Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8 with regard to monitoring of correspondence;Not necessary to examine Art. 34;No violation of Art. 8 with regard to delay of correspondence;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1966 and is currently detained in the Radom prison.

In July 1996 the applicant was released from prison. On 11 September 1996 the police arrested him. The police suspected that on 10 September 1996 the applicant had committed an armed robbery and rape. At the same time, the police enforced a warrant for the arrest of the applicant issued on 28 August 1996 by the Pruszków District Court (Sąd Rejonowy) in the criminal proceedings against the applicant pending before that court.

On 13 September 1996 the Warsaw District Court remanded the applicant in custody on charges of armed robbery and sexual assault. The court took into account the fact that the applicant was of no fixed abode and that his accomplices had not been arrested.

On 8 November 1996 the Warsaw Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against the District Court's decision to remand him in custody. The Regional Court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him, the risk of collusion, the fact that he was of no fixed abode and was unemployed. In addition, the court observed that the police failed to apprehend the applicant's accomplices and that there was a risk that he would go into hiding. Finally, the court was of the view that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure.

On 10 December 1996 the Warsaw Regional Court extended the applicant's detention until 11 March 1997.

The applicant made an application for release but it was dismissed on 19 December 1996 by the Warsaw Regional Court. It referred to the gravity of the charges brought against the applicant and the existence of serious evidence of his guilt.

Between 20 January and 27 February 1997 the prosecution service decided that it would seek evidence from five expert witnesses and requested the applicant's medical file from a psychiatric hospital in which he had been treated.

On 4 March 1997 the Warsaw Regional Court appointed legal aid counsel to defend the applicant.

On 5 March 1997 the prosecution service received two expert opinions. On 7 March 1997 the District Prosecutor interviewed the victim of rape.

On 10 March 1997 the Warsaw Court of Appeal (Sąd Apelacyjny) allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 May 1997. The court referred to the gravity of the charges against the applicant and the grounds for detention provided in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. Moreover, it noted that one of the co-accused was still in hiding and that immediately after the commission of the alleged crime “there had been an attempt to contact the victim [of the assault]”. The court also agreed with the submissions of the prosecutor that the investigation was not finished because certain forensic tests still had to be carried out, the applicant and another co-accused were still under psychiatric observation, whereas the police was trying to apprehend the third accused. The applicant appealed against that decision to the Supreme Court (Sąd Najwyższy).

Between 8 and 18 April 1997 the prosecution service received two expert opinions and decided to request DNA tests.

On 24 April 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 10 March 1997. It referred to the charges against the applicant and observed that there existed serious evidence of his guilt.

On 29 April 1997 the Warsaw-Ochota Deputy District Prosecutor (Zastępca Prokuratora Rejonowego) replied to the applicant's letter of 23 April 1997 in which he complained about the censorship of his correspondence with the European Commission of Human Rights. The prosecutor advised the applicant about domestic legislation, which allowed the authorities to censor his correspondence.

On 9 May 1997 the Warsaw Court of Appeal allowed the request submitted by the prosecutor and extended the applicant's detention on remand until 11 July 1997. The court relied on the existence of serious evidence of the applicant's guilt and the nature of charges against the applicant. It also considered that the applicant's case did not disclose any of the grounds for release provided by Article 218 of the Code of Criminal Procedure. Finally, the court noted that the prosecution service was awaiting an expert opinion from a forensic expert and that one of co-accused was still in hiding. The applicant appealed against that decision.

On 16 May 1997 the prosecution service received the results of DNA tests. On 18 June 1997 the District Prosecutor interviewed the applicant and decided to modify charges against him.

On 27 June 1997 the prosecuting authorities filed with the Warsaw Regional Court a bill of indictment against the applicant.

On 7 July 1997 the Warsaw Regional Court extended the applicant's pretrial detention until 11 September 1998.

On 9 July 1997 the trial court dismissed the applicant's challenge to the prosecutor who worked on his case. During the two following days the applicant was consulting the case-file.

On 10 July 1997 the Supreme Court dismissed the applicant's appeal against the Warsaw Court of Appeal's decision of 9 May 1997. The Supreme Court relied on the gravity of charges against the applicant, the existence of serious evidence of his guilt and the grounds for detention listed in Article 217 §§ 1 and 2 of the Code of Criminal Procedure. It also pointed out that the Warsaw Regional Court's decision of 7 July 1997 extending the applicant's detention had been taken before the Supreme Court had the opportunity to decide his appeal against the Warsaw Court of Appeal's decision of 9 May 1997 and therefore constituted “an inappropriate practice”.

On 15 July 1997 the applicant's counsel appealed to the Warsaw Court of Appeal against the Regional Court's decision of 7 July 1997. On 25 July 1997 the appellate court rejected the appeal. It pointed out that at the time of his arrest the applicant had been of no fixed abode and had been the subject of the arrest warrant.

In the meantime, on 22 July 1997 the applicant lodged with the Warsaw Court of Appeal an appeal against the Regional Court's decision of 7 July 1997. On 5 September 1997 the Warsaw Court of Appeal dismissed the applicant's appeal. The court relied on a medical opinion confirming that the applicant's medical problems could be treated in prison.

In the meantime, on 20 August 1997 the applicant made an application for release. On 16 October 1997 the Warsaw Regional Court dismissed the application. It relied on a medical opinion. The applicant's appeal against that decision was rejected because it was not provided by law.

On 24 March 1998 the Warsaw Regional Court was informed that the applicant had tried to smuggle a message to his accomplices. However, it was seized by the prison service and included in the court's case-file.

Between 25 November 1997 and 19 May 1998 the applicant on six occasions attended hearings before the Pruszków District Court in the criminal proceedings against him pending before that court.

On 19 June 1998 the Warsaw Regional Court decided to stop the applicant's letter in which he made threats against one of the prisoners. The letter was included in the court's case-file.

On 22 July 1998 the Warsaw Regional Court requested the Supreme Court to extend the applicant's pre-trial detention under Article 222 § 4 of the Code of Criminal Procedure which empowered the Supreme Court to prolong detention beyond two years. The request was based, inter alia, on Articles 209 and 217 § 2 of the Code of Criminal Procedure and referred to the gravity of charges against the applicant, the existence of serious evidence of his guilt and the inability to schedule hearings because of holidays and workload of judges involved in the applicant's case. The request also referred to the fact that the next hearing could not be fixed before evidence is taken from an anonymous witness who could not testify before 3 November 1998.

On 22 July 1998 the first hearing was held before the Warsaw Regional Court. The applicant and his co-accused asked that the hearing be adjourned as they had not been able to prepare their defence. The court allowed the request and adjourned the hearing until 3 November 1998. The court took into account heavy workload of judges, the holiday period and the fact that an anonymous witness could not be heard before that date.

On 28 August 1998 the Supreme Court allowed the Regional Court's request of 22 July 1998 and extended the applicant's pre-trial detention until 15 December 1998. It pointed out that difficulties in fixing hearings caused by holidays and workload of judges could not be considered as grounds for extending pre-trial detention. Furthermore, the Supreme Court agreed with the Regional Court that the applicant's case disclosed the existence of grounds for detention provided in Articles 209 and 217 § 2 of the Code of Criminal Procedure. The Supreme Court concluded that the inability to take evidence from an anonymous witness before 3 November 1998 justified the extension of the applicant's detention under Article 222 § 4 of the Code of Criminal Procedure.

On 3 November 1998 the Warsaw Regional Court held the second hearing in the applicant's case. It took evidence from the victim of sexual assault. The court also made arrangements for taking evidence from an anonymous witness.

On 17 November 1998 evidence was taken from an anonymous witness.

On 19 November 1998 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The Regional Court considered that the fact that the judges were female did not deprive the applicant of a fair trial on charges of sexual assault.

On 23 November 1998 the hearing was adjourned because the prosecution service and witnesses had not been informed about it.

The applicant made a further application for release at the hearing held on 1 December 1998 but it was dismissed by the Warsaw Regional Court on 2 December 1998. The court considered that the applicant's detention was justified by the existence of serious evidence of his guilt, the gravity of charges against him and the fact that he had been of no fixed abode at the time of his arrest. Moreover, the court observed that it had not finished taking evidence from certain witnesses. The applicant's appeal against that decision was rejected because it was not provided by law.

On 2 December 1998 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 4 December 1998 the Supreme Court allowed that request and prolonged the detention until 15 February 1999. The Supreme Court referred to its decision of 28 August 1998 and observed that the trial court still had to take evidence form certain witnesses. In addition, the trial court did not know the address of one of those witnesses, whereas another witness had to be transported to the court from the Łódź Prison.

On 17 December 1998 a hearing took place before the Warsaw Regional Court.

On 22 December 1998 evidence was taken from an anonymous witness.

The applicant made a fresh application for release but it was dismissed on 4 January 1999 by the Warsaw Regional Court. It referred to the nature and the gravity of charges against the applicant and noted that his trial was in the final stage.

On 7 January 1999 the Warsaw Regional Court dismissed the applicant's challenge to the judges trying his case. The applicant's appeal against that decision was rejected because it was not provided by law.

On 12 January 1999 the police informed the Warsaw Regional Court that one of the witnesses for the defence was dead.

On 21 January 1999 a hearing was held before the Warsaw Regional Court. It was adjourned until 3 February 1999 because one of the judges was ill.

On 25 January 1999 the Warsaw Regional Court requested the Supreme Court to further extend the applicant's pre-trial detention. On 10 February 1999 the Supreme Court allowed that request and prolonged the detention until 31 March 1999. It referred to the reasoning of its decision of 4 December 1998. The Supreme Court also noted the difficulties the trial court experienced in taking evidence from one of the witnesses. Moreover, the court considered that because the applicant had been of no fixed abode at the time of his arrest he could interfere with the proceedings if released from detention.

The hearing held on 3 February 1999 was adjourned because the applicant requested that evidence be taken from a new witness.

The next hearing was held on 19 February 1999.

During the hearing held on 15 March 1999 the applicant applied for release from detention but the court dismissed it. The applicant's appeal against that decision was rejected because it was not provided by law.

On 25 March 1999 the Supreme Court prolonged the applicant's detention until 31 May 1999.

During the hearing held on 7 April 1999 the Warsaw Regional Court dismissed the applicant's request that the case be remitted to the prosecution service for further investigation.

The last hearing before the trial court was held on 28 April 1999.

On 4 May 1999 the Warsaw Regional Court convicted the applicant of armed robbery and sexual assault and sentenced him to five years' imprisonment. The applicant appealed against that judgment to the Warsaw Court of Appeal.

On 9 November 1999 the Warsaw Court of Appeal held a hearing. The court dismissed the appeal except for the conviction for armed robbery, which it qualified as robbery without the use of arms.

The Court's case-file contains the following documents pointing to the monitoring of the applicant's correspondence:

(i) the applicant's letters of 5, 22 and 31 January and 7 February 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” (Ocenzurowano) and an illegible signature and also bear a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” (Asesor Prokuratury Rejonowej Warszawa Ochota Grażyna Garboś-Jędral);

(ii) the applicant's letters of 8, 21 and 24 April 1997 addressed to the European Commission of Human Rights are marked with a handwritten note: “Censored” and an illegible signature;

(iii) the applicant's letters of 5 March, 16 May and 3 September 1997 as well as an undated letter received on 19 March 1997 addressed to the European Commission of Human Rights are marked with an illegible signature;

(iv) an envelope mailed by the applicant on 5 September 1997 to the European Commission of Human Rights is marked with a handwritten note: “Censored” and an illegible signature;

(v) a flap of an envelope with the logo of the Council of Europe bears on the inside a stamp: “Assistant Warsaw-Ochota District Prosecutor Grażyna Garboś-Jędral” and an illegible signature;

(vi) an envelope mailed by the European Court of Human Rights on 23 February 1999 to the applicant bears a stamp: “Censored on, signature” (Ocenzurowano dn. podpis), a hand-written date: 5 March and an illegible signature.

The Code of Criminal Procedure 1969, which remained in force until 1 September 1998, listed as preventive measures, inter alia, detention on remand, bail and police supervision. Article 209 of the Code, which set out general grounds justifying the imposition of preventive measures, provided as follows:

“Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Furthermore, the Code of Criminal Procedure allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures. Detention on remand was regarded as the most severe preventive measure. Article 213 of the Code provided as follows:

“A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen, which justify quashing a given measure or replacing it with one that is either more or less severe.”

Article 225 of the Code provided:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

Article 217 of the Code, before it was amended on 1 January 1996, provided insofar as relevant:

“Detention on remand may be imposed if:

there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent domicile, or

there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means, or

the accused was charged with a commission of a criminal offence or acted as a habitual offender, as provided for by the Criminal Code, or

the accused was charged with the commission of an act which constituted significant danger to society.”

Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be quashed, in particular, when:

it may seriously jeopardise the life or health of the accused; or

it would entail excessively burdensome effects for the accused or his family.”

Until 4 August 1996, when the Code of Criminal Procedure was amended, Polish law did not set out any statutory time-limits concerning detention on remand in court proceedings but only in respect of the investigative stage.

Article 222 of the Code of Criminal Procedure, as applicable after 4 August 1996, provided insofar as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.

In particularly justified cases the Supreme Court may, upon the request of the court competent to deal with the case (...) prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

Subsequently, paragraph 4 was extended to include also “other significant circumstances, which could not be overcome by the organs conducting the proceedings”.

On 1 September 1998 the Code of Criminal Procedure 1997 replaced the 1969 Code.

Article 263 of the new Code, insofar as relevant, provides:

“§ 1. During investigation the court which decides about detention on remand shall impose it for a period not longer than 3 months.

§ 2. If the special circumstances of a case made it impossible to conclude the investigation within the time-limit provided in § 1, detention on remand may be prolonged, at the request of the prosecutor and when it is necessary, by:

the trial court – for up to 6 months,

the appeal court – for a further fixed period necessary to conclude the investigation but not longer than 12 months.

§ 3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed 2 years.

§ 4. Detention on remand may be prolonged for a fixed period exceeding periods provided in §§ 2 and 3 only by the Supreme Court at the request of the court dealing with a case (...) – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused as well as other obstacles which could not be overcome”.

Article 89 § 2 of the Code of Execution of Criminal Sentences 1969 provided, in so far as relevant, as follows:

“(...) [the detainee's] correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.”

Rule 33 of the Rules on Detention on Remand 1989, as amended on 29 December 1995, provided, in so far as relevant, as follows:

“(1) A detainee has a right to correspond.

(2) Detainee's correspondence shall be censored by the organ at whose disposal he remains (...).

(3) Correspondence with the Ombudsman and international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, is mailed through the intermediary of [that] organ (...).”

On 1 September 1998 the Code of Execution of Criminal Sentences 1997 replaced the 1969 Code. The relevant part of Article 103 § 1 of the 1997 Code provides as follows:

“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”

Article 105 § 4 provides:

“The prison governor shall make decisions concerning the stopping or censorship of the correspondence if it is required by the prison security considerations [and] shall inform about it the penitentiary judge and the convict.”

Article 209

“The provisions concerning the execution of sentences shall apply accordingly to the execution of detention on remand, subject to changes resulting from this chapter.”

Article 214 § 1

“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”

Article 217 § 1 reads, in so far as relevant, as follows:

“(...) detainee's correspondence shall be censored by [the organ at whose disposal he remains], unless the organ decides otherwise.”

Article 242 § 5 of reads as follows:

“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”

On 1 September 1998 the Rules of Detention on Remand 1998 entered into force.

§ 36 of the Rules provides:

“The detainee's correspondence, including the correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”

§ 37 provides:

“1. If the organ at whose disposal [a detainee] remains ceases to censor correspondence, it shall be subject to the supervision or censorship by the prison administration, except for cases referred to in Article 73 of the Code of Criminal Procedure and Articles 102 (11) and 103 of the Code [of Execution of Criminal Sentences].

The correspondence of a detainee shall be supervised by the prison administration when necessary in the interest of protecting social interest, the security of a detention centre or requirements of personal re-education.

The supervision referred to in paragraph 2 shall be executed by controlling the content of the correspondence and acquainting oneself with its wording.

The correspondence referred to in Articles 8 § 3, 102 (11) and 103 § 1 of the Code [of Execution of Criminal Sentences] may be only subjected to the control of its content, which shall take place in the presence of a detainee.”

§ 38 provides:

“1. Detainee's correspondence shall be censored or seized by the prison administration in the case referred to in Article 105 § 4 of the Code [of Execution of Criminal Sentences].

Censorship shall mean deleting a part of text or making it illegible, whereas seizing correspondence shall mean not transmitting it to a detainee and placing it in his file.

The decision to censor or to seize correspondence shall be taken by a Governor, who shall inform a detainee about the reasons for censorship or for seizure.

For controlling purposes a copy of the correspondence before it was censored shall be placed in the detainee's personal file; if the detainee consults the file, copies of the correspondence before it was censored and the seized correspondence shall not be made available [to him].”


CASE OF LANCHID HITEL ES FAKTOR ZRT. v. HUNGARY

Remainder inadmissible;Violation of P1-1;Pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant is a company limited by shares with its seat in Budapest.

By way of assignments for consideration, done in October 2001 and July 2002, the applicant acquired – through intermediaries – the debts of V. Rt and M. Rt from the Tax Authority. The debts consisted mostly of unpaid payroll taxes and social security contributions and originated in the period before 1998.

Since the debtors had become insolvent, the applicant brought an action against the State-owned Hungarian Privatisation and State Holding Company (ÁPV Rt) before the Budapest Regional Court in order to recover the assigned claims. Relying on section 328 of the (Old) Companies Act 1988, it argued that ÁPV Rt – the majority owner of the two debtor companies – bore vicarious liability for the outstanding debts.

On 25 September 2003 the Regional Court partly found for the applicant. The court awarded some 47.3 million Hungarian forints (HUF) to the applicant, which corresponded to the debts of V. Rt other than the payroll taxes and social security contributions. It dismissed the action in respect of the latter items. The applicant was obliged to pay HUF 9.6 million to the respondent in legal fees.

The applicant appealed. It claimed 22,482,500 Hungarian forints (HUF) plus accrued interest on account of the remaining debts of V. Rt and HUF 177,975,985 plus accrued interest on account of those of M. Rt.

The Budapest Court of Appeal upheld the first-instance decision on 9 July 2004. The applicant was obliged to pay HUF 3 million as procedural fees.

The applicant lodged a petition for review with the Supreme Court in respect of the social security contributions owed by M. Rt. It submitted that their amount altogether was approximately HUF 160 million – a sum including the principal of HUF 84,515,225 – but susceptible to further taking of evidence in resumed proceedings.

On 5 April 2005 the Supreme Court upheld the Court of Appeal's decision. It was satisfied that ÁPV Rt indeed bore vicarious liability in the circumstances. Relying on Uniformity Decision no. 2/2004.PJE, it held however that – pursuant to sections 3(3) and 25(2) of the (Old) Taxation Order Act 1990 – for the impugned social security contributions to be enforceable by the applicant, a decision should have been issued by the Tax Authority establishing the vicarious liability. For want of such a decision, the contributions could not be enforced by the applicant, since the assignment had not conferred any public law powers on it. The applicant was obliged to pay once more HUF 3 million as procedural fee.

Section 328 of the (Old) Companies Act 1988 provided as follows:

“(1) If [the majority-owner, i.e. controlling] joint-stock company acquires such part of the shares of [the controlled joint-stock company] as exceeding three-fourth of [the latter's] share capital, the board of directors of the controlling ... company ... may give instructions concerning the management of the [controlled] ... company to [its] board of directors, which the latter must carry out (“joint-stock company under direct control”).

(2) The controlling ... company shall bear unlimited liability for the debts of the joint-stock company under direct control.”

Section 3(3) c) of the (Old) Taxation Order Act 1990 (no. XCI of 1990) (as in force at the material time) provides that the Act is to be applied to the payment of social security contributions. Section 25(2) f) provides that, if a taxpayer fails to pay the tax and it cannot be recovered from that taxpayer, the Tax Authority is entitled to the adoption of a decision establishing vicarious liability to cover the outstanding debt. Sections 6(1) and 6(2), 35(2)f) and 120(1)a) of the (New) Taxation Order Act 2003 (no. XCII of 2003) contain identical rules.

The interpretation that assignees cannot claim in civil courts outstanding taxes from those with vicarious liability was upheld by the Supreme Court in Uniformity Decision no. 2/2004.PJE. It considered that, under both Taxation Order Acts, vicarious liability for tax debts was to be established by a decision of the Tax Authority.

However, the above legislation was subsequently repealed by Act no. LVI of 2005. According to the reasoning of the bill, the interpretation of the Supreme Court in Uniformity Decision no. 2/2004.PJE – an economically unjustified misconception of the law running counter to the intentions of the lawmaker – rendered unenforceable and thus worthless those tax debts which could not be recovered in the liquidation of the original debtors. Therefore the legal avenue of a civil action was to be opened for the assignees of such claims vis-à-vis those with vicarious liability, so as to restore constitutionality in terms of the right to access to a court in this context.


Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant was born in 1968 and lives in the town of Shakhty, in the Rostov Region.

On 10 July 1995 the Shakhty Prosecutor's Office instituted criminal proceedings against the applicant and Mr P. for rape and attempted rape of two victims. On 10 October 1995 the proceedings were terminated for lack of evidence.

On 13 December 1995 the decision of 10 October 1995 was quashed and the case was remitted for a further investigation.

On 1 July 1996 the applicant was remanded in custody on suspicion of rape and attempted rape. On an unspecified date he was released. A preventive measure in the form of an undertaking not to abscond was applied both to the applicant and Mr P.

On 1 July 1997 the Shakhty Town Court acquitted the applicant and Mr P. of rape and attempted rape.

On 15 January 1998 the Rostov Regional Court quashed the firstinstance judgment on appeal and remitted the case for a fresh examination.

On 6 August 1998 the Presidium of the Rostov Regional Court quashed the judgment of 15 January 1998 and remitted the case for a new examination in the second instance.

On 26 August 1998 a hearing before the Rostov Regional Court was postponed because the applicant's counsel, Mr K., was occupied.

On 9 September, 14 October and 4 November 1998 the Rostov Regional Court postponed appeal hearings because the applicant was ill.

On 9 December 1998 the Rostov Regional Court postponed a hearing because they had received a telegram from an anonymous sender requesting that the applicant's case be taken off the list of appeals to be heard.

On 29 December 1998, as well as on 3 February and 3 March 1999 the Rostov Regional Court postponed appeal hearings because of the applicant's illness.

On 14 April 1999 the Rostov Regional Court decided to examine the appeal in the applicant's absence, quashed the judgment of 1 July 1997 and remitted the case for a fresh examination in the first instance. The applicant's counsel was not present at the hearing.

On 11 May 1999 the Shakhty Town Court scheduled a hearing for 8 June 1999.

On 8 June 1999 the Shakhty Town Court ordered Mr P. to be summoned to a hearing. It appears that Mr P. failed to comply with the summons.

On 2 July 1999 the criminal proceedings against the applicant and Mr P. were suspended. The preventive measure in Mr P.'s respect was changed to custodial detention and he was put on a wanted list. The Shakhty Town Court decided not to proceed with the examination of the case. The applicant and his lawyer did not appeal against the decision.

On 4 January 2002 the criminal proceedings were resumed in respect of the applicant.

On 10 January 2002 the Shakhty Town Court postponed a trial hearing owing to the applicant's failure to appear.

On 23 January 2002 a trial hearing was postponed to 18 February 2002.

On 18 February 2002 a hearing was postponed owing to witnesses' and the applicant's counsel's failure to appear. Mr K. was absent because of a business trip.

On 26 February 2002 a hearing was postponed because of the applicant's illness.

On 14 March 2002 a hearing was postponed on a prosecutor's request in charge of the search for Mr P.

On 18 March 2002 a hearing was postponed because one of the victims failed to attend.

On 21 March 2002 a hearing was postponed until 22 March 2002 on the applicant's request, to allow him to study the case file.

On 21 March 2002 the Shakhty Town Court dismissed Mr K.'s request to suspend the proceedings against the applicant pending the search for Mr P. The applicant's counsel appealed against the ruling on the same day.

Between 22 March and 1 April 2002 the Shakhty Town Court held hearings on the applicant's case every day.

On 28 March 2002 the Shakhty Town Court dismissed the applicant's request that the proceedings be terminated on the basis of the Act of Amnesty in Commemoration of the 55th Anniversary of the Victory in the Great Patriotic War of 1941-45 adopted by the Russian State Duma on 26 May 2000 (“the Amnesty Act”).

On 1 April 2002 a hearing was postponed because the applicant was ill.

On 9 April 2002 the criminal proceedings in respect of the applicant were suspended because of his illness.

On 23 April 2002 the Rostov Regional Court upheld the rulings of 21 and 28 March 2002.

On 13 June 2002 the proceedings against the applicant were resumed and a hearing was scheduled on 27 June 2002.

On 27 June 2002 the Shakhty Town Court held a hearing, dismissed the applicant's challenge in respect of the composition of the court and a request for a medical examination and postponed the hearing until 23 August 2002.

On 25 July 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the refusal to dismiss the applicant's requests of 27 June 2002.

On 16 August 2002 the Chief Doctor of the Shakhty Oncological Dispensary informed the trial court that the applicant had been diagnosed with malignant lymphoma and had undergone gastrectomy (removal of the stomach) and hemicolectomy (removal of a part of the colon). He underlined that the applicant had a first-degree disability and “dumping syndrome” (rapid fall in blood sugar after eating) which did not allow him to participate in the hearing; and that any stressful situation could aggravate his condition.

On 19 August 2002 the criminal proceedings in respect of the applicant were suspended because of his illness.

On 1 October 2002 the Rostov Regional Court quashed the ruling of 19 August 2002 and remitted the case for a fresh examination to the Shakhty Town Court with a new composition.

On 29 October 2002 a hearing was scheduled for 15 November 2002.

On 15 November 2002 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 27 November 2002.

On 10 and 25 December 2002 hearings were postponed because of the applicant's absence.

On 17 January 2003 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 31 January 2003.

On 10 February 2003 a hearing was postponed because the applicant's counsel, Ms L., was occupied.

On 26 February 2003 the Shakhty Town Court heard the applicant, his counsel, the victim and several witnesses and examined written evidence.

On 28 February 2003 the Shakhty Town Court convicted the applicant of rape and attempted rape and sentenced him to three years' imprisonment. The applicant was exempted from serving the sentence under the Amnesty Act.

On 28 February 2003 one of the victims appealed against the judgment.

On 5 and 11 March 2003 the applicant lodged appeals against his conviction, challenging, inter alia, the court's factual findings. According to the applicant, he requested the Rostov Regional Court to examine his appeal in his presence. According to the Government's submissions, the applicant did not request to be present at a hearing.

On 11 March 2003 the prosecutor appealed against the judgment of 28 February 2003.

On 1 April 2003 the applicant lodged an additional appeal in which he made detailed complaints alleging deficiencies in the first-instance proceedings. According to the Government, he also requested that an appeal hearing be held in his presence.

On 20 April 2003 the victim lodged an additional appeal, which was forwarded to the applicant for comments.

On 27 May 2003 the Shakhty Town Court received the applicant's comments on the victim's and prosecutor's appeals and then forwarded the case to the Rostov Regional Court. An appeal hearing was scheduled for 15 July 2003.

On 15 July 2003 the Rostov Regional Court postponed an appeal hearing to 5 August 2003 because the applicant was ill.

On 5 August 2003 the applicant did not appear before the Rostov Regional Court because he was ill. The hearing was postponed until 26 August 2003.

On 26 August 2003 the appeal hearing was again postponed because of the applicant's failure to appear in the court-room due to illness.

In August 2003 the President of the Criminal Chamber of Rostov Regional Court requested the Ministry of Health of Rostov Region and Chief Doctor of the Shakhty Oncological Dispensary to provide information on the applicant's state of health with a view to the possibility of his participating in an appeal hearing scheduled for 30 September 2003.

On 4 September 2003 the Health Department of Shakhty Administration informed the Rostov Regional Court that the applicant was suffering from a malignant lymphoma and that between 29 July and 18 August 2003 he had been hospitalised. The applicant was weak; a stressful situation would have an adverse impact on his state of health. It was not possible to predict or assume a date when he would be available for an appeal hearing.

On 29 September 2003 the applicant sent a telegram to the Rostov Regional Court, requesting that the hearing be adjourned as he was in hospital. He also asked if the court was equipped with facilities to enable wheelchair access.

On 30 September 2003 the Rostov Regional Court decided to reject the applicant's request to adjourn the appeal hearing. It referred to the applicant's serious state of health, and the legislative rule that the appeal court must start examination of an appeal no later than one month after it has been lodged.

On the same day the Rostov Regional Court examined the case on appeal. The court heard submissions by the judge rapporteur and prosecutor, but the applicant's counsel was not present at the hearing. The judgment of 28 February 2003 was upheld.

On 20 February 2004 the Rostov Regional Court rejected the applicant's request for supervisory review proceedings. With respect to the applicant's complaint about examination of the case on appeal in his absence the court found that the applicant had failed to appear “for a farfetched reason”.

An appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of first-instance judgments (Article 373).

An appeal court must start the examination of an appeal no later than one month after its receipt (Article 374).

An appeal court can directly examine evidence, including additional material submitted by parties (Article 377 §§ 4 and 5).

An appeal court may (a) uphold a first-instance judgment; (b) quash it and terminate criminal proceedings; (c) quash it and remit the case for a fresh examination in the first-instance; and (d) amend the judgment (Article 378 § 1).


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Bernd Schaedel, is a German national who was born in 1941 and lives in Berlin. He was represented before the Court by Ms M. Biedermann-Weist, a lawyer practising in Berlin.

The applicant was a citizen of the former German Democratic Republic (GDR) who absconded to West Berlin in May 1988. His real property was subsequently placed under GDR State guardianship and sold to members of the GDR nomenclature (hereinafter the “occupiers”) in December 1988. The occupiers were registered as owners of the property on 2 January 1989 and lived in the house built on the property.

On 13 August 1990 the applicant applied for the restitution of the property. On 25 July 1996 the Hellersdorf-Hohenschönhausen-Marzahn Office for the Regulation of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen) decided, inter alia, that the occupiers had not acquired the property in good faith and ordered that the property be returned. The occupiers appealed against that decision. On 7 March 2002 the Berlin Administrative Court ordered the return of the property to the applicant, and from that date the applicant was the owner of the property. The occupiers withdrew their application for leave to appeal on points of law on an unspecified date and subsequently vacated the property in September 2002.

On 29 December 2003 the Berlin Regional Court refused to grant the applicant legal aid for a claim against the occupiers to obtain compensation for use of the property as regards the period from 1990 to September 2002 on the ground that his application had no prospect of success. As to the period from 1990 to 7 March 2002, and relying on a leading judgment of the Federal Court of Justice of 23 April 1999 (see “Relevant domestic law and practice” below), the court noted that section 7(7) of the Act on the Regulation of Outstanding Property Issues / Property Act (Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “Property Act”, see “Relevant domestic law and practice” below) excluded compensation for the remaining period when the occupiers were registered as owners and had used the property solely as a dwelling. Any claim for compensation for use of property for the period between March 2002 and September 2002 could only be raised before a district court in view of the value of the claim.

On 10 February 2004 the Berlin Court of Appeal upheld that decision.

On 27 September 2004 the Berlin Constitutional Court refused to accept the applicant’s complaint for examination.

On 12 January 2005 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (no. 1 BvR 2852/04).

Under section 7(7) of the Property Act, an owner is not entitled to claim compensation for use of property from the tenants unless otherwise agreed or in respect of rent obtained after 1 July 1994.

On 23 April 1999 the Federal Court of Justice held in a leading judgment (published in that court’s official reports [BGHZ] volume 141, pp. 232 et seq.) that there were no lacunae in section 7(7) of the Property Act and hence no justification for its analogous application to claims for compensation for use of property other than those concerning rent obtained by the tenant after 1 July 1994. The court noted that the tenant was fully entitled to enjoy the property and its fruits prior to restitution. Citing the relevant legislative materials, the court further noted that the legislature had provided for the exception only to urge occupiers to use the rent to maintain the property prior to restitution.


The applicant is a Russian citizen, born in 1942 and living in Poltava, Ukraine.

In 1990 the applicant's son, an army officer, was sent to serve in the Soviet military unit in Eberswalde, Germany. On 9 October 1991 he informed his parents over the phone that he would be leaving for his home leave in Ukraine by car. Following this announcement he disappeared. On 25 November 1991 the military authorities initiated a criminal investigation into his disappearance on the suspicion of his having deserted his duty station after failing to return at the end of his leave.

Since then the applicant has addressed numerous letters to various authorities concerning the fate of his son.

On 27 December 1991 the military prosecutor informed the applicant that he had contacted the German authorities with a request for assistance in establishing his son's whereabouts.

On 2 March 1992 the military prosecutor announced that the German authorities had not yet reported anything positive and that the applicant's theory of his son possibly being in a city hospital had not been proved to be true.

On 29 June 1992 the military prosecutor informed the applicant that the authorities of Poland, Belarus and Ukraine had also been involved in the investigation of his son's whereabouts.

In January 1993 the applicant visited his son's military duty station in Germany. During his visit he had the possibility of acquainting himself with his son's case file and of discussing the matter with the investigative authorities as well as with his son's fellow servicemen.

On 18 February 1993 the military prosecutor assured the applicant of the continuing active search for his son.

On 23 April 1993 the military prosecutor informed the applicant that, based on the reply by the German authorities, his son had not been found in any of the German medical or military establishments.

On 30 July 1993 the military prosecutor stated that the physical search for his son in the territory of foreign States could only be carried out by the authorities of those States and that search requests had been sent to the German, Polish, Belarus and Ukrainian authorities.

In 1993 the military unit in which the applicant's son had served was withdrawn from Germany and stationed in Russia.

It appears that on an unspecified date in 1992 the criminal investigation had been suspended. The investigation, however, recommenced prior to April 1993, apparently after an intervention by the Prosecutor General's office.

On 30 December 1993 the Prosecutor General's office stated that the reason for continuing the investigation was the fact that it had been inadequate. On 5 March 1994 the applicant was informed that the basis of the investigation had been changed as the probable cause of his son's disappearance was murder rather than desertion.

On 21 May 1994 the criminal investigation was suspended again. Following an intervention by the military prosecutor of the Moscow Military Region, who considered that the investigation had been inadequate, the proceedings recommenced on 20 October 1994.

On 4 April 1995 the criminal investigation was once more suspended. On 21 February 1996 the military prosecutor of the Moscow Military Region stated that, despite the suspension of the preliminary investigation, the search for the applicant's son's whereabouts was continuing. However, the efforts of the German and Polish authorities, as well as of the Interpol national offices in Russia and Ukraine, had not led to a positive result.

On 10 November 1996 the Chief Military Prosecutor of Russia announced that, as the criminal investigation had been incomplete, the proceedings had recommenced 20 October 1996.

On 20 July 1998 the Personnel Division of the Russian Ministry of Defence announced that the applicant's son no longer appeared on its staff list.

The applicant has also addressed numerous letters concerning the fate of his son to the Ukrainian authorities. On 25 August 1998 the Ukrainian Ministry of Internal Affairs replied that, according to the German authorities, his son never exited the German border and that it had sent search requests to Interpol offices in 12 European countries.


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Lucjan Roman Liss, is a Polish national (formerly a German national) who was born in 1950 and lives in Bergkamen. He was represented before the Court by Mr Joachim J. Lassonczyk, a lawyer practising in Hamm. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

In the 1972 Olympic Games in Munich the applicant won a silver medal in cycling, representing Poland.

In 1977 the applicant developed kidney trouble and went to West Germany to undergo dialysis and a kidney transplant. According to the applicant’s submissions, such treatment was not available in Poland at that time.

In 1980 he had his first transplant.

Also in 1980 the applicant’s mother died and the applicant was granted a single-entry visa to Poland on an exceptional basis.

In 1986 the applicant waived his Polish citizenship and became a German national.

B. Events after 10 October 1994

In 1995 the applicant underwent another kidney transplant in Germany.

On 4 February 2000 the applicant requested the Polish President of the Office for Physical Education and Sport (Prezes Urzędu Kultury Fizycznej i Sportu) to grant him a special payment provided for Olympians.

On 16 March 2000 the President of the Office for Physical Education and Sport refused his request on the ground that he was not a Polish national and did not have his permanent place of residence in Poland as required by the relevant law.

On 8 April 2000 the applicant lodged a request for reconsideration of that decision.

On 12 May 2000 the President of the Office for Physical Education and Sport confirmed his decision of 16 March 2000.

The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny).

On 6 December 2000 the Supreme Administrative Court dismissed the applicant’s complaint. The court found that the applicant had not satisfied two of the five conditions listed in section 28a of the Act of 18 January 1996 on Physical Education (ustawa o kulturze fizycznej) (“the 1996 Act”), namely he was not a Polish national and did not have his place of residence in Poland. Accordingly, the court found that the challenged decision had been given in accordance with the law and that the applicant’s complaint therefore had to be dismissed.

In 2003 the applicant requested the relevant Polish authorities to grant him Polish citizenship.

On 11 February 2004 the President of the Republic of Poland granted the applicant Polish citizenship.

On 1 September 2005 the Professional Sports Act (Ustawa o sporcie kwalifikowanym) of 29 July 2005 entered into force. The new law replaced the condition of a permanent place of residence in Poland by a requirement of having a permanent place of residence on the territory of Poland or another member State of the European Union.

On 17 January 2006 the Minister of Sport (Minister Sportu) gave a decision and granted the applicant the special payment provided for Olympians in the amount of 2,477.23 Polish zlotys (PLN) monthly, finding that the applicant had fulfilled all the requirements listed in the new law.

Special payment for Olympians

At the relevant time the issue of special payment for Olympians was regulated by the Law on Physical Education of 18 January 1996 (“the 1996 Act”) (”Ustawa o kulturze fizycznej”). Section 28 a as introduced into “the 1996 Act” by the Law of 4 November 1999 on amendment to the Law on Physical Education (“Ustawa o zmianie ustawy o kulturze fizycznej”) with effect from 1 January 2000, provided, in so far as relevant:

“Representatives of Poland in the Summer or Winter Olympic Games, who:

1) have won at least one Olympic medal,

2) are at least thirty-five years of age and do not take part in competitive sports,

3) have Polish citizenship,

4) have their permanent place of residence on the territory of Poland,

5) have not been convicted of an intentional offence

- are entitled to payments from the State Treasury.”

On 1 September 2005 the 1996 Act was amended and the provisions on special payments for Olympians were incorporated in the new Professional Sports Act of 29 July 2005 (ustawa o sporcie kwalifikowanym). The relevant amendment, which entered into force on 1 September 2005, broadened the range of persons entitled to the special payment by including those who had their permanent place of residence either in Poland or in another EU member State. The criterion of Polish nationality remained.

Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

At the relevant time Article 58 of the Act of 11 May 1995 on the Supreme Administrative Court (Ustawa o Naczelnym Sądzie Administracyjnym) provided that in cases terminated by a final judgment of the court the proceedings might be reopened at the request of a party to the proceedings or ex officio...

According to Article 59 of that Act provisions of the Code of Civil Procedure applied respectively to the proceedings before the Supreme Administrative Court.

Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution.


Violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);No violation of Art. 5-3;No violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1964 and is serving a prison sentence in the Kirov Region.

On 19 March 1995 the police uncovered a substantial quantity of marijuana in one of the offices of Rostov Nautical College. A witness testified that the drug had been left there by the applicant, who was arrested a day later and then released on 23 March 1995 on a written undertaking not to leave town. It appears that the applicant failed to appear for questioning on several occasions. The authorities failed to establish his whereabouts and on 5 July 1995 the criminal investigation was suspended.

The applicant was arrested on 29 April 1998. The police found cocaine on him. More drugs and some ammunition were discovered in his flat. On 30 April 1998 the prosecutor authorised his detention pending investigation, referring to the risk of his absconding. It was further extended on 22 June 1998 until 29 July 1998.

Upon completion of the investigation, the prosecutor forwarded the case file to the Kirovskiy District Court of Rostov-on-Don on 22 July 1998. The District Court found, however, that the case should be remitted to the prosecutor's office for additional investigation. The relevant decision was issued on 15 October 1998. The court also ruled that the applicant should remain in custody.

Once the additional investigation was completed and the case file was forwarded to the District Court, the latter scheduled the hearing of the case for 22 January 1999. The first two hearings were adjourned on 22 January and 19 February 1999 on account of the judge's involvement in other proceedings. Subsequently, the District Court found certain procedural irregularities in the bill of indictment and remitted the case to the prosecutor's office on 9 March 1999 for their rectification. The applicant's detention pending investigation was further authorised by the prosecutor on 25 June 1999 until 24 July 1999.

On 24 July 1999 the maximum permissible period of the applicant's detention pending investigation expired. Two days later the applicant was released on an undertaking not to leave town.

The trial was opened on 10 August 1999. The District Court scheduled the hearing of the case for 15 September 1999; it was subsequently adjourned owing to the applicant's lawyer's failure to appear. The hearing was further adjourned on 19 October and 16 November 1999 owing to the applicant's illness. It was resumed on 14 December 1999. Referring to the gravity of the charges, the court ordered the applicant's detention pending trial.

On 24 January 2000 the District Court found the applicant guilty of unlawful possession of ammunition and drugs and gave him a suspended sentence of three years' imprisonment, conditional on two years' probation. The applicant was released on a written undertaking not to leave town. Both the prosecutor and the applicant appealed.

The Rostov Regional Court adjourned the appeal hearing owing to the applicant's lawyer's failure to appear on 23 February and 7 and 15 March 2000. The matter was considered on 29 March 2000. The Regional Court held that the trial court's findings were inconclusive, quashed the conviction and remitted the case to the lower court for fresh consideration.

On 8 June 2000 the District Court ordered that the proceedings should be stayed because of the applicant's illness. They were resumed on 17 May 2001, when the court scheduled the first hearing for 25 May 2001. The court also directed that the applicant should be detained pending trial. No time-limit was fixed. In particular, the court ruled as follows:

“... the court considers it necessary to revoke [the applicant's] undertaking not to leave town and to order his detention pending trial since he is charged with several serious and grave offences involving illegal drug dealing which present a heightened danger to public order and impinge on such an important value protected by the criminal law as public health. When deciding on [the applicant's] detention, the court notes that, according to the medical documentation, there are no circumstances rendering him unfit for detention. Furthermore, the remand prison and special hospital no. 19 are equipped with adequate facilities to provide professional medical assistance to the detainees, if necessary.”

The police failed to execute the court's order as the applicant's whereabouts were unknown. On 5 June 2001 the applicant's name was put on the wanted persons' list. He was arrested by the police and remanded in custody on 13 September 2001.

The hearing of the case was adjourned owing to the defence counsel's failure to appear on 3 October, 5, 21 and 27 November, 11 and 26 December 2001 and 8 and 29 January 2002. On 29 January 2002 the hearing was adjourned because the judge was involved in other proceedings.

On 19 March 2002 the District Court dismissed an application by the applicant for release, in which he had alleged that his health had deteriorated, that he had a permanent residence and that he had not failed to observe his undertaking not to leave town. The court noted as follows:

“The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence as he is charged with serious and grave offences which impinge on such an important value as public health and present a heightened danger to public order. The court considers that, if released, [the applicant] might interfere with the administration of justice or abscond.”

Between 26 February 2002 and 8 May 2003 the District Court adjourned nine hearings in the case on account of the applicant's or his counsel's illness or the latter's failure to appear. Twice the court adjourned the hearing because of the absence of witnesses. On two occasions the court granted a request by the applicant for additional time to study the case file.

The applicant's detention was extended on 1 July 2002 until 1 October 2002. The court stated the following:

“The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order, [his] detention may be also justified by this fact alone... Furthermore, if released, [the applicant] might abscond, as he has done in the past... or interfere with the administration of justice.”

The applicant appealed, referring to his health problems. He further claimed that the District Court's conclusions that he might abscond or interfere with the administration of justice lacked any substantiation. On 13 August 2002 the Regional Court upheld the decision of 1 July 2002 on appeal.

On 25 September 2002 the District Court extended the applicant's detention until 1 January 2001. The court reasoned as follows:

“The court does not consider it practical not to extend the [applicant's] detention and release him. His detention is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order..., the court... considers it necessary to extend his detention... Furthermore, if released, [the applicant] might abscond or fail to appear in court, as he has done in the past. That is the reason why his detention was ordered [in the first place] and his name was put on the wanted persons' list. The length of the custodial sentence to which the applicant may be subjected if found guilty also indicates, although indirectly, that such a development is very likely. Besides, if released, [the applicant] might interfere with the administration of justice, given that his line of defence is contrary to the testimonies of most witnesses.

The lawyers' argument that [the applicant's] medical condition is serious cannot be taken into consideration. No objective data or medical documents have been produced to the court to show that [the applicant's] detention is incompatible with his condition. The court received only a medical report stating that [the applicant] is currently unable to participate in the hearing. Besides, according to the report, [the applicant is being provided] with the necessary medical assistance.”

On 12 November 2002 the Regional Court upheld the order of 25 September 2002 on appeal.

On 25 December 2002 and 25 March 2003 the District Court extended the applicant's detention until 1 April and 1 July 2003 respectively. Each time the court referred, as before, to the gravity of the charges against the applicant. It also noted that, if released, the applicant might abscond, as he had done in the past. The court further reasoned that it was impossible to place the applicant under house arrest or to use any other alternative “preventive measure” to ensure his attendance during the trial because, if released, he might put pressure on the witnesses who were to testify against him. On 25 February and 27 March 2003 the Regional Court upheld the relevant court orders on appeal.

On 27 June and 1 July 2003 the District Court considered the merits of the case and convicted the applicant of drug dealing and unlawful possession of drugs and ammunition, sentencing him to three years and one month's imprisonment. It appears that the applicant did not appeal.

The applicant was released on or about 23 July 2003 since the time he had served in detention was taken to be credited towards the sentence.

From 14 September 2001 to 2 July 2003 the applicant was detained in remand prison no. IZ-61/1 in Rostov-on-Don (СИЗО ИЗ-61/1 г. Ростова-на-Дону), in cells no. 33, 168 and 6. Twice he was transferred to a prison hospital (УЧ-398/19 МОТБ), where he stayed from 8 August to 14 November 2002 and from 6 to 20 February 2003. The applicant and the Government submitted differing descriptions of the remand prison.

According to the applicant, the cells in the remand prison were overcrowded. The number of bunk beds in the cells was insufficient and the inmates had to take turns to sleep. The mattresses were dirty and damp. The bedding was rarely washed. The toilet was installed on a 0.5-metre elevation platform and was not separated from the living area or the dining table. The food was of poor quality. The hot water supply was shut down on many occasions. The light was never switched off. There was little access to fresh air or daylight because of thick metal bars on the windows. In addition, there were no window panes and it was cold in the winter and stiflingly hot and humid in the summer. The cells were infested with cockroaches, bugs, bed lice and mites. The cells were never sanitised, no disinfectant was distributed and the use of powder detergent, immersion heaters and fridges was not allowed. The plaster on the walls contained poisonous and toxic substances.

Relying on certificates issued by the administration of the remand prison on 14 and 15 November 2005, the Government submitted that the conditions of the applicant's detention were satisfactory. There were a sufficient number of beds in each cell and the applicant had always had an individual sleeping place. The cells were equipped with a toilet and a sink. There was a separation wall between the toilet and the living area of the cell. The windows were not covered with metal shutters. The central heating ensured an adequate temperature in the cells. The cells were cleaned and disinfected on a regular basis. The bed sheets were washed and disinfected too. The cells were equipped with radio, lighting and a ventilation system. There was a dining table and a bench in each cell. The food was of adequate quality and diverse. The meals were served three times a day and comprised approximately twenty different ingredients.

Relying on a certificate issued on 24 May 2006 by the remand prison, the Government submitted that the plaster on the cell walls contained no poisonous or toxic substances. The paint used complied with State safety standards.

As regards the actual documents concerning the conditions of the applicant's detention from 2001 to 2003, the Government indicated that all the records had been destroyed after the statutory period for their storage had expired. In this connection they submitted a copy of the relevant certificate issued by the administration of the remand prison on 15 May 2007.

From September 2001 to March 2002 the applicant stayed in cell no. 33. According to the applicant, the cell measured 7 sq. m and housed from four to six inmates.

In their memorandum of 27 February 2006, the Government claimed that the cell measured 10 sq. m and was equipped with four beds. Three inmates, on average, were detained there. In their further observations the Government relied on the certificate signed by officer K., acting head of the remand prison, on 26 November 2007. According to the certificate, the cell measured 15.5 sq. m and housed four persons at the relevant time.

From March to July 2002 and then after February 2003 the applicant stayed in cell no. 168. According to the applicant, the cell measured 30 sq. m and housed from fifteen to twenty inmates.

Originally the Government did not dispute the measurements of the cell. According to them, the cell was equipped with ten beds and housed, on average, eight inmates. The Government later submitted a certificate signed by officer K. on 26 November 2007 to the effect that the cell measured 50.4 sq. m and housed fourteen inmates.

On 31 July 2002 the applicant was transferred into cell no. 6, located in the basement. According to the applicant, it measured 12 sq. m and housed twelve inmates. On 6 August 2002 the entire basement, including cell no. 6, was flooded from the sewage system. On the following day the inmates were returned to cell no. 168.

The Government denied that the flooding incident had taken place. In their memorandum of 27 February 2006 they did not accept the number of inmates or the cell measurements quoted by the applicant. According to them, the cell measured 15 sq. m and housed, on average, four inmates. Each of them had an individual bed. According to the certificate signed by officer K. on 26 November 2007, the cell measured 38.4 sq. m. It was equipped with twelve beds and housed twelve inmates.

According to the applicant, in 2002 he was repeatedly placed in the “assembly” cell. It measured one sq. m and had no windows, no ventilation system, no drinking water and no place for rest. The floor was dusted with bleaching powder. The walls were coated with “shuba”, a sort of abrasive concrete lining. No access to a toilet was allowed.

On an unspecified date the applicant spent two hours in that cell; on 24 December 2002 he was held there for three hours, and he was subsequently locked in the cell for fifteen hours from 5 p.m. on 5 March to 8 a.m. on 6 March 2003.

The Government admitted that the applicant had been detained in the “assembly” cell on 5 March 2003 only. They acknowledged that the applicant's detention there contravened the applicable rules and regulations.

According to the applicant's medical file, at least once a week he was examined by doctors of the remand centre, who administered injections and provided medication to treat his hypertension. In particular, the medical file contains the following information.

On 16 July 2002 the applicant received injections in connection with a hypertonic crisis. Following the treatment, his blood pressure lowered from 220/140 to 190/120.

From 8 August to 14 November 2002 and from 6 February to 14 February 2003 the applicant received treatment in hospital. He was released once his condition was recognised as satisfactory.

On 15 November 2002 the applicant complained of hypertension. He was examined by a doctor, who administered an injection and prescribed medication.

On 3, 7, 8 and 10 March 2003 the doctor examined the applicant and treated his hypertension.


David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque

The applicant was born in 1963 and lives in Izmir.

On 12 December 2003 the Izmir Magistrates’ Court issued an arrest warrant for the applicant on suspicion of assault and attempted murder.

On 18 December 2003 the Izmir Public Prosecutor filed a bill of indictment charging the applicant with the offences of assault and attempted murder.

On 6 October 2004 the applicant was arrested.

On 9 October 2004 the Antalya Magistrates’ Court ordered the applicant’s detention on remand.

On 1 December 2005 the Izmir Assize Court sentenced the applicant to six years and two months’ imprisonment.

On 21 February 2007 the Izmir Assize Court ordered the applicant’s release pending trial, having considered the time spent under detention on remand.

On 6 June 2007 the Court of Cassation upheld the judgment of 1 December 2005.

Between 12 October 2004 and 1 December 2005, the Izmir Assize Court examined the applicant’s continued detention at the end of every hearing, either of its own motion or upon the applicant’s requests. On each occasion, the court ordered the applicant’s continued detention, having regard to the state of the evidence, nature of the offence, content of the file and the incomplete collection of evidence.

A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (CCP) (Law no. 5271) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey, no. 45977/99, §§ 29-31, 30 January 2007). The current practice under Law no. 5271 is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13-15, 8 December 2009).


No violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in 1979 and lives in Warsaw.

On 28 September 1999 the applicant was arrested on suspicion of having committed two armed robberies together with other persons.

On 4 October 1999 the Gdańsk District Court decided to detain the applicant on remand. The decision was based on the high probability that the applicant had committed the crimes with which he had been charged, which was confirmed by evidence, in particular the testimonies of one of the co-accused. In addition, the court stated that there was a serious risk that the applicant might attempt to influence the co-accused and the witnesses and thus obstruct the proper course of the proceedings, since as an imprisoned person he was entitled in particular to have breaks in serving the penalty and to correspond without any censorship. On 26 October 1999 the Gdańsk Regional Court upheld the decision.

Subsequently, the applicant’s detention was prolonged on several occasions (on 4 October and 9 December 1999, 8 March and 12 September 2000, 27 March, 26 July and 5 September 2001, 30 January, 24 April, 18 September and 31 October 2002, 28 January, 24 April, 21 June, 9 July, 14 October and 16 December 2003, 23 March and 16 September 2004, 25 January, 25 May, 21 July, 22 September and 6 December 2005, and 2 March 2006). The courts based their decisions on the reasonable suspicion that the applicant had committed the offence concerned, the severity of the penalty he faced and the risk of his collusion and absconding. During the preparatory proceedings the extension of his detention was also justified by the need to obtain further evidence, in particular to obtain expert opinions, to make inquiries at his home, to take evidence from the suspects and to confront them.

From 15 September 1999 to 10 April 2000 the applicant served a prison sentence imposed on him in separate proceedings.

The applicant lodged a considerable number of applications for release from detention or for commutation of the preventive measure to a less severe one, on the ground of his poor state of health or other reasons (on 20 September 2000, 20 August and 7 November 2002, 17 February 2003, 27 April, 17 June and 17 October 2004 and 17 July 2005); however, they were dismissed in decisions of 3 October 2000, 27 June 2002, 3 July 2002, 27 February 2003, 25 May 2004, 22 June 2004, 12 October 2004, 10 October 2005, 13 December 2005, and 31 January and 16 March 2006.

The applicant also challenged the decisions prolonging his detention, but those applications were likewise dismissed on 26 October 1999, 8 August and 3 October 2001, 22 May and 23 October 2002, 6 August 2003, 13 January and 11 July 2004, and 25 January, 14 June, 14 September, 19 October and 28 December 2005.

During the preparatory proceedings twelve persons (including the applicant) were arrested. The public prosecutor took evidence from 25 witnesses and the suspects were interviewed 32 times. 46 expert opinions were obtained, 17 confrontations and 24 searches of individuals, premises and other places were carried out and identity parades were conducted on eight occasions. Numerous documents were obtained, in particular bills of phone calls made by the suspects, their criminal records and copies of judgments.

From 10 April 2000 to 10 November 2001 the applicant served a sentence of one year and seven months’ imprisonment imposed on him in separate proceedings.

The applicant was indicted before the Gdańsk Regional Court on 1 September 2000. The bill of indictment concerned 61 charges and 12 accused (eight of whom, including the applicant, were detained). The applicant was charged with illegal possession of firearms, two armed robberies, one robbery involving the use of dangerous implements and resulting in serious injuries, and participation in an organised armed criminal gang. Charges against the other accused also concerned attempted murder, theft, burglary and handling stolen goods. The public prosecutor requested the court to examine nine experts and 78 witnesses and to read out the testimonies of a further 49 witnesses. The case file at that date comprised 22 volumes and the bill of indictment with the statement of reasons ran to more than 70 pages.

In the period from 14 November 2000 to 3 October 2002 the first-instance court held 30 hearings. In addition five separate sittings were held at which the court decided to prolong the applicant’s detention, and on two occasions witnesses were examined away from the court’s premises. Two hearings had to be cancelled, on grounds not attributable to the court.

From 10 November 2001 to 16 April 2004 the applicant served a prison sentence imposed on him in separate proceedings.

On 14 and 15 November and 20 December 2000 the court held hearings. It decided to examine the case against one of the co-accused separately as his serious illness could have led to delays in the proceedings, and heard evidence from an expert and nine defendants, including the applicant.

The hearing scheduled for 23 January 2001 was adjourned as one of the accused revoked his lawyer’s power of attorney. As a result the hearing scheduled for the next day had to be cancelled as well.

The hearing scheduled for 14 March and 18 April 2001 was cancelled because the defendants had not appeared in court. The court contacted the relevant police headquarters and instructed them to supervise and secure the appearance of the detainees.

Between 26 April and 7 November 2001 eight hearings were held and the court examined the defendants and a total of 47 witnesses. At a hearing of 30 August 2001 the court requested the Gdańsk Court of Appeal to extend the applicant’s detention until 28 February 2002. The trial court repeated the grounds given in earlier decisions on his detention. In addition it pointed to the increased risk of collusion since one of the other defendants had significantly changed his version of events at a previous hearing. The Court of Appeal granted the request on 5 September 2001, fully endorsing the reasons given by the first-instance court. It also noted that the proceedings were being conducted swiftly and that it had not been possible to terminate them for reasons not attributable to the trial court.

Between 19 December 2001 and 13 June 2002 the court held 11 hearings during which the co-accused, eight experts and 39 witnesses were examined and seven other witnesses refused to make any statements.

The hearing scheduled for 27 June 2002 had to be adjourned owing to the absence of one of the co-defendants and the lawyers of two others. The court decided to address the relevant bodies of the Bar Association and ordered the detention of the absent defendants.

Between 10 July and 25 October 2002 seven hearings were held and the parties, an expert and ten witnesses gave evidence. The court read out testimonies of eight other witnesses, taken in the preparatory proceedings.

On 31 October 2002 the Gdańsk Regional Court sentenced the applicant to seven years’ imprisonment and a fine of 3,000 Polish zlotys (PLN). The length of his detention on remand was not deducted from the sentence because during the whole proceedings at issue the applicant had been serving a prison sentence imposed on him in separate proceedings. The judgment, with its reasoning, ran to more than 80 pages.

The applicant and other co-defendants appealed.

The appellate hearing scheduled for 30 October 2003 was adjourned because the court decided (at the request of the lawyer of one of the co-accused) to obtain an expert opinion on the co-accused’s mental state and to hear evidence from an expert.

On 1 December 2003 the Gdańsk Court of Appeal quashed the judgment in respect of eight of the accused, including the applicant, and remitted the case to the first-instance court, having found infringements of procedural law which might have influenced the outcome of the case.

In the period from 22 June 2004 to 28 March 2006 the Gdańsk Regional Court held 23 hearings; another seven were cancelled for various reasons. In addition, nine separate sittings were held at which the court decided on the applicant’s detention.

At this stage of the proceedings all the defendants, including the applicant, became very active. In particular, the applicant challenged all subsequent decisions concerning his detention, requested copies or records after almost all the hearings, on three occasions requested the court to transfer the case file to the detention centre in order to acquaint himself with its contents, made numerous applications for evidence to be adduced, for example requesting several expert opinions or the examination of witnesses, and lodged a considerable number of other applications.

The hearings scheduled for 4 and 25 May, 2, 8 and 22 June 2004 were cancelled or adjourned because of the illness of a judge or the absence of defendants. The court appointed a new lawyer to replace one who had fallen ill.

Between 7 September and 10 December 2004 the Regional Court held five hearings and examined 19 witnesses. Several other witnesses refused to testify or were absent.

From 9 December to 26 December 2004 the applicant served a prison sentence imposed in separate proceedings against him.

A hearing scheduled for 4 January 2005 had to be adjourned owing to the absence of a co-defendant’s lawyer. The court decided to contact the relevant bodies of the Bar Association on this matter.

Between 18 January and 30 June 2005 six hearings were held and an expert and 40 witnesses gave evidence; a further ten were absent. The court imposed a fine on one witness who failed to appear at a hearing. Two hearings were cancelled owing to the illness of a judge or the absence of a witness.

On 10 August 2005 the Gdańsk Court of Appeal dismissed the applicant’s complaint under the 2004 Act on the breach of the right to a trial within a reasonable time, considering that on the date of entry into force of the 2004 Act the proceedings had not exceeded the reasonable-time requirement. The court thoroughly analysed the proceedings before and after that date. It noted that the actual length of the proceedings, even if the applicant had not contributed to it, could not be taken as the only criterion for holding that the time taken was excessive. In the court’s opinion, the length of the proceedings could be found to be unreasonable if undue delays caused by inactivity or improper actions on the part of the court had occurred. The court did not establish any such circumstances in the case at issue and pointed to its extreme complexity, with the large number of plots and individuals involved, as the main cause of the length of the proceedings. The court noted that the trial court had conducted the proceedings in a proper way and had taken appropriate measures to discipline witnesses and other persons in the event of their absence.

Between 4 October 2005 and 28 March 2006 the Regional Court held four hearings and five others had to be adjourned owing to the illness of a judge, the absence of a lawyer or a lack of police officers to guard the defendants on their way from the detention centre to the court. The testimonies of three witnesses were heard and those of absent witnesses were read out.

The proceedings are currently pending before the Regional Court.

The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).

The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006).