properly ordered in accordance with the conditions laid down in Article 148-1 of the [Code of Criminal Procedure], by a decision setting out specific reasons, having regard to the features of the case as is required under Article 145 of that Code and for cases exhaustively listed in Article 144;

In addition the indictments division discussed the complexity and the length of the proceedings, carrying out an unfettered appraisal of the facts, which was sufficient and free of contradictions and from which it concluded that the length of the detention on remand had not exceeded a reasonable time [; it follows] that the submission must fail ..."

Mr Tomasi submitted a new application for release on 19 January 1987.

By a decision of 3 February 1987 (see paragraph 27 above) the Bordeaux indictments division found that it lacked jurisdiction as the committal had been decided by the Poitiers indictments division.

On 17 April 1987 the applicant lodged a further application for his release.

On 28 April the Bordeaux indictments division dismissed his application on the ground that the committal had been based on precise and detailed reasons, the offences were extremely serious ones and the detention was necessary to protect public order from the prejudice to which they had given rise.

The applicant lodged a further application for release on 22 May 1987 with the indictments division of the Poitiers Court of Appeal, which dismissed it on 2 June for the following reasons:

"A campaign of intimidation against the witnesses, policemen and judges has been waged in the course of the investigation;

A mere recital ... of the offences which led to Tomasi being charged is sufficient, besides the fact that the said offences seriously prejudiced public order, to justify the accused’s continued detention; there is a grave danger that if he were to be released he would enter into contact with members of the FLNC, who would no doubt be only too pleased to help him evade trial; it does not appear that his continued detention is, in the circumstances, such as to infringe the provisions of the Convention ..."

On 6 November 1987 the applicant once again applied to the Bordeaux indictments division for his release.

On 13 November his application was dismissed on account of the extreme gravity of the alleged offences and the need to protect public order from the prejudice created thereby.

He then filed an appeal on points of law, which the criminal division of the Court of Cassation dismissed on 2 March 1988.

On 22 January 1988 the President of the Bordeaux Court of Appeal had directed that the session of the assize court was to open on 16 May 1988.

On 28 April the President decided to postpone the opening of the session until 17 October 1988, following an exchange of correspondence in March and April between the principal public prosecutor’s office and counsel for Mr Tomasi and Mr Pieri.

On 15 July and 23 September he altered the composition of the trial court.

The trial took place from 17 to 22 October 1988. On that last date, the applicant was acquitted and immediately released. His three co-accused were given suspended sentences of one year’s imprisonment for carrying or possession - as the case may be - of a category 1 weapon.

On 18 April 1989 Mr Tomasi lodged a claim with the Compensation Board at the Court of Cassation under Article 149 of the Code of Criminal Procedure. According to this provision, "... compensation may be accorded to a person who has been held in detention on remand during proceedings terminated by a decision finding that he has no case to answer (non-lieu) or acquitting him, when that decision has become final, where such detention has caused him damage of a clearly exceptional and particularly serious nature".

On 5 June 1991 the principal public prosecutor (procureur général) at the Court of Cassation made the following submissions to the Compensation Board:

IN THE MATTER OF THE DETENTION

During his detention, Tomasi lodged twenty applications for release, eleven applications to the Bastia investigating judge and nine to the investigating judge and the indictments division in Bordeaux.

Six judgments confirming decisions were given, four by the Bastia indictments division and two by that of Bordeaux.

Finally, two decisions of the criminal division of the Court of Cassation, of 17 October and 2 March 1988, dismissed Tomasi’s appeals from the two decisions of the Bordeaux indictments division.

In their decisions rejecting the applications for release the investigating judges and the indictments division gave their reasons as being the exceptional gravity of the offences, the prejudice caused to public order, the need to ensure that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses.

DISCUSSION

The length of the proceedings

. From 12 February 1982, the date on which the investigation was opened, to 25 March 1983, Tomasi was not yet implicated.

. From 25 March 1983, the date on which Tomasi was charged, to 18 October 1983, the date of his recapitulatory examination, the proceedings progressed at a normal pace and there were no delays.

. From November 1983 to May 1984 the proceedings slowed down and consisted of measures which could have been taken previously if the commissions rogatoires or the orders relating to them had been issued earlier.

Thus the result of the commission rogatoire concerning the victim’s spectacles was not communicated until March 1984; it had not been issued until 27 October 1983 ..., whereas it could have been right at the beginning of the investigation.

Similarly the commission rogatoire giving instructions inter alia for an inquiry into the victims and into the Sorbo-Ocagnano camp and for a study and plans to be made of the premises was not issued until 26 May 1983...

The evidence obtained under that commission rogatoire was produced only in the course of the months of March and April 1984, which undeniably prolonged the proceedings.

. The lack of progress in the proceedings between May 1984 and January 1985 is incomprehensible. Thus nearly three months elapsed between the order of 4 May 1984 transmitting the papers to the prosecuting authority and the additional prosecution submissions of 31 July 1984 calling for a ballistic examination, which had already taken place. Yet it was not until the following 15 November, three and a half months later, that the investigating judge gave his order dismissing that request for an expert examination.

. From January 1985 to May 1985, the time taken for the transmission of documents to the indictments division and then the Court of Cassation and the return of the file to Bordeaux seems normal.

. On the other hand it was not until 5 September 1985, more than three months after the case had been referred to him, that the Bordeaux investigating judge carried out his first substantive investigative measure by interviewing Tomasi, after having dismissed the latter’s applications for release on four occasions.

This lapse of time appears excessive in view of the fact that an investigating judge must give priority to a case concerning a person held in detention on remand; he has a duty to familiarise himself with it and proceed with the investigation as quickly as possible.

. From September 1985 to 14 January 1986 the interrogations and confrontations were continued at the rate of one investigative measure per month. Interviews held at shorter intervals would have made it possible to reduce the duration of the proceedings significantly.

. From January 1986 to May 1986 the time taken to complete the file and transmit it to the assize court appears normal.

. On the other hand, from May 1986 to March/April 1988 there was a delay in the proceedings which can under no circumstances be justified by the appeals filed by the accused in pursuance of their statutory rights.

. Finally, it should be noted that the decision in the course of March and April 1988 to renounce holding the May session and to replace it by a session fixed for 17 October 1988 was taken by mutual agreement between the prosecuting authorities and the defence.

In conclusion, in view of the significance and the complexity of the case the investigation was bound to last longer than average. However, it could have been considerably shortened without the various delays noted above.

The necessity of keeping Tomasi in detention during the proceedings

Given the nature and the gravity of the offences and the results of the police investigation, Tomasi’s detention was at first justified, up until his recapitulatory examination of 18 October 1983.

Moreover, until that date, Tomasi had not filed an application for release. However, by 18 October 1983 the witnesses had already been interviewed and the confrontations carried out.

The measures taken after that date, in particular the commissions rogatoires and the expert examinations, did not concern Tomasi directly, except the expert medical examinations ordered following his declarations regarding the conditions of his police custody, which clearly could not justify his continued detention.

It should moreover be stressed that between 18 October 1983, the date of the recapitulatory record, and 17 October 1988, the date on which the assize court session opened, in other words for five years, Tomasi was questioned only once, on 5 September 1985, and at his request.

The decisions rejecting his various applications for release were based on the exceptional gravity of the offences, the prejudice caused to public order, the necessity of ensuring that the accused remained at the disposal of the judicial authorities and the risk of pressure being brought to bear on the witnesses.

The gravity, even of an exceptional nature, of offences may constitute a ground for detention only if there is sufficient evidence against the person held.

In this case, charges had been preferred against Tomasi, who had always protested his innocence and had been on hunger strike several times, exclusively on the basis of Moracchini’s statements, which were far from being as precise as they were claimed to be throughout the proceedings.

In fact, according to various documents from the proceedings, and in particular:

- the report of the public prosecutor to the Bastia principal public prosecutor of 11 April 1983 ...,

- the memorandum from the SRPJ of Ajaccio of 8 June 1983 ...,

- the application by the Bastia investigating judge for a transfer of jurisdiction of 10 January 1985 ..., Moracchini stated that Tomasi had suggested that he take part in the `nuit bleue’ (night of terrorist outrages) of 11 to 12 February 1982, and specifically carry out an attack against the Foreign Legion camp of Sorbo-Ocagnano.

Yet if all Moracchini’s statements are read carefully it may be seen that although he did state that Tomasi had suggested that he participate in the `nuit bleue’, at no time did he mention an attack against the Foreign Legion camp ...

Quite the contrary, Moracchini always claimed that he had learned of the attack for the first time the day after the events.

Thus, for example, in the course of his interrogation at his first appearance before the investigating judge ... Moracchini stated as follows:

‘I was aware that Pieri knew Félix Tomasi. The latter had indeed suggested a few days earlier that I should take part in a `nuit bleue’. I had refused, but at no time did he say what attack I would have been expected to carry out. As for me, I only heard about the legionaries through the newspapers, on the morning of 12 February.’

Furthermore, it should be observed that all the witnesses who confirmed Moracchini’s statements merely reported what he had told them. None of them was a direct witness to the events.

In addition, it does not seem that the release of Tomasi, who could provide sound guarantees that he would appear for trial and who had no previous convictions, could have represented a risk of pressure being brought to bear on witnesses or on Moracchini, a co-accused who was free.

In fact, Tomasi, like Pieri and Moracchini, was not remanded in custody until more than a year after the events and Pieri, implicated by the same witnesses as Tomasi, had escaped from prison on 22 January 1984 and remained free for three and a half years until his arrest on 1 July 1987, apparently without any pressure being brought to bear on the witnesses.

Finally, it should be noted that on 10 March 1987 Félix Tomasi lodged an application with the European Commission of Human Rights under Article 25 (art. 25) of the European Convention for the Protection of Human Rights, making the following complaints:

- excessive duration of his detention on remand (violation of Article 5 para. 3 of the Convention) (art. 5-3);

- inhuman and degrading treatment during his police custody (violation of Article 3 of the Convention) (art. 3);

- excessive duration of the investigation proceedings opened following a complaint accompanied by a civil claim (violation of Article 6 para. 1 of the Convention) (art. 6-1).

This application was the subject of a report by the European Commission of Human Rights adopted on 11 December 1990, in which the Commission declared the application admissible and expressed the opinion by twelve votes to two that there had been, in the case under review, a violation of Article 3 (art. 3) of the Convention, by thirteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1) of the Convention and, unanimously, that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention.

IN CONCLUSION

In the light of the various considerations set out above, and the particularly distressing conditions of his detention, Félix Tomasi, who spent five years and nearly seven months in detention and in respect of whom the investigation produced only weak and insufficient evidence, suffered considerable damage on this account.

For all these reasons I call upon the Board to award appropriate compensation."

By a decision of 8 November 1991, which contained no statement of the reasons on which it was based, the Compensation Board awarded the applicant 300,000 French francs.

Mr Tomasi was apprehended on 23 March 1983 at 9 a.m. (see paragraph 8 above). He remained in police custody until 9 a.m. on 25 March, in other words forty-eight hours, Judge Pancrazi having granted the police an extension of twenty-four hours at 6 a.m. on 24 March.

During this period, the applicant:

(a) had been present at a search of his home on 23 March from 9.15 a.m. to 12.50 p.m.;

(b) had undergone several interrogations:

- on 23 March from 1.15 p.m. to 2.30 p.m., from 5.30 p.m. to 8 p.m. and from 8.40 p.m. to 10.15 p.m., a total of five hours and twenty minutes;

- on 24 March from 1.30 a.m. to 2 a.m., from 4 a.m. to 4.45 a.m., from 11 a.m. to 1 p.m., from 3.40 p.m. to 8 p.m. and from 8.30 p.m. to 9.20 p.m., a total of eight hours and twenty-five minutes;

- on 25 March from 4.30 a.m. to 4.50 a.m., twenty minutes;

(c) had been examined on 24 March at 11 a.m. by a doctor, who had concluded that his state of health was compatible with the extension of the police custody.

The applicant signed the recapitulatory record drawn up at the end of his police custody, but refused to sign that of his last interrogation.

On 25 March 1983, when he first appeared before the investigating judge (see paragraph 10 above), he made the following statement:

"I note the charges of which you have informed me. I am a declared member of the CCN [Cunsulta di i cumitati naziunalisti]. I am not a member of the FLNC. I will make a statement later in the presence of my lawyer, Mr Stagnara.

I should like to add, however, that I was struck during my police custody by police-officers; I do not wish to give their names. I was not allowed any rest. I had to ask the doctor who visited me for something to eat because I was left without food and all I had to eat was one sandwich. This morning, I was left naked in front of an open window for two or three hours. I was then dressed and beaten up. This went on continuously throughout the police custody. I can show you bruises on my chest and a red patch under my left ear."

The judge had the words "seen, correct" entered at the end of this statement.

On 29 March 1983 Mr Tomasi laid a complaint against persons unknown together with an application to join the proceedings as a civil party (constitution de partie civile), "for assault committed by officials in the performance of their duties and abuse of an official position".

The following day the senior investigating judge ordered that the applicant lodge a deposit set at 1,200 francs and communicated the file to the public prosecutor’s office.

On 29 March Mr Pancrazi, the investigating judge, interviewed as a witness Dr Bereni, Senior Medical Officer at Bastia Prison. He stated as follows:

"I am a medical officer in the Prison Service and I examined Charles Pieri on his arrival at the prison and Félix Tomasi, as I do with all the inmates.

In Félix Tomasi’s case, I observed behind the left ear a haematoma which had spread slightly towards the cheek. I noted slight superficial scratches on the chest. In addition, Tomasi reported pain in his head and neck, as well as in his legs, arms and back, but, as I have already stated, I was unable to find objective evidence to support these claims.

In both cases the injuries were very slight with no serious features and could not lead to incapacity for work."

On 25 March 1983 the same judge had instructed a Dr Rovere, an expert attached to the Bastia Court of Appeal, to carry out the following tasks:

"1. Effect an examination of the victim’s injuries, illnesses or disabilities, describe them, specify their likely sequelae and give an opinion as to their causes;

Describe the extent of the incapacity and assess its probable duration."

The doctor, who had examined Mr Tomasi on 26 March 1983 at 12 noon in the prison, in the presence of the investigating judge, lodged his report on 30 March. The report stated as follows:

"III. CURRENT CONDITION

(1) Symptoms complained of Mr Félix Tomasi complained of . acute otalgia in the left ear . acute parietal and bilateral cephalalgia . slight back pain . pains in the upper abdomen No other symptom was complained of.

(2) Clinical examination

(a) General examination:

. Weight: 60kg; height: 1m65 (estimation). Blood pressure: 11,5/7. Pulse rate: 84 beats to the minute. Cardiopulmonary examination: normal.

(b) Cranio-facial segment:

- Two barely visible abrasions, one on the right temple and the other above the right eyebrow - Small horizontal bruise to the upper part of the left eyelid, measuring 2cm in length, colour purplish-red - Pains complained of on palpation of the right parietal region of the skull - Conjunctival redness in both eyes (the patient states that he had this condition before his police custody), non- traumatic in origin - Neurological examination: . Pupils equal size, regular and contractile. No nystagmus . Romberg negative. No asymmetry, no dysdiadochokinesis . Tendon reflexes - normal. No deviation in the index finger test and the blind walk test - Left ear:. A dark-red-coloured bruise, warm and allegedly painful on palpation, in the helix and the anthelix . The external auditory meatus and the eardrum show no sign of a traumatic injury.

(c) Cervical rachis:

- No apparent trace of traumatism. Pressure on the processus spinosis of the cervical vertebrae C1 and C2 allegedly painful. Unrestricted neck movement, cracking sounds in articulations could be heard on side movements of the head (commonplace after the age of thirty). No muscular contraction.

(d) Thorax and abdomen:

- Ecchymotic striae (vibices) located as follows:. one at the level of the praesternum . one at the level of the metasternum . three others at the level of the epigastric region . one at the level of the right hypochondrium. These marks are red in colour, surrounded by a purplish halo, visible in non-artificial light and allegedly painful on palpation. - No hepatomegaly - No splenomegaly (enlarged spleen) - Slight abdominal distension.

(e) Lumbar region:

- No apparent trace of traumatism. No restriction on scope of trunk movement. No paravertebral muscular contraction.

(f) Left arm:

On the upper third of the postero-internal face of the arm there is a bruise which is red in colour, with a purplish periphery in its lower part, measuring 8cm in length and 4cm in width, claimed to be painful on palpation.

Below this bruise, two others may be seen, of a circular shape, measuring 1.5cm in diameter, less highly coloured.

IV. DISCUSSION AND CONCLUSION

Mr Félix Tomasi has the following symptoms, as observed in the examination of 26 March 1983:

- Superficial bruising to the left upper eyelid, the front of the chest, in the epigastric region and that of the right hypochondrium, on the left arm and the left ear

- Two barely visible cutaneous abrasions on the right temple.

The red colouring of the bruises with a peripheral purple halo makes it possible to fix the date of their origin as between two and four days before the examination on 26 March 1983.

The simultaneous presence of abrasions and bruises makes it possible to affirm that these injuries are traumatic in origin; however, biological tests could be carried out in order to eliminate another medical cause.

Their extent and form offer no indications of how they first occurred; they are thus consistent with Mr Tomasi’s declarations but could equally have a different traumatic origin.

These injuries entail temporary total incapacity of three days."

On 24 June 1983 Judge Pancrazi interviewed Mr Tomasi as an accused. After the expert medical reports concerning the victims of the attack of 12 February 1982 had been read out to the applicant and his co-accused, the applicant stated:

"The injuries which were noted during the examinations made firstly by Dr Rovere and then by Drs Rocca and Ansaldi, were the result of the acts of Superintendent [D.], his deputy [A.] and some of the other officers of the criminal investigation department.

I was beaten for forty hours non-stop. I didn’t have a moment’s rest. I was left without food and drink.

A police-officer, whom I would be able to recognise, held a loaded pistol to my temple and to my mouth, to make me talk. I was spat upon in the face several times. I was left undressed for a part of the night, in an office, with the doors and windows open. It was in March.

I spent almost all the time in police custody standing, hands handcuffed behind the back. They knocked my head against the wall, hit me in the stomach using forearm blows and I was slapped and kicked continuously. When I fell to the ground I was kicked or slapped to make me get up.

They also threatened to kill me, Superintendent [D.] and officer [A.] told me that if I managed to get off they would kill me. They also said that they would kill my parents. They said that there had been an attack at Lumio where there had been a person injured and that the same thing would happen to my parents, that they would use explosives to kill them.

I would like to say in connection with the injuries to my left ear that, in addition to the bruise noted by Dr Rovere, I bled, to be more precise my ear was bleeding, as I realised when I put a cotton bud in my ear. This lasted for a fortnight. I asked if I could see a specialist and Dr Vellutini told me that I had a perforated eardrum. I also realised afterwards that I had a broken tooth. I was therefore not able to tell this to the experts.

Drs Rocca and Ansaldi stated that the bruise to the left upper eyelid could suggest the shape of spectacles; but my spectacles are worn on the nose and although they may leave marks on the nose, they cannot under any circumstances mark the upper part of the eye."

Following the lodging of Mr Tomasi’s complaint and at the request of the public prosecutor, the President of the Bastia tribunal de grande instance appointed another investigating judge, Mr N’Guyen, on 2 June 1983.

Without waiting for the outcome of the application for an order designating the competent court (see paragraph 55 below), Mr N’Guyen had already appointed two experts of the Bastia Court of Appeal, Dr Rocca and Dr Ansaldi, who had examined the applicant on 29 March 1983 at the prison and submitted their report on 1 April. This document was worded as follows:

"SUMMARY OF THE FACTS:

The patient states as follows:

`On 23 and 24 March 1983 I was beaten up for a period of about thirty-six hours. I was repeatedly punched and kicked mainly in the abdomen, on the head and on the face.’

SYMPTOMS COMPLAINED OF AT THIS TIME:

The patient complains of the following symptoms: - pain in the left ear; - buzzing in the ears; - headache; - pain in the lumbar region; - abdominal pain; - [illegible].

CLINICAL EXAMINATION CARRIED OUT ON TODAY’S DATE

- Weight: 60kg - Height: 1m65 - Blood pressure: 13/8 - Pulse: 72 beats a minute.

Examination of the face and the skull:

Mr Tomasi wears corrective lenses for myopia.

On examining him we noted the following:

- a slight bruising of the upper left eyelid, purplish in colour, 2cm in length; - minor abrasions 3mm in diameter: 1 - at the level of the right temple, 2 - above the right eyebrow.

On continuing the examination of the face we observed:

- the area of the masticatory muscles was particularly sensitive on palpation, especially on the right; - elsewhere, the ocular autokinesis was normal; - the examination of the surface sensitivity of the face was normal;

- facial motility was normal.

Further examination revealed:

- pronounced, diffuse erythema in the auricle of the left ear; - auditory capacity appeared normal, tested by the ticking of a watch and whispering.

Thoraco-abdominal examination:

Examination showed:

- a number of cutaneous abrasions a few millimetres in diameter, located in the area of the right hypochondrium, the epigastrium, the right lower thoracic region and the left parasternal region, close to the metasternum; - otherwise, pulmonary auscultation, palpation and percussion of thorax normal; - likewise examination of the abdomen revealed a supple stomach, no pain; - examination of the external genital organs showed no bruising, no haematoma, no scar, no trace of traumatism.

Examination of the upper members:

- On the left arm, postero-internal face, at the middle part of the arm, a bruise 8cm in length, 4cm in width, oval- shaped.

This bruise was a yellowish colour in the middle and greenish at the periphery.

- There were in addition two small bruises near to the first bruise, of a circular shape, about 4mm in diameter, also of a greenish colour.

Examination of the lower members:

Examination entirely normal.

Neurological examination:

- Romberg test: negative - No deviation of index finger - Muscular strength [illegible] intact - Tendon reflexes present and symmetrical - Sensitivity: normal - Co-ordination: normal.

DISCUSSION AND CONCLUSION

After questioning and carrying out a full clinical examination of Mr Félix Tomasi, we noted the following injuries:

- two bruises, a small one on the left eyelid and a larger one on the left arm;

- in addition, there were abrasions spread out over the thoracic and parasternal region and on the left temple and right eyebrow. These abrasions were of minimal size.

The pains and buzzing in the ear require an opinion from an ear, nose and throat specialist.

The colouring of the bruises makes it possible to fix the date of the originating traumatism at between four and eight days previously.

The bruise on the left arm could be the result of strong manual and digital pressure. The bruise to the left upper eyelid might suggest the shape of the upper frame of the spectacles worn by Mr Tomasi.

The cutaneous abrasions noted do not indicate a specific traumatic origin.

We did not find any scar, any burn mark, or any other injury capable of suggesting that acts of torture had been committed."

On 21 April 1983, at the investigating judge’s request, the two doctors filed a further expert opinion. In this they concluded: "Mr Félix Tomasi qualifies for temporary total incapacity of two days".

On 1 July 1983 Judge N’Guyen interviewed the applicant in his capacity as a civil party in criminal proceedings. Mr Tomasi made the following statement:

"- ... I think that we arrived at the police station at around midday. They began to question me and typed the first record. I said that I was an active member of the CCN. They asked me if I knew why I was there. I replied that it was not the first time that they had detained members of the CCN.

- It was at that moment that they began to hit me; Superintendent [D.] slapped me repeatedly. Each time he came into the office he egged his men on. He said that they had to make me talk and that they had to use every means of doing so.

He hit me throughout the two days of police custody.

- His deputy [A.] also hit me. He used forearm blows to the stomach, saying that that left no mark. He pulled me by the hair and knocked my head against the wall.

There were others there but I don’t know their names: there was a small, dark-haired man, who I think was called [G.]. He slapped me and punched me.

I can also give you the name of [L.] because he told me his name.

There were others too, but I cannot name them.

These men hit me continuously except when I was speaking. As soon as I stopped speaking they hit me.

- I’d like to make clear that I had my hands handcuffed behind my back and I had to remain standing fifty centimetres from the wall. That started at the beginning of the police custody. The body search was not carried out on the ground floor but on the second floor.

- I remember that there was also a man who was with [A.], of the same height, balding. He too hit me throughout the police custody. He took my head and knocked it against the wall.

- I had no rest the first night or the second.

- I was questioned by about fifteen police-officers who took it in turns. Sometimes they were three; often they were between ten and fifteen. I spent almost forty-eight hours in the same office.

- I was taken down again on 25 March around six in the morning. Until then I had no rest, I had neither eaten nor had anything to drink.

- The first evening I asked for food and drink. The policemen gave me nothing. The following day, as I had asked to see a doctor, he came. I told him that I had been beaten continuously for more than twenty-four hours, that I had not eaten or drunk and that I was being dealt with by torturers. I made him note the marks of the blows to my stomach and face. He did not reply. He took my blood pressure. He told the policemen that I could stand up to it. Indeed I have written to the medical association on this point. When I told him that I had had nothing to eat, he looked at the policemen.

The policemen looked embarrassed and asked me what I wanted. I said that I would like a cup of coffee and a sandwich. They refused to give me the coffee and told me that I would have it if I talked. The sandwich was thrown into the dustbin. It was not until the following morning that the municipal police-officers (l’Urbaine) gave me three or four coffees with croissants and chocolate rolls. That is why when I arrived at the court house I was in a very agitated state.

- I should also like to say that police-officer [L.] took his pistol out of his belt; it was loaded, and held it to my temple and my mouth. He told me to talk. I replied that I couldn’t make things up. He read me the records of the interrogations of the others. He told me that I should say the same thing.

- After that, [G.] spat at me about ten times in the face and slapped me.

- The torturer [D.] often came into the office and asked several times `you haven’t undressed him yet?’

- At nightfall they took me into another office. It was still on the second floor but couldn’t be seen into from outside. There I was completely stripped. This happened during the second night. I was completely naked, in my socks. [D.] arrived; he asked me why they hadn’t taken off my socks. He slapped me and continued to question me like that with the doors and windows open. It was a cold March night. I repeat that in the room where I had been put I couldn’t be seen from the outside. In the other room, they were careful to lower the metal blind when they turned the light on.

- At one moment I was allowed to sit down. That is when [B.] arrived. He took me by the shirt or jacket and pushed me. He had the handcuffs with which my hands were bound behind my back taken off and made me sit down. He told all the police-officers and the superintendent to leave. He asked me if I wanted anything. I told him that I would like to go to the lavatory and wash myself. He let me go; he then spoke to me for an hour. We spoke together as we are speaking today.

- That happened on the 24th at around 8 or 10 o’clock in the evening. [B.] left. They put back the handcuffs and continued to hit me.

- I should also say that my arms and legs were numb. I was sometimes hit so much that I fell to the ground. The policemen made me get up by kicking me and hitting my head against the wall.

- There were also threats to my family. They threatened to blow up the flat where my parents live. They told me about a woman from Lumio who had been blown up and who had been injured and said that they would do the same thing to my parents to kill them. They also told me that they would kill the families of my brother and my sister.

- Police-officer [L.] told me that he would make me close the shop. That it would be French people who would buy it. He told me that he would make all the Corsicans leave. He told me that he would also blow up the shop.

- They made threats against me too. The torturers threatened to kill me. They told me that they would take me to the Legion camp at Calvi and that they would leave me to the legionaries.

Many other things happened but in one hour it is impossible to recount everything that happened over forty hours.

[A.] called me a left-winger. He said that he was sure that I had voted for Mitterrand and that this was the result. They also said that they were about fifteen police- officers who were reliable and that I had better not lay a complaint. They told me that it wasn’t the same for the municipal police-officers because there were sympathisers among them and they weren’t sure of them.

I would like to say that if I am released, because I am innocent, if something happens to me, it won’t be necessary to look any farther. They told me that if I were freed, they would deal with me."

By a letter of 3 July 1983 the applicant’s lawyer requested the investigating judge to organise a confrontation between his client and the officers who had taken part in the interrogations; he also suggested that the judge should take evidence from the four persons who had been held in custody at the same time because "they could have heard or seen some of the ill-treatment inflicted at Bastia police station", as well as Dr Vellutini "who was asked to examine Mr Tomasi, who had complained of having problems with his ears". In addition, he asked that the record of the applicant’s first appearance before Judge Pancrazi be included in the case-file.

The participants in the proceedings did not supply either the Commission or the Court with information regarding any investigative measures which may have been taken between 1 July 1983 and 15 January 1985.

On 31 March 1983 the Bastia public prosecutor submitted an application to the criminal division of the Court of Cassation requesting that the "court responsible for the investigation or trial of the case" be designated. He was acting pursuant to Article 687 of the Code of Criminal Procedure, which concerns cases in which "an officer of the police investigation department is liable to be charged with a criminal offence, allegedly committed in the area in which he performs his duties, whether or not in the performance of those duties".

On 27 April 1983 the Court of Cassation rejected the application, because it did not specify either the names or the position of the persons who were liable to be prosecuted as a result of Mr Tomasi’s complaint.

On 15 January 1985 the Bastia public prosecutor again applied to the criminal division, seeking the designation of the competent court.

On 20 March 1985 the Court of Cassation gave its decision. It declared void the investigative measures carried out after 1 July 1983, the date on which the applicant as the civil party in criminal proceedings had identified the persons whom he accused.

In addition, it instructed the Bordeaux investigating judge to conduct the investigation into the applicant’s complaint.

On 23 April 1985 the Bordeaux public prosecutor lodged an application for the opening of an investigation and the President of the Bordeaux tribunal de grande instance appointed an investigating judge, Mr Nicod.

The latter interviewed Mr Tomasi on only one occasion, on 5 September 1985.

On 24 September he added to the file the certified copies of several documents from the file opened in Bastia, in particular the records of the police custody and of the first appearance before the investigating judge as well as the expert medical reports.

By a letter addressed to the judge on 4 October, the applicant requested a confrontation with the police-officers who had interrogated him.

On 13 December 1985 and 13 January 1986 the investigating judge interviewed as witnesses persons who had been held in police custody on the same premises and at the same time as the applicant. Mr Moracchini stated that he had seen the applicant on the fourth day at Bastia Prison and had noted that he had marks on his abdomen and that an ear was running.

Mr Nicod was appointed to a new post and the President of the Bordeaux tribunal de grande instance replaced him on 7 January 1987 by another judge, Mr Lebehot.

On 13 January 1987 the latter issued a commission rogatoire to the Director of the General Inspectorate of the National Police instructing it to undertake a thorough investigation.

Fifteen police-officers who had taken part in the arrests, searches and interrogations were interviewed between 3 and 24 February 1987. None of them admitted having assaulted the persons held in police custody and none of them was confronted with Mr Tomasi.

The results of the commission rogatoire reached the court on 6 March 1987.

On 23 June 1987 the investigating judge issued an order finding that there was no case to answer. He cited the same grounds as those set out in the submissions made the previous day by the Bordeaux public prosecutor:

"... in view of the formal and precise denials by the officers concerned, the accusations made by the complainant, even if they are supported by a few objective medical observations, cannot in themselves constitute serious and concurring indications of guilt such as could justify one or several persons being charged."

By a letter of 26 June 1987 Mr Tomasi appealed from the order finding that there was no case to answer to the indictments division of the Bordeaux Court of Appeal. He complained among other things that there had been no confrontation with the police-officers and that the sequelae of his police custody had not been taken into account, in particular the fact that his eardrum had been perforated as was shown by subsequent examinations.

On 12 October he wrote to the President requesting that a confrontation be organised.

The indictments division gave its decision on 3 November 1987. It allowed the applicant’s appeal and, before ruling on the merits, ordered further inquiries.

On 19 January 1988 the judge with responsibility for these inquiries issued a commission rogatoire to the Director of the General Inspectorate of the National Police. Three other police- officers were thus interviewed, as well as four persons - including Mr Filippi - who had been in police custody at the same time as Mr Tomasi, and the ear, nose and throat specialist - Dr Vellutini - who had examined him in April 1983.

On 28 January 1988 Mr Filippi stated that he had seen the applicant on the morning of 25 March 1983. Mr Tomasi’s face had been "bruised and swollen", his hair had been "dishevelled", he had had "bruises on the chest, on the abdomen and under his right armpit"; he had complained that he had been "beaten all the time" and he had "even taken a tooth out of his pocket".

On 25 February 1988 Dr Vellutini made the following statement:

I carried out a medical examination of Mr Félix Tomasi as an outpatient at Bastia Hospital. I cannot specify the date, but it was in 1983. I treated him for an ear infection and possibly a perforated eardrum. I examined him once or twice, no more than that. I have already told this to the investigating Judge N’Guyen in his chambers. My examination was part of an ordinary consultation and I never issue a medical certificate in those circumstances; I merely treat the patients who are brought to me.

On 18 April 1988 the judge submitted the results of the further inquiries.

On 12 July 1988 the indictments division upheld the order finding that there was no case to answer, on the following grounds:

There is no doubt that Antoine Filippi, who was held in police custody at the same time as Tomasi, maintained that he had noticed in the hall of the police station that the latter’s face had been `bruised and swollen’ and that subsequently he had `personally seen that he had bruises on the chest, abdomen and under the right armpit’;

His co-accused Joseph Moracchini had for his part stated that Tomasi `had all his chest grazed and that there was liquid running from an ear’;

These statements add somewhat to the observations made by the investigating judge himself when Tomasi came to his chambers, namely the presence of bruises on his chest and a redness under the left ear, as well as those of the doctors designated at various stages in the proceedings;

During the police custody, on 24 March 1983 at 11 a.m., Doctor Gherardi examined Tomasi, who complained to him that he had been beaten, but he did not personally observe anything at that stage.

When he arrived at the prison, on 25 March 1983, Tomasi was seen, as part of the systematic check-ups of detainees, by the Senior Medical Officer, Dr Bereni, who noted the presence of a haematoma behind the left ear spreading slightly down towards the cheek and slight superficial scratches on the chest and took note that the applicant reported pain in the head, the neck, the legs, the arms and back, without any objective symptoms.

An expert, Dr Rovere, appointed by the investigating judge, examined Tomasi on 26 March 1983 at 12 noon and noted that he had superficial bruising on the left upper eyelid, on the front of the chest and in the epigastric region and that of the right hypochondrium, on the left arm and the left ear, as well as two cutaneous abrasions, barely visible, on the right temple; the expert stated that the red colouring of the bruises with a purple peripheral halo made it possible to fix the date of their occurrence as between two and four days before the examination and stressed that the fact that abrasions and bruises were present simultaneously gave grounds for affirming their traumatic nature but did not indicate the actual cause of the traumatism; he fixed at three days the duration of the temporary total incapacity.

The expert report which was entrusted to Dr Rocca and Dr Ansaldi, in connection with the investigation opened against persons unknown ... [see paragraph 46 above], revealed in the course of the examination carried out on 29 March the presence of two bruises, one a small one on the left eyelid capable of suggesting the shape of the upper frame of the applicant’s spectacles and the other, larger, on the left arm, being possibly the result of very strong manual and digital pressure, as well as abrasions spread out about the thoracic and parasternal regions, on the right temple and the right eyebrow, which did not indicate any specific traumatic cause.

The possibility that the applicant had a perforated eardrum and a bleeding ear was not expressly confirmed by Dr Vellutini, an ear, nose and throat specialist, and was expressly denied by Drs Rovere and Bereni.

In any event a comparative study of the various observations made by several doctors and experts shortly after the supposed date of the acts of violence of which Tomasi complained showed that there was a real discrepancy between such violence (punches and kicks; forearm blows; head hit against the wall for nearly forty hours) and the slight nature of the traumatisms the origin of which is in dispute and cannot be determined.

The officers of the criminal investigation police concerned expressly deny the accusations.

Any confrontation appears at this stage pointless.

There is doubt as to the truth of Tomasi’s accusations."

On 21 July 1988 Mr Tomasi filed an appeal on points of law which the criminal division of the Court of Cassation declared inadmissible on 6 February 1989 on the following grounds:

"On the basis of the grounds given in the contested judgment the Court of Cassation is satisfied that, in upholding the order in question, the indictments division, after having analysed the facts contained in the complaint, set out the grounds from which it inferred that there was not sufficient evidence against anyone of having committed the offence of assault by officials in the performance of their duties;

The appeal submission, in so far as it amounts to contesting the grounds of fact and law relied on by the judges, does not contain any of the complaints which, under Article 575 [of the Code of Criminal Procedure], a civil party in criminal proceedings is authorised to formulate in support of an appeal on points of law against a decision that there is no case to answer by the indictments division where no such appeal has been filed by the prosecuting authorities."

At Mr Tomasi’s request, Dr Bereni, who was still the Chief Medical Officer at Bastia Prison, drew up a certificate on 4 July 1989, which he gave to the applicant in person "for the appropriate legal purposes". This document was worded as follows:

"I, the undersigned, Dr Jean Bereni, ... hereby certify that I examined the X-rays taken of Mr Tomasi at Toga Bastia Hospital on 2 April 1983.

The X-rays of the left temple show a thickening of the external auditory meatus with a perforation of the eardrum and the presence of a haematoma behind the eardrum.

The special-angle X-rays (Hitz) of the facial structure show, at the level of the bite of the upper left maxillary, the absence of the first molar.

Following these examinations Dr Vellutini, the senior consultant in the ear, nose and throat department, prescribed ear drops (Otipax) and I myself prescribed painkillers and sleeping-pills."

In reply to a letter of 26 August 1991, the Director of Bastia Regional Hospital communicated to the applicant the following details:

"(a) The additional investigations carried out have not revealed any new information of a medical nature in addition to that mentioned in my attestation of 4 July 1989 as regards your visit to Bastia General Hospital as an outpatient in the ear, nose and throat department, probably on 1 April 1983.

(b) At the time of your visit the former Toga Hospital did not have a structured system for dealing with outpatient consultations in the specialised departments; in these circumstances, in the case of mere visits without hospitalisation for an examination by a specialist, a medical record was not systematically drawn up (Dr Vellutini, who at the time was an ear, nose and throat specialist at the hospital, when contacted by my department in connection with your case, was not able to provide any further information which he might have remembered).

(c) In fact it is highly probable that the X-ray or X-rays concerning you were (as continues to be the practice in respect of detainees who are not hospitalised) immediately handed over to the persons accompanying you to be given to the medical service of the prison, without a copy being kept at the hospital.

(d) Moreover - in the unlikely event of medical documents concerning you having been filed - the move to new premises of the former hospital and the opening of a new hospital, in 1985, involved the multiple transportation of a considerable volume of files and documents, which could inevitably have resulted in the files being disturbed.

(e) The search for documents concerning Mr Moracchini and Mr Pieri was likewise fruitless.

In any event I find it hard to see how an action which, as you suggest, might be brought against Bastia Hospital, either in the form of an application for an interlocutory injunction or on the merits, would make it possible to discover medical documents, whose presence in the archives is, to say the least, highly improbable and which have been the subject of thorough, albeit unsuccessful, searches."


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing;Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Just satisfaction reserved

The applicant, Oferta Plus S.R.L., is a company incorporated under Moldovan law.

The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to the applicant company, a Moldovan State-owned power distribution company called Moldtranselectro, a Ukrainian State-owned power distribution company and a Ukrainian private company. The agreement to which Oferta Plus was a party provided, inter alia, that it would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment.

On unspecified dates between 1997 and 1998 the applicant company paid over USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine.

On an unspecified date Moldtranselectro paid the applicant company MDL 189,869,277.

On 3 March 1998 the Government of Moldova adopted Decision no. 243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions.

On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a nominative Treasury bond (“Treasury bond”) with a value of MDL 20,000,000 in favour of Oferta Plus.

On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000 in favour of the applicant company, payable by 10 July 1998. The Treasury bond provided that the applicant company had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions.

The applicant company presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity.

In October 1998 the applicant company initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 13 above while Moldtranselectro declined all responsibility.

On 27 October 1999 the Chisinau Economic Court found in favour of the applicant company and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court considered that the fact that Moldtranselectro had failed to comply with its obligation in the Treasury bond was not in itself enough to absolve the Ministry of Finance from its obligation to pay. The court also decided to absolve Moldtranselectro of any responsibility.

Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to the applicant company in November 1999.

On 14 February 2000 the applicant company officially requested a bailiff to start the enforcement procedure under the warrant.

On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted. The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond.

On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions. The failure of Moldtranselectro, which was a State company, to fulfil its obligations vis-à-vis the Ministry of Finance by presenting it with the documents required by the latter, could not affect the rights of the applicant company, which had paid for electricity supplied from Ukraine. It noted that the Treasury bond did not contain any provision making the payment dependent on the fulfilment of Moldtranselectro's obligations towards the Ministry of Finance. The court also noted that the applicant company had on many occasions asked the Ministry of Finance for payment, but that the Ministry had refused and had asked for the documents which should have been presented by Moldtranselectro. The court considered the Ministry of Finance's request to be unlawful and argued that, according to the law, it was Moldtranselectro that should have presented the documents.

In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to the applicant company. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. The fact that Moldtranselectro had failed to comply with its obligations to the Ministry of Finance could not have had any influence on the right of the applicant company to be paid.

On 19 June 2003 the applicant company sold a part of the Ministry's debt, amounting to MDL 291,801, to a third company.

Since the judgment of 27 October 1999 had still not been enforced, on 26 December 2003, at the applicant company's request, the Ministry of Finance agreed to conclude an agreement according to which the Ministry would pay MDL 2,000,000 each month from January to October 2004 in exchange for the applicant's promise not to initiate further claims for damages.

Between January and March 2004 the Ministry paid MDL 4,000,000 to the applicant company.

On an unspecified date the Ministry paid MDL 291,801 to a third company (see paragraph 21 above).

The Ministry of Finance then stopped making the payments, and on 14 April 2004 the applicant company informed the Government Agent that it had introduced an application with the Court complaining of the failure to enforce the judgment.

On 26 April 2004 the Government Agent informed the Ministry of Finance about the applicant company's application with the Court and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”.

On 11 May 2004 the Ministry of Finance paid MDL 1,000,000 to the applicant company. There were no further payments after that date.

On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of the applicant company to be unlawful, but that it had complied with it partially, so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice.

On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows:

“...during the proceedings [between the applicant company, Moldtranselectro and the Ministry of Finance] the applicant company and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid.

No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour.

In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.”

An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, the applicant company had destroyed the accounting documents after three years.

The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of the applicant company. The request referred to Article 449 of the Code of Civil Procedure (see paragraph 61 below) but did not specify any reasons for revision.

On 12 July 2004 the applicant company submitted to the Supreme Court its observations on the revision request, in which it argued, inter alia, that the Ministry had not indicated any reasons for revision, that the revision request was time-barred and if the request were to be upheld this would amount to a breach of the principle of legal certainty.

On the same date the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of the applicant company and ordered the reopening of the proceedings. It relied on the Prosecutor General's office's letter of 8 June 2004 (see paragraph 29 above), which had been submitted by the Ministry during the hearing. The Plenary considered the letter to be a new and essential fact or circumstance which was unknown and could not have been known earlier, in accordance with the provisions of Article 449 (c) of the Code of Civil Procedure. In particular it considered new and essential the submission of the Prosecutor General's Office that “by 24 April 1998 only MDL 6,226,504 had been paid”. The Supreme Court of Justice did not address in its judgment the objections raised by the applicant company.

On 3 November 2004 the Economic Court of Appeal held a hearing in the reopened proceedings. In contrast with the first round of proceedings, Moldtranselectro sided this time with the Ministry of Finance and argued that Oferta Plus's action should be dismissed because it (Moldtranselectro) had already covered the entire debt for the electricity supplied, including MDL 20,000,000 provided in the Treasury bond, by paying Oferta Plus MDL 189,869,272 on an unspecified date.

The court upheld the applicant company's action and ordered the Ministry of Finance to pay it MDL 20,000,000 in accordance with the Treasury bond. It based its judgment on the fact that the supply of the electricity and the cost of the energy supplied were not disputed by the parties. Referring to the electricity supplied to state institutions, it found that by 1 March 1998 they had consumed MDL 27,551,000 worth of electricity imported from Ukraine with the participation of Oferta Plus.

In the court's view, the Treasury bond constituted an incontestable obligation on the Ministry of Finance towards Oferta Plus, which could not depend on the fulfilment of third-party obligations.

Referring to the submissions of Moldtranselectro concerning the payment of MDL 189,869,272 to the applicant company, the court argued that that amount represented USD 33,133,404 at the date of supply of the electricity, but not at the date of payment of the MDL 189,869,272. The court held that at the date of payment of the above amount by Moldtranselectro, USD 33,133,404 was worth MDL 210,692,688.

Referring to the amounts indicated by the Prosecutor General's Office in its letter dated 8 June 2004, which served as a basis for the revision of the final judgment of 27 October 1999 (see paragraph 29 above), the court found that those figures were related to a completely different matter and were irrelevant to the case before it.

The Ministry of Finance appealed against this judgment to the Supreme Court of Justice.

On 10 February 2005 the Supreme Court of Justice upheld the Ministry's appeal and dismissed the applicant company's action against it. While not contesting the findings of the first-instance court (see paragraph 33 above) and while confirming that electricity was supplied to Moldtranselectro and consumed, inter alia, by state institutions, it made its own calculations directly in USD without converting the amounts to MDL, and came to the conclusion that the entire debt owed by the State to the applicant company had been covered by the payment of MDL 189,869,272 by Moldtranselectro to the former. The Supreme Court also ordered the applicant company to pay the court fees of MDL 600,000.

On 17 March 2005 the Ministry of Finance lodged with the Economic Court of Appeal a request for the return of the MDL 5,291,801 which had been paid in accordance with the judgment of 7 February 2001. The applicant company argued, inter alia, that the request had been lodged out of time and that in any event the amount of MDL 291,801 had never been paid to it, but had instead been paid to a third person (see paragraphs 21 and 24 above).

By a final judgment of 29 September 2005 the Supreme Court of Justice upheld the request of the Ministry of Finance. It dismissed the applicant company's submission concerning the time-limit and ignored its submission concerning the MDL 291,801 which had been paid to a third person.

On 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 28 above) initiated criminal proceedings against the applicant company and against the head of Moldtranselectro on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 29 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions.

On 15 April 2005 the Chief Executive Officer of the applicant company (“C.T.”) was questioned by the Prosecutor General's Office.

On 20 April 2005 the offices of the applicant company were searched and some documents seized.

On 25 October 2005 the criminal proceedings were discontinued. The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following:

“According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866...

The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. The transfers [of MDL 5,000,000 by the Ministry of Finance] to Oferta Plus's accounts were carried out in accordance with court judgments...

Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.”

On 8 December 2005 all the bank accounts of the applicant company were frozen by a bailiff to ensure the restitution of MDL 5,291,801. The company had to make all of its employees redundant, except for C.T.

On 15 February 2006 the Court communicated the present case to the Moldovan Government.

On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005. He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. He also noted that Oferta Plus had transferred a part of the debt to third companies in exchange for money and goods. He requested, in particular, that an international fact-finding mission be sent to Ukraine and that the books of the applicant company be seized.

On 11 May 2006 C.T. was declared a suspect in the criminal proceedings. In a decision of the same date, it was reiterated that on 1 January 2001 Moldtranselectro's debt to Oferta Plus for the electricity supplied had been MDL 38,454,671. However, the electricity for which Moldtranselectro owed this amount had not been supplied to state institutions.

On 9 August 2006 a prosecutor issued a decision by which C.T. was officially indicted for misappropriation of MDL 5,000,000 and attempted misappropriation of MDL 15,000,000. The charges against him were based on the fact that the energy supplied to Moldtranselectro, for which the applicant company had paid the Ukrainian private company, had not been consumed by state institutions. The prosecution argued that a Treasury bond could be issued by the Ministry of Finance only for energy supplied to state institutions. Contrary to that provision, Moldtranselectro had asked the Ministry of Finance on 25 March 1998 to issue a Treasury bond in favour of Oferta Plus and such a bond had been issued by the Ministry of Finance on 27 March 1998.

After that, Oferta Plus, in the person of V.L, its former chief executive, making use of the favourable environment created for his company by the illegal actions of Moldtranselectro, and seeking to obtain MDL 20,000,000, had initiated civil proceedings against the Ministry of Finance, and in the absence of any proof that electricity had been supplied to state institutions, illegally obtained judgments in its favour.

However V.L. could not fulfil his criminal intention of misappropriating MDL 20 million for reasons beyond his control (he was killed).

The criminal intention to misappropriate MDL 20,000,000 was continued by C.T., the present Chief Executive Officer of Oferta Plus.

Despite the fact that on 23 May 2002 Moldtranselectro owed Oferta Plus only MDL 3,948.49, C.T. had pursued his criminal intention by pressing the Ministry of Finance repeatedly to comply with the judgment of 27 October 1999. As a result, on 26 December 2003 the Ministry of Finance had concluded an agreement with him and later transferred MDL 5,000,000 to Oferta Plus.

Later, C.T. transferred the money to the account of a third company, which also belonged to him, from where it was transferred to his wife's personal account and later withdrawn in cash.

Referring to the reopened proceedings which followed the judgment of the Plenary Supreme Court of 12 July 2004, the prosecutor noted that, despite being well aware that Oferta Plus had not paid for energy supplied to state institutions, C.T. had managed to obtain a judgment in favour of Oferta Plus before the first-instance court. C.T. had presented evidence which, while showing the payment for electricity, did not prove that the electricity had been supplied to state institutions.

Also, on 9 August 2006, according to the applicant company, C.T. was told by the investigating officer, Eugen Bîcu, that no criminal charges against him would have been brought had he contented himself with MDL 5,000,000.

On the same date C.T. was arrested and a request for him to be remanded in custody for thirty days was addressed to the Buiucani District Court.

A detention order for a period of thirty days was issued by the investigating judge of the Buiucani District Court on the same day. The judge argued, inter alia, that C.T. had attempted to influence a witness. He relied on a transcript of a telephone conversation of 12 May 2006, which, however, was never disclosed to the defence, despite the latter's requests.

C.T. appealed against the detention order and argued, inter alia, that the criminal proceedings against him had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. He complained that he and his lawyers had not been allowed to see the transcript of the telephone conversation which was the main reason for his detention and insisted that he had not made any attempt to influence any witnesses.

He also argued that he had become the CEO of Oferta Plus only in late 2003 and thus had not even been involved in the transaction between the applicant company and Moldtranselectro and that in any event the electricity had been supplied to Moldtranselectro, which was a State company and held a monopoly on distribution of electricity at that time. The applicant company could not know who were the final consumers of the electricity.

On 15 August 2006 C.T.'s appeal was dismissed. The Court of Appeal did not give any assessment of the argument concerning C.T.'s lack of access to the transcript of the telephone conversation.

In the meantime, on 14 August 2006, the applicant company's lawyer in the present case applied to the Centre for Fighting Economic Crimes and Corruption (“CFECC”) to visit C.T. He pointed out that he was Oferta Plus's lawyer in the proceedings before the Court and submitted that he needed to see C.T. in order to prepare with him the observations due on 22 August 2006. He asked that the meeting between them take place without a glass partition separating them, since he knew that there was such a partition in the CFECC lawyer-client meeting room. He submitted that both he and C.T. had reason to believe that conversations through the glass partition in the CFECC meeting room were intercepted and that they were convinced that the criminal proceedings against C.T. had been instituted in order to discourage Oferta Plus from pursuing its application before the Court. He argued that their separation by the glass partition, especially in such conditions, would not allow them to speak freely and would seriously hinder his ability to represent the applicant company before the Court. The lawyer further argued that C.T. was not a violent person and that there was no risk that he would attack his lawyer. In any event he, the lawyer, would bear responsibility for any attack. He also declared that he would allow the CFECC representatives to search him, except for the documents he would be carrying, in order to ensure that he had no forbidden objects on his person.

After repeated requests by telephone, on 18 August 2006 the lawyer was finally allowed to see C.T. in the CFECC lawyer-client meeting room, separated by the glass partition. In these circumstances, C.T. refused to discuss any matters relating to pecuniary damage and asked his lawyer to do likewise because the conversation would have related to the whereabouts of the company's accounting documents.

During the conversation with C.T., the lawyer informed him that the charges against him were not consistent with the findings of the civil courts in the civil proceedings between Oferta Plus, the Ministry of Finance and Moldtranselectro. The next working day, on 21 August 2006, the criminal investigator E. Bîcu went to the archives of the Economic Court of Appeal and took the case file in the civil proceedings. The case file was returned to the archives on 4 September 2006.

On 18 August 2006, in the afternoon, the applicant's lawyer telephoned the Government Agent's Office and asked for assistance in seeing C.T. without a glass partition. His request was not successful.

On 21 August 2006 the lawyer telephoned the investigating officer, and asked him for another meeting with C.T. He repeated his request to see C.T. without the glass partition, but this request was again rejected. He was told that the conditions for meetings between lawyers and clients in the CFECC detention centre were not contrary to the law. A meeting between the lawyer and C.T. took place the next day.

On the same day the CFECC made public a press release according to which it had discovered, in the context of the criminal investigation against C.T., an illegal scheme for misappropriation of budgetary funds. A similar item, with images of C.T., was broadcast on the evening news bulletin of Moldovan national television.

On 29 August 2006, the applicant company's lawyer wrote to the Buiucani District Court that he was the representative of Oferta Plus in the proceedings before the Court. He submitted that, since his client believed that the criminal proceedings against C.T. and his subsequent detention served the purpose of discouraging the pursuit of the Oferta Plus v. Moldova application before the Court, on 22 August 2006 a formal complaint under Article 34 of the Convention had been lodged with the Court. He noted that the main piece of evidence relied upon by the courts in placing C.T. in detention was a transcript of a telephone conversation which allegedly proved his attempt to influence a witness. Since C.T.'s defence had not been presented with a copy of that transcript during the pre-trial detention proceedings, he formally requested a copy of it for the purpose of presenting it to the Court in support of the Article 34 complaint.

On 5 September 2006 Mr Gribincea's request was rejected by the Buiucani District Court on the ground that he was not C.T.'s lawyer in the criminal proceedings against him. The court also noted that in any event the materials of the criminal case file were not usually disclosed to the defence unless the criminal investigator decided otherwise.

On 7 September 2006 the investigation was completed in the criminal proceedings and the case was sent for examination on its merits to the Centru District Court. On the same date, C.T. told the applicant company's lawyer that he had been told that he would be convicted before the Court adopted a judgment in the present case.

In a letter of 29 November 2006, the applicant company's representative informed the Court that C.T. had been released from detention on 14 November 2006.

The relevant provisions of the old Code of Civil Procedure, concerning enforcement, read as follows:

An enforcement warrant shall be issued to the plaintiff by a court, after the judgment has become final...

The bailiff shall start the enforcement of a judgment upon the request of [one of the parties to the proceedings]...

The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order.

The provisions of the new Code of Civil Procedure concerning the revision of final judgments read as follows:

“Grounds for revision

Revision may be requested:

c) When new and essential facts or circumstances have been discovered that were unknown and could not have been known earlier;”

“A revision request may be lodged:

c) within three months from the date on which the person concerned has come to know essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier....”

It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass. Both plates have small holes pierced with a drill; however the holes do not coincide, so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for documents to be passed between the lawyer and his client.

The domestic courts have ruled on complaints about lack of confidentiality in the CFECC lawyer-client meeting room in the cases of Modârcă (no. 14437/05) and Sarban v. Moldova, no. 3456/05, 4 October 2005. On 2 November 2004 a judge of the Buiucani District Court ordered the CFECC authorities to eliminate the glass partition separating lawyers from their clients; however, the CFECC authorities refused to comply with the court order. On 3 December 2004 the same judge revoked the decision of 2 November 2004, arguing that in the meantime she had been informed by the CFECC authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary to ensure the security of the detainees.

On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client under conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004.

Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any proceedings regarding persons detained in the CFECC detention centre until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126).

On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a committee of inspection of the CFECC detention centre. During the inspection they had asked that the glass wall be taken down in order to check that there were no listening devices. They had pointed out that it would only be necessary to remove a few screws and proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration had rejected the proposal.

Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), in so far as relevant, reads as follows:

23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ...

23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ...

23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.