Remainder inadmissible;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

The applicant was born in 1917 and lives in the town of Ternopil.

In 1989 her husband and son, Mr B.P. and Mr B.I., became members of the Cooperative Society for Construction and Repair “Kooperator” (the “Society”). On 22 May 1990 the Ternopil Town Executive Committee (the “Committee”) transferred two plots of land in Ternopil to the Society for the construction of three houses. By decision of 14 November 1990, the Committee transferred a part of that land to the applicant's husband and son for the erection of a two-flat house. On 27 November 1990 the general assembly of the Society adopted a decision similar to the Committee's decision of 14 November 1990. On an unspecified date the Committee transferred the land, with which Mr B.P. and Mr B.I. had been provided, back to the Society.

On 2 December 1991 the general assembly of the Society, headed by Mr B.I., decided to terminate the Society's activity. It further decided to transfer the Society's property to its members. In particular, Mr B.P. was granted the left side of a house and Mr B.I. was granted its right side. As it was later established by the domestic courts, in 1991 there was only the foundation of the future house. In December 1991 the Society closed its bank account. The Society's state registration was annulled in September 1995.

The house was erected by autumn 1994.

Between 1995 and 1997 Mr B.P. unsuccessfully lodged with the Ternopil Town Council (the “Council”) a number of applications, requesting the Council to grant him a right to use the plot of land on which the left part of the house had been constructed.

On 17 February 1997 Mr B.P. died. The applicant inherited all his possessions.

On 8 April 1997 the Council granted Mr B.I. a right to use the plot of land on which the right side of the house had been built.

In June 1997 the applicant lodged with the Ternopil Town Court an administrative law complaint against the Council for failure to consider the request to grant her a right to use the plot of land on which the left part of the house had been constructed. On 9 July 1997 the court found in favour of the applicant and ordered the Council to consider the merits of the applicant's request at its next session.

On 23 July 1997 the Council granted Mr M. a right to use the plot of land, on which the left side of the house had been built, for construction purposes.

In 1996 Mr M. lodged with the Ternopil Regional Prosecutor's Office a criminal law complaint against Mr B.I., accusing the latter of fraud. Mr M. alleged that Mr B.I. had unlawfully attempted to take possession of the left part of the house, which Mr M. had bought from him according to a sales contract of 18 March 1993. On 9 July 1996 the prosecutors initiated criminal proceedings against Mr B.I.

In 1997 Mr B.I. lodged with the Ternopil Regional Security Service Department a criminal law complaint, accusing Mr M. of fraud. Mr B.I. alleged that Mr M. had falsified the official documents in respect of the left part of the house in order to become its owner. On 13 March 1997 the department initiated criminal proceedings against Mr M.

On 25 May 1997 both criminal cases were joined. On 15 July 1997 the Ternopil Town Police Department terminated the criminal proceedings on the ground of absence of corpus delicti in the actions of Mr B.I. and Mr M. The police established that Mr M. had not been a member of the Society in 1991. It also found that there were two different copies of the decision of the general assembly of the Society of 2 December 1991, one of which confirmed the membership of Mr M. and contained his name instead of the name of Mr B.P., the latter being mentioned in the other copy of that decision. The police held that the existence of two different versions was of no importance, as none of the copies had been duly certified by a notary. It further stated that, according to the expert examination of the sales contract of 18 March 1993, the contract had been forged by way of combination of two printed texts. The police also found that the contract had no binding force, as it had not been certified by a notary or by the Society.

In July 1997 the applicant instituted proceedings in the Ternopil Town Court against the Council, seeking the annulment of the latter's decision of 23 July 1997 to grant Mr M. a right to use the plot of land, on which the left side of the house had been built. She further requested the court to oblige the Council to grant her a right to use the plot of land under the left side of the house for an indefinite period of time. The applicant was represented in the proceedings by her son, Mr B. I. Mr M. joined the proceedings as a third party.

In the course of the proceedings, the applicant submitted that her late husband had been the owner of the left part of the house, which had been constructed on the plot of land at issue, as he had been granted that part of the house pursuant to the decision of the Society of 2 December 1991. After her husband's death she inherited his property, including the left part of the house. The construction works were carried out at her and her late husband's expense. She further argued that, although her son had initially agreed to sell the part of the house to Mr M., the latter had refused to pay the price, upon which they had agreed. Thus, the left part of the house was not sold to Mr M.

Mr M., in his turn, argued that in 1993 he had bought from Mr B.I. the foundation of the left part of the house and some construction materials, which formally belonged to Mr B. P. Mr M. further argued that they had agreed that Mr B. I. would complete the construction works. The latter having failed to do so, Mr M. built the left part of the house at his own cost. Between 1993 and 1994, Mr M. paid Mr B. I. around USD 10,000 by instalments. Following this, Mr M. refused to pay Mr B. I. higher amounts, as he had completed the construction works himself. Mr M. submitted copies of two documents dated 20 January 1995, according to which Mr B. I. had received from Mr M. 1,550,000,000 karbovanets (the former transitional currency of Ukraine before September 1996) for the left part of the house and that the latter had built that part of the house and reimbursed the money, which Mr B. I. had paid for the construction materials. Mr M. alleged that Mr B. I. had signed these documents as the head of the Society.

The applicant, in reply, contended that the documents, submitted by Mr M. in support of his claim that he had constructed the house and that he had purchased it, including the contract of 1993, had been forged. Referring to the general interpretation of the relevant domestic law given by the Plenum of the Supreme Court of Ukraine, she further argued that, even assuming that Mr M. had participated in the construction of the left part of the house, he could not claim ownership rights in its respect.

The Council submitted that its decision of 23 July 1997 was lawful, as Mr M. had provided it with the documents which had proved that he had constructed the left part of the house.

On 27 August 1997 the Ternopil Town Court found for the applicant and quashed the Council's decision of 23 July 1997. It further ordered the Council to grant the applicant the right to use the land at issue for an indefinite period of time. The court held that Mr M. had not qualified to be granted that right, as he had not been a member of the Society and there was no information in the notary's register that the Society had transferred the plot of land in question to him.

The Council appealed in cassation.

On 29 September 1997 the Ternopil Regional Court informed the Supreme Court of Ukraine about the Council's request for the case to be transferred to another court. The Council alleged that the applicant's son was a member of the family of one of the judges of the Ternopil Regional Court. On 7 October 1997 the Supreme Court ordered that the appeal in cassation against the first instance court's decision was to be heard by the Khmelnytsk Regional Court, instead of the Ternopil Regional Court. The applicant was not informed either about the Council's request or about the decision of the Supreme Court to reassign the case.

On 20 November 1997 the Khmelnytsk Regional Court upheld the decision of 27 August 1997.

On 10 April 1998 the Deputy Prosecutor of the Khmelnytsk Region lodged a protest with the Presidium of the Khmelnytsk Regional Court, seeking initiation of supervisory review proceedings in the applicant's case. On 27 April 1998 the Presidium allowed the protest, quashed the decisions of 27 August and 20 November 1997, and remitted the case for a fresh consideration to the Ternopil Town Court. It also noted that there had been no building at the time when the Society had decided to transfer its part to Mr B. P. Moreover, the parties failed to submit documentary evidence in support of their claims for ownership rights.

On 22 June 1998 the Supreme Court ordered the Ternopil Town Court to transfer the case to the Khmelnytsk Regional Court, the latter being responsible for selecting a first instance court to reconsider the case. According to the Government, the Ternopil Town Court did not comply with the instructions of the Supreme Court and did not transfer the case.

On 3 July 1998 the Ternopil Town Court found for the applicant. On 25 August 1998 the Ternopil Regional Court upheld the decision of the first instance court. The courts of both instances held that there was enough evidence that Mr B.P. had been a member of the Society. This fact had been established by the Ternopil Town Court in its judgment of 9 July 1997, which had not been appealed against and had become final, and the applicant could not be held responsible for the absence of other documents proving the membership of her deceased husband. The courts also held that the decision of the general assembly of the Society of 2 December 1991 had, in fact, provided for the transfer of certain objects situated on the plot of land at issue, i.e. the foundation and some construction materials, erroneously referring to them as a building. With regard to the sales contract of 1993, the courts stated that Mr B.I. had not been entitled to sell the left part of the house, irrespective of whether he had acted in his capacity as the head of the Society or as a private person. They also referred to the findings of the police of 15 July 1997 that the contract had been falsified. Similarly, they found that the documents submitted by Mr M., in particular a copy of the decision of the general assembly of the Society of 2 December 1991, stating that he had been one of its members and had been granted the left part of the building, and the receipts in respect of the construction expenses were not valid. In any event, a contribution to the construction expenses could not be a valid ground for an ownership claim.

By letter of 12 October 1998, the Deputy President of the Supreme Court requested the Ternopil Town Court to send the case file to the Supreme Court for supervisory review. By the same letter, he informed the Ternopil Town Court and Mr M. that the execution of the judgment of 3 July 1998 was suspended.

On 22 December 1998 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking the initiation of supervisory review proceedings in the applicant's case. On 24 March 1999 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 3 July and 25 August 1998, and remitted the case for a fresh consideration. It held that there was no evidence that the left part of the house was owned by either the Society or Mr B.P. Moreover, there was no information as to the latter's membership of that Society, and the lower courts had not verified whether the house had been erected by him in compliance with relevant regulations. The panel further stated that the first instance court had failed to take into consideration the written testimonies of the persons, who had participated in the construction of the house. It stressed that its findings should be taken into account in the new consideration of the case.

On 25 August 1999 the Ternopil Town Court found for the applicant. The court for the most part reiterated the findings contained in the decision of 3 July 1998. It also held that the Society had been the owner of every construction object on the land at issue before it transferred the title to these objects to its members, including Mr B.P. On 28 September 1999 the Ternopil Regional Court upheld the decision of 25 August 1999.

On 6 June 2000 the Deputy President of the Supreme Court lodged a protest with the Chamber in Civil Cases of that court, seeking again the initiation of supervisory review proceedings in the applicant's case. On 5 July 2000 the panel of three judges of the Supreme Court allowed the protest, quashed the decisions of 25 August and 28 September 1999, and remitted the case for a fresh consideration. It held that the lower courts had failed to take into account the instructions contained in its decision of 24 March 1999. The panel reiterated that the first instance court had failed either to verify whether the Society had been the owner of the objects in question; whether the Society had been in fact liquidated and, if so, when it had been liquidated; whether the Society had been granted a construction permit; or to establish who had actually constructed the part of the house at issue. The panel found that the Society had not had authority to transfer the land to third parties and its members had not had rights to build houses on that land. It finally held that Mr M. had in fact obtained the plot of land at issue as well as all the documentation in respect of the left part of the house, which remained in his actual possession.

On 9 October 2000 the Supreme Court, following the request of Mr M., invited the Khmelnytsk Regional Court to assign the case to one of the first instance courts in the Khmelnytsk region. On 1 November 2000 the regional court transferred the case to the Chemerovetsk Town Court.

In November 2000 Mr M. lodged a counter claim, seeking recognition of his ownership rights in respect of the left part of the house.

On 19 January 2001 the Chemerovetsk Town Court ruled in favour of Mr M. and rejected the applicant's claims. It held that Mr M. had lawfully bought the foundation of the left part of the building and had completed the construction himself, which was supported by the evidence examined in the proceedings. In particular, the court stated that the contract of 1993 was valid, as it had been seized by the police from the flat of Mr M. in 1997, and the two documents of 20 January 1995 were, according to the expert's conclusions, also valid. The court further noted that the written testimonies, certified by a notary, of 16 witnesses, who had carried out construction works, and Mr D., who had been heard by the court as a witness, confirmed that Mr M. had built the left part of the house at his own cost. The court also relied on the letter of 28 February 1996, submitted by Mr M., in which the Ternopil Regional Prosecutor's Office stated that, according to the conclusions of its inquiry into the matter, the left part of the house was built by Mr M. The court also found that the latter was in actual possession of that part of the house, as he had been paying all the communal charges in its respect. The court refused to admit as evidence copies of the bills of costs in respect of construction materials, submitted by the applicant, on the ground that it was not possible to establish whether these construction materials had been used to build the left part of the house.

On 16 February 2001 the applicant requested the Supreme Court to transfer the case to another court on the grounds that it would be difficult for her to participate in the hearings before the Chemerovetsk Town Court with regard to her age and state of health, on one hand, and the distance between her place of residence and the place of the hearing, on the other. On 25 February 2001 the Supreme Court rejected her request as unsubstantiated.

On 1 March 2001 the Khmelnytsk Regional Court upheld the decision of 19 January 2001. It also considered that Mr B.P. had not been a member of the Society, as there were no documents proving his membership and he had resided in another location.

In the course of the proceedings before the Chemerovetsk Town Court and the Khmelnytsk Regional Court, the applicant requested the courts to summon the witnesses, on whose written statements Mr M. had relied to show that he had constructed the left part of the building. She argued that these testimonies were false and that some of these witnesses could confirm her submissions that certain construction works had been carried out at her and her late husband's expense. The courts did not reply to her request.

In September 2001 the applicant lodged an appeal in cassation against the decisions of 19 January and 1 March 2001 under the new transitional cassation procedure. She complained of the lower courts' incorrect assessment of the evidence. The applicant also argued that the courts had refused to summon the witnesses on whose written testimonies they had relied in their decisions. She maintained that neither she nor her representative had had an opportunity to question these witnesses.

On 22 August 2002 the Chamber in Civil Cases of the Supreme Court considered the merits of the applicant's appeal in cassation and rejected it. The Supreme Court held that Mr M. had lawfully purchased a part of the foundation of the building and had valid grounds to use the plot of land on which the left part of the building had been constructed. The court also held that the written statements of the witnesses, confirming that Mr M. had completed the construction, had been lawfully admitted as evidence in the case.

In 2002 the applicant and Mr B. I. instituted another set of proceedings in the Ternopil Town Court against Mr M., two other members of the family of Mr M., and the Ternopil Town Council, seeking the annulment of the ownership certificate of Mr M. in respect of the house. The applicant and Mr B. I. also sought the annulment of certain other official documents, in which it was mentioned that Mr M. had built a part of the house.

On 12 November 2002 the court found against the applicant and Mr B. I. On 4 February 2003 and 26 May 2004, respectively, the Ternopil Regional Court of Appeal and the Supreme Court upheld the decision of the first instance court.

According to the applicant, the courts, which considered her second claim, based their decisions on the findings of the Chemerovetsk Town Court, the Khmelnytsk Regional Court and the Supreme Court of Ukraine made in the course of the first set of civil proceedings (see paragraphs 34, 36 and 39 above).

Under Article 133 § 1 of the Code, the President of the Supreme Court of Ukraine and his or her deputies, as well as the presidents of the regional courts were entitled to transfer a case from one court to another, upon request of the parties, other participants in the proceedings, the prosecutor, or on their own motion. Article 133 § 2 envisaged that the court, which was dealing with the case, could transfer it to another court, (a) if the former court found that it would be more expedient to examine the case in the court which enjoyed jurisdiction over the place of the principal events of the case, or in the court other than the one chosen by the plaintiff; (b) if the former court allowed the well-founded request of the defendant, whose place of residence had been previously unknown, to hear the case in the court which enjoyed jurisdiction over the place of the defendant's actual residence. No formal decision was adopted concerning the transfer of the case.

According to Article 135 of the Code, the case, which was transferred from one court to another pursuant to Article 133, should be accepted by the recipient court. No disputes between the courts over their jurisdiction were allowed.

Pursuant to Articles 327, court decisions, rulings and resolutions might have been reviewed in supervisory review proceedings.

Under Article 337 the court that considers a case in supervisory review proceedings had power:

to leave a judgment, ruling, resolution without changes, and refuse a protest;

to quash, in full or in part, a judgment, ruling, resolution and to remit a case for a fresh consideration to court of first or cassation instance;

to quash, in full or in part, a judgment, ruling, resolution and to discontinue proceedings or leave a case without consideration;

to uphold one of the judgments, rulings, resolutions in a case;

Article 341 provided that instructions of the court which had reviewed a case were binding on the court which later re-examined it. These instructions were binding within the limits envisaged by Article 319 of the Code. According to paragraph 2 of the latter provision, court of cassation had no competence to establish facts which had not been established or disproved by a contested judgment, to decide in advance on question of reliability of a particular piece of evidence, prevalence of certain evidence, and on questions as to which norm of substantive law was to be applied or which decision was to be made in the course of new consideration of the case.

According to Article 353 of the new Code, the parties to the proceedings are entitled to lodge with the Supreme Court of Ukraine an appeal against the court decisions, which were subject to review in cassation, in view of the exceptional circumstances.

Under Article 354, the court decisions in civil matters may be reviewed in view of exceptional circumstances if they are appealed against on the ground that an international judicial authority, whose jurisdiction was recognised by Ukraine, found that a decision in a civil case violated the international commitments of Ukraine.

Articles 356 and 357 provide that the appeal on the above ground shall be examined by the panel of at least two-thirds of judges of the Chamber in Civil Cases of the Supreme Court under the rules applicable to cassation proceedings.

Pursuant to Article 334, the panel has power

to reject an appeal;

to quash, in full or in part, the decision at issue and to remit the case for a fresh consideration to the court of first instance, the court of appeal or cassation;

to quash the decision of the court of appeal or cassation and to uphold the decision which was wrongly quashed;

to quash the decisions in the case and to discontinue the proceedings;

to change the decision or to adopt a new decision on the merits of the case.

The decision of the panel is final.

The relevant parts of the Law read as follows:

“This Law regulates relations emanating from: the State's obligation to enforce judgments of the European Court of Human Rights in cases against Ukraine; the necessity to eliminate reasons of violation by Ukraine of the Convention for the Protection of Human Rights and Fundamental Freedoms and protocols thereto; the need to implement European human rights standards into legal and administrative practice of Ukraine; and the necessity to create conditions to reduce the number of applications before the European Court of Human Rights against Ukraine.”

“1. For the purposes of this Law the following terms shall be used in the following meaning:

the Convention – the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto agreed to be binding by the Verkhovna Rada of Ukraine;

the Court – the European Court of Human Rights;

Creditor – a) an applicant before the European Court of Human Rights in a case against Ukraine in whose favour the Court rendered its judgment or in whose case the parties have reached a friendly settlement, or his representative, or his successor...

Enforcement of a judgment – a) payment of compensation to the Creditor; b) adoption of individual measures; c) adoption of general measures;

“1. Individual measures shall be adopted in addition to the payment of compensation and are aimed at restoring the infringed rights of the Creditor.

Individual measures include:

a) restoring as far as possible the legal status which the Creditor had before the Convention was violated (restitutio in integrum);

The previous legal status of the Creditor shall be restored, inter alia, by means of:

a) reconsideration of the case by a court, including reopening of the proceedings in that case;

b) reconsideration of the case by an administrative body.”

“1. The Office of the Government's Agent shall within three days from receipt of the Court's notification that the judgment has become final:

a) send the Creditor a notification explaining his right to initiate proceedings on the review of his case and/or to reopen the proceedings according to the law in force...”


Violations of Art. 3;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants, Mr Viorel Istratii, Mr Alexandru Burcovschi and Mr Roman Luţcan, are Moldovan nationals who were born in 1971, 1970 and 1976 respectively and all live in Chişinău.

The facts of the case, as submitted by the parties, may be summarised as follows (most events happened in the same way and on the same date in respect of all the applicants; whenever facts differ, it is specified in the text).

On 25 October 2004 the Department for Cross-Border and Information Crime of the Ministry of Internal Affairs opened a criminal investigation against the applicants for fraud in connection with the purchase of plots of land in Chişinău, which allegedly cost the State approximately 15,000 euros (EUR).

On 12 November 2004 the prosecutor requested warrants for the pre-trial detention of the applicants. On the same day three Buiucani District Court judges issued warrants for the applicants' pre-trial detention for ten days for the following reasons:

“[Each applicant] is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for more than two years; the evidence submitted to the court was lawfully obtained; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; could obstruct the finding of truth in the criminal investigation or re-offend”.

On 15 November 2004 the applicants appealed against the decisions ordering their pre-trial detention, questioning the grounds for that detention. They submitted that they had appeared before the investigating authorities when summoned and had not attempted to interfere in any way with the investigation or to abscond thereafter. Each applicant emphasised that he had no criminal record, had a family, including minor children, and a permanent residence in Chişinău, and had special medical needs. Mr Burcovschi submitted that he was the only breadwinner in his family and that his detention might cause serious hardship for his family, including his elderly mother who suffered from cardiac disease. Mr Luţcan added that he had come to the investigating authority directly from the maternity hospital and that he had not even seen his son, born on the day he was arrested, and could not give any support to his wife and child.

On 18 November 2004 the Chişinău Court of Appeal rejected the appeals, without responding explicitly to any of the above submissions. It rejected Mr Istratii's appeal for the following reasons:

“In exceptional circumstances, depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused might abscond or put pressure on witnesses, the period of pre-trial detention during the criminal investigation may be prolonged ... taking into account that Mr Istratii is suspected of committing a particularly serious offence, that there is a risk that he could put pressure on witnesses, could abscond from law enforcement authorities; the separation of the suspect from society remains necessary”.

It rejected Mr Burcovschi's appeal for the following reasons:

“The request to remand Mr Burcovschi was examined within the limits of the law and was correctly accepted on the basis of documents in the criminal file, which was opened in accordance with the law and with the need to remand the suspect”.

The Court of Appeal rejected Mr Luţcan's appeal for the following reasons:

“Mr Luţcan is suspected of committing a serious offence for which the law provides a punishment of deprivation of liberty for more than two years; he could abscond from law enforcement authorities or the court; could obstruct the finding of truth in the criminal investigation. ... The lower court correctly reasoned the applicant's remand without committing any procedural violations”.

On 18 November 2004 the Buiucani District Court prolonged the applicants' detention on remand for another 30 days. The applicants made submissions against their continued detention. The court gave similar reasoning in each case, citing Article 186 § 3 of the Criminal Procedure Code ('CPC', see paragraph 24 below).

On 24 November 2004 the Chişinău Court of Appeal upheld those decisions. The court used similar reasoning in each case, finding that:

“The circumstances which were the basis for his detention remained valid; there was a risk that [each applicant] might put pressure on victims and witnesses. In prolonging the remand no violations of the law affecting the lawfulness of the decision have been established”.

The prosecutor obtained decisions from the Buiucani District Court prolonging the applicants' detention on remand on three occasions, in December 2004, January 2005 and February 2005. All of these decisions were upheld by the Court of Appeal. The reasons given for each of these prolongations were similar to those in the court decisions of 18 and 24 November 2004 mentioned above.

The applicants made habeas corpus requests to the investigating judge of the Buiucani District Court, noting, inter alia, that some of their property had been seized by the court and that this would be an additional guarantee of their proper conduct. The requests were rejected in December 2004 and in February 2005. The court used similar reasoning in each case, finding that:

“[the applicant] is accused of committing a particularly serious offence for which the law provides a punishment of deprivation of liberty for more than two years; the prosecution case is not complete and a further criminal investigation is to be conducted, there is a risk that he may abscond from law enforcement authorities; there is a continued need to separate him from society and the grounds for his detention on remand remain valid”.

On 29 April 2005, following another habeas corpus request, the Rîşcani District Court ordered the applicants' release, subject to an obligation not to leave the country, finding that:

“[the applicants] have no criminal record, all have permanent residence, are well appreciated at work, have families and minor dependants. Mr Luţcan suffers from a serious illness, Mr Istratii underwent surgery during detention and needs treatment; all have jobs and none has absconded from the investigation authorities; there is no evidence that they have obstructed the investigation in any manner; the criminal file is now ready for trial; all the prosecution evidence has been gathered and all witnesses have made statements.

Accordingly, the court considers that the accused cannot abscond from the court, obstruct the criminal investigation or commit other crimes and considers it possible to replace the preventive measure of detention on remand with an obligation not to leave the country”.

Between 12 November 2004 and 23 February 2005 Mr Istratii was held in the remand centre of the Centre for Fighting Economic Crime and Corruption in Chişinău (CFECC).

Until 11 February 2004 there were allegedly no medical personnel in that institution. The applicant had an acute crisis of paraproctitis with rectal haemorrhage on 18 November 2004. He was transported to a hospital three hours after the incident. He was handcuffed to a wall heater until his surgery on 19 November 2004 and was guarded at all times by two CFECC officers.

Some four hours after the operation, the CFECC officers accompanying him requested his transfer to the Pruncul detainee hospital. The applicant was admitted to the detainee hospital two and a half hours after leaving the civil hospital where he had been operated upon. Medical reports drawn up after the transfer confirm that Mr Istratii complained about post-surgery problems in the months following his transfer.

In response to the applicant's lawyer's questions, Dr M.E., the surgeon who had operated upon the applicant, wrote that the recovery period after such surgery was typically about one month and that on 1819 November 2004 the applicant had been handcuffed to a wall heater at the request of CFECC officers, who had stayed in his hospital room. According to Dr M.E., the patient could not move after the surgery because of pain and the risk of bleeding.

The Government annexed to their observations of January 2006 an explanatory note written by Dr M.E. The doctor explained that Mr Istratii had not been handcuffed during the surgery, but had been handcuffed to a wall heater before surgery and that no ill-treatment of any kind had been applied to him. The doctor confirmed that a one-month recovery period was necessary after surgery of the type undergone by the applicant.

On 23 February 2005 all three applicants were transferred to the remand centre of the Ministry of Justice in Chişinău (also known as prison no. 3). According to the applicants, they were detained in inhuman and degrading conditions there (see paragraphs 61-65 below).

The conditions in this particular remand centre were reviewed three times by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, see paragraph 29 below). The problem of overcrowding and insufficiency of funding for repairs, meat, fish, dairy products and bedding was also emphasised in two domestic reports (see paragraph 28 below).

The applicants' lawyers asked for permission to have confidential meetings with their clients. They were offered a room where they were separated by a glass wall and allegedly had to shout to hear each other. It appears from the photographs and video recording 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 passing documents between a lawyer and his client.

According to the applicants, they were able to hear conversations between other detainees and their lawyers, which made them refrain from discussing at length their cases. The Government did not dispute this.

The relevant domestic law has been set out in the case of Sarban v. Moldova (no.3456/05, §§ 51-56, 4 October 2005).

In addition, the relevant provisions of the Code of Criminal Procedure read as follows:

“Article 176

“(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are sufficient reasonable grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence.

(2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in paragraph (1).

(3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria:

1) the character and degree of harm caused by the offence,

2) the character of the ... accused,

3) his/her age and state of health,

4) his/her occupation,

5) his/her family status and existence of any dependants,

6) his/her economic status,

7) the existence of a permanent place of abode,

8) other essential circumstances.

Article 186

(3) In exceptional circumstances, depending on the complexity of the criminal case and the gravity of the crime and where there is a risk that the accused will abscond or put pressure on witnesses, destroy or tamper with evidence, the period of pre-trial detention during the criminal investigation may be prolonged...”

Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any procedures regarding persons detained in the remand centre of the CFECC 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 v. Moldova, no. 3456/05, § 126, 4 October 2005).

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 commission which had inspected the CFECC detention centre. During the inspection they asked that the glass partition be taken down in order to check that there were no listening devices. They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration rejected the proposal.

On 24 October 2003 the Parliament adopted decision no. 415-XV, regarding the National Plan of Action in the Sphere of Human Rights for 2004-2008. The plan includes a number of objectives for 2004-2008 aimed at improving the conditions of detention, including the reduction of overcrowding, improvement of medical treatment, involvement in work and reintegration of detainees, as well as the training of personnel. Regular reports are to be drawn up on the implementation of the Plan.

At an unspecified date the Ministry of Justice adopted its “Report on the implementing by the Ministry of Justice of Chapter 14 of the National Plan of Action in the Sphere of Human Rights for 2004-2008, approved by the Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights adopted a report on the implementation of the National Plan of Action. Both those reports confirmed the insufficient funding and related deficiencies and the failure to implement fully the action plan in respect of most of the remand centres in Moldova, including Prison no. 3 in Chişinău. The first of these reports mentioned, inter alia, that “as long as the aims and actions in [the National Plan of Action] do not have the necessary financial support ... it will remain only a good attempt of the State to observe human rights, described in Parliament Decision no. 415-XV of 24 October 2003, the fate of which is non-implementation, or partial implementation”. On 28 December 2005 the Parliament adopted its decision no. 370-XVI “Concerning the results of the verification by the special Parliament Commission regarding the situation of persons detained pending trial in the remand centre no. 13 of the Penitentiaries Department whose cases are pending before the courts”. The decision found, inter alia, that “the activity of the Ministry of Justice in the field of ensuring conditions of detention does not correspond to the requirements of the legislation in force.”

The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), read as follows (unofficial translation):

“76. Although not a deliberate ill-treatment, the CPT is compelled to point out that at prison No. 3, the vast majority of prisoners were subjected to a combination of negative factors - overcrowding, appalling material and hygiene conditions, virtually non-existent activity programmes - which could easily be described as inhuman and degrading treatment.

In contrast, in all the other detention areas, living conditions of the vast majority of the prison population left a considerable amount to be desired. In the most of the cells, the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level. ... In addition, the delegation observed that cells of 8 m² to 9 m² accommodated up to four people.

Furthermore, in these cells access to natural light was very limited, artificial lighting was mediocre, and the air polluted and rank. For prisoners still under investigation (i.e. over 700 prisoners), the situation was even worse, their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows. By force of circumstances, the equipment was reduced to the bare minimum, comprising metal or bunk beds which were extremely rudimentary and in a poor state, and a table and one or two benches. Furthermore, in many cells, there were not enough beds and prisoners had to share them or sleep in turns. In addition, the bedding was in a bad condition; the very small stocks of mattresses, blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame and/or the mattress.

The cells had a sanitary annex, a real source of infection. Above the Asian toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash. Moreover, this area was only partially partitioned by a small low wall less than one metre high, which meant that it was not possible to preserve one's privacy.

The state of repair and cleanliness in the cell blocks, overall, was also of considerable concern. In addition, many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents.

To sum up, the living and hygiene conditions for the vast majority of the prison population were execrable and, more particularly, constituted a serious health risk.”

“37. The CPT recommends that the right of access to a lawyer as from the very outset of custody be rendered fully effective in practice. It also recommends that detainees be able to receive visits from lawyers in conditions fully ensuring the confidentiality of the discussions. ...

In certain prisons, particularly those serving as remand establishments, the situation was exacerbated by sometimes severe overcrowding (as at Prison No. 3 in Chişinău, which in 2001 held 1,892 prisoners, compared with an official capacity of 1,480. ...

The 2001 visit showed how urgent it is for the authorities to put their plans for legislative reforms into effect; the extension of the prison estate does not constitute a solution. As already stressed in the previous CPT report, it is far more important to revise the current legislation and practice concerning detention on remand and sentencing and execution of sentences, and the range of available non-custodial sentences. This is a sine qua non if there is to be any hope in the near future of offering decent conditions in prisons. ...

... the follow-up visit to Prison No. 3 in Chişinău revealed positive changes which the CPT welcomes. It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment.

That said, the appalling living conditions and state of hygiene in buildings I, II and III, including the transit cells, described in paragraphs 80 and 81 of the previous report, had not changed (except as far as access to natural light is concerned). Indeed, the acute overcrowding in these buildings exacerbated matters still further. In the few cells viewed that were properly equipped and fitted out, this was due to the prisoners themselves, who had been able to procure what was needed from their families.”

“b. Remand Centre of the Centre for Fighting Economic Crime and Corruption

The material conditions in this remand centre were in clear contrast to those in the remand centre of the Ministry of Justice. The cells, approximately 14m2, could accommodate a maximum of four detainees. They had access to daylight, had sufficient artificial lighting and were well ventilated. They had partially separated toilets and lavatories, as well as full bed linen (mattress, sheets, pillow, blanket). ...

In sum, the material conditions in this remand centre prove that it is clearly possible to ensure in Moldova adequate material conditions of detention.

The situation in the majority of penitentiaries visited, faced with the economic situation in the country, remained difficult and one recounted a number of problems already identified during the visits in 1998 and 2001 in terms of material conditions and detention regimes.

Added to this is the problem of overcrowding, which remains serious. In fact, even if the penitentiaries visited did not work at their full capacity – as is the case of prison no. 3 in which the number of detainees was sensibly reduced in comparison with that during the last visit of the Committee – they continued to be extremely congested. In fact, the accommodation capacity was still based on a very criticisable 2m2 per detainee; in practice often even less.

The follow-up visit to Prison no. 3 in Chişinău does not give rise to satisfaction. The progress found was in fact minimal, limited to some current repair. The repair of the ventilation system could be done due primarily to the financial support of civil society (especially NGOs), and the creation of places for daily walk was due to support by the detainees and their families.

The repair, renovation and maintenance of cells is entirely the responsibility of detainees themselves and of their families, who also pay for the necessary materials. They must also obtain their own bed sheets and blankets, the institution being able to give them only used mattresses.

... In sum, the conditions of life in the great majority of cells in Blocks I-II and the transit cells continue to be miserable. ...

Finally, despite the drastic reduction of the overcrowding, one still observes a very high, even intolerable, level of occupancy rate in the cells.

... everywhere the quantity and quality of detainees' food constitutes a source of high preoccupation. The delegation was flooded with complaints regarding the absence of meat, dairy products. The findings of the delegation, regarding both the food stock and the communicated menus, confirm the credibility of these complaints. Its findings also confirmed that in certain places (in Prison no.3, ...), the food served was repulsive and virtually inedible (for instance, presence of insects and vermin). This is not surprising, given the general state of the kitchens and their modest equipment.

Moldovan authorities have always emphasized financial difficulties in ensuring the adequate feeding of detainees. However, the Committee insists that this is a fundamental requirement of life which must be ensured by the State to persons in its charge and that nothing can exonerate it from such responsibility. ...”

Resolution (73) 5 of the Committee of Ministers of the Council of Europe concerning the Standard Minimum Rules for the Treatment of Prisoners (adopted by the Committee of Ministers on 19 January 1973), insofar as relevant, reads as follows:

“93. An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”

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), insofar 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.”


Violation of Art. 3;No violation of Art. 5-3 and 6-1 (loss of victim status);Violation of Art. 5-4;No violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On 23 December 1991 the applicant was arrested and charged with murdering in a cruel manner for gain the eightyoneyears' old adoptive mother of a friend of his, Mr H.

On 18 March 1992 he was indicted. The Varna Regional Court held hearings in his case on 20 May, 19 June and 10 July 1992, but on 10 July 1992 discontinued the trial and remitted the case back to the prosecution authorities for the rectification of a breach of the rules of procedure.

Following an additional investigation, on 25 January 1993 the applicant was indicted again. A hearing listed before the Varna Regional Court for 28 February 1993 was adjourned because the applicant's counsel were absent. After holding hearings on 22 March, 26 April and 14 May 1993, in a judgment of 14 May 1993 that court found the applicant guilty and sentenced him to eighteen years' imprisonment.

Both the applicant and the prosecution appealed to the former Supreme Court. A hearing listed for 4 August 1993 was adjourned because the applicant's counsel were on leave, and took place on 20 October 1993. In a judgment of 10 November 1993 the former Supreme Court quashed the applicant's conviction and sentence and remitted the case for further investigation, holding that the Varna Regional Court had failed to substantiate its findings of fact and had erred in assessing the evidence.

On 6 January 1994 the case was transmitted to the investigator. He charged Mr H. with aiding and abetting the applicant. After that the case was twice forwarded to the prosecution and twice referred back for further investigation. That investigation was finished on 20 June 1997 and on 15 July 1997 the applicant and Mr H. were indicted.

Two hearings listed before the Varna Regional Court for 5 November 1997 and 9 February 1998 did not take place. On 9 April 1998 the court granted the applicant's request for the recusal of all prosecutors and judges of that court and sent the case to the Burgas Regional Court. The judge to whom the case was assigned there considered that it should be examined by the Varna Regional Court and sought a ruling on the matter by the Supreme Court of Cassation. In May 1998 the Supreme Court of Cassation held that the case was to be examined by the Varna Regional Court.

The proceedings before the Varna Regional Court then resumed, but at a hearing held on 6 October 1998 the court referred the case back to the prosecution authorities, finding that there had been procedural breaches which had violated Mr H.'s defence rights. On 19 January 1999 the prosecution authorities in turn referred the case back to the investigator, noting, inter alia, that he had not complied with instructions given as early as November 1996.

In January 2001 the prosecution authorities decided to stay the proceedings, as Mr H.'s whereabouts were unknown. Upon the applicant's appeal, their decision was quashed on 11 May 2001 by the Varna Regional Court, which held that the excessive length of the proceedings violated the applicant's rights and criticised the prosecution for having stayed them. The prosecution's ensuing appeal to the Varna Court of Appeals was dismissed on 26 June 2001.

On 9 July 2001 the prosecution authorities referred the case back for further investigation. This investigation was concluded on 15 February 2002 and the case was sent to the prosecution authorities.

On 19 March 2002 the prosecution authorities dropped the charges against Mr H., finding that they had not been sufficiently made out. On 16 May 2002 they indicted the applicant.

The Varna Regional Court held hearings on 30 September, 2 October and 17 December 2002 and 19 February 2003. In a judgment of 19 February 2003 it acquitted the applicant.

Upon the appeal of the prosecution, on 20 June 2003 the Varna Court of Appeals quashed the lower court's judgment and decided the case on the merits. It found the applicant guilty and sentenced him to fifteen years' imprisonment.

The applicant appealed to the Supreme Court of Cassation. After holding a hearing on 17 February 2004, on 30 March 2004 that court quashed the lower court's judgment and remitted the case.

The Varna Court of Appeals examined the case anew. In a judgment of 25 June 2004 it once again found the applicant guilty and sentenced him to fifteen years' imprisonment. In determining the sentence it noted, inter alia, that the criminal proceedings against him had been “particularly lengthy”.

The applicant again appealed to the Supreme Court of Cassation. After holding a hearing on 7 March 2005, in a final judgment of 18 April 2005 that court quashed the lower court's judgment, examined the case on the merits and acquitted the applicant, finding that the charges against him had not been proved beyond a reasonable doubt.

For the examination of the case the authorities interviewed repeatedly about twenty witnesses, appointed several experts and gathered other evidence. The case file reached nine volumes.

On 23 December 1991 the applicant was arrested and remanded in custody on the basis of an investigator's order of 13 December 1991, which stated that he had been charged with an offence punishable with up to twenty years' imprisonment or death, that he did not have a fixed place of abode and that his whereabouts were unknown. There was also a risk that he could endanger the lives of witnesses.

On 23 March 1993 the Varna Regional Court denied an application for release by the applicant, holding that detention was mandatory in the case of persons charged with an offence punishable by more than ten years' imprisonment. An exception was only possible if there was no risk, i.e., it was physically unfeasible for the applicant to abscond or reoffend, which was not the case. A further application for release made on 26 April 1993 was likewise denied by the court, which noted that it had already ruled on such an application a month earlier and there had been no change in the circumstances since then. It also stated that the applicant's arguments concerning the lack of evidence against him went to the merits of the criminal case, not to the issue whether or not he should be released.

On 14 May 1993 the applicant was convicted and sentenced to a prison term. That conviction and sentence were quashed on 10 November 1993 (see paragraphs 12 and 13 above).

After 10 November 1993 the applicant remained in custody. On 21 September 1994 the Varna Regional Prosecutor's Office refused his application for release, reasoning that, in view of the applicant's threats against certain witnesses and a prosecutor, there was a risk that he could hinder the investigation by destroying evidence and suborning and intimidating witnesses.

On an unspecified date in the meantime the applicant made offensive remarks against a prosecutor in a complaint concerning the handling of his case. On 2 September 1994 he was convicted on account of these remarks and sentenced to six months' imprisonment. On an unspecified date he was convicted on other charges concerning events before December 1991 and sentenced to a term of imprisonment. In accordance with the rules on sentencing, he was ordered to serve a nine months' prison term as a result of these convictions and sentences. It appears from the documents in the case file that the applicant did so between 18 November 1994 and 18 August 1995. After that his pretrial detention on the murder charges continued.

On 14 November 1995 the Varna Regional Prosecutor's Office denied an application for release by the applicant. It reasoned that in view of the seriousness of the charges against him pre-trial detention was mandatory by virtue of Article 152 § 1 of the Code of Criminal Procedure of 1974 (“the CCP”). It also stated that it was impossible to use the exception provided for by paragraph 2 of that Article, as its application was excluded by paragraph 3 thereof owing to the fact that there were two other sets of criminal proceedings pending against the applicant (see paragraphs 4851 below).

The applicant submitted a number of other applications for release, some of which were denied by the prosecution authorities and some of which were apparently not replied to. Some of the decisions contained no reasoning, while others stated that his remand in custody was mandatory in view of the seriousness of the charges against him.

The applicant also submitted a number of applications for release to the competent court. He filed such applications on 7 June and 7 November 1997, and on 9 February, 29 April and 10 August 1998. He advanced various arguments regarding the weak case against him, the lack of a risk of fleeing and his weakening health. Most of the applications were dismissed with reference to Article 152 §§ 1 and 2 of the CCP. Thus, in a decision of 24 February 1998 the Varna Regional Court stated the applicant had been charged with a serious intentional offence and his detention was accordingly mandatory under Article 152 § 1 of the CCP. There were no grounds to apply the exception provided for by paragraph 2 of that Article, as a hearing had been listed in the trial against him, whereas his position with regard to the charges revealed a genuine risk that he might abscond or impede the course of justice.

On 9 December 1998 the Varna Regional Court ordered the applicant's release on bail, holding that after seven years of detention and several rounds of investigation there was no risk of him jeopardising the investigation. There was furthermore no indication that he could flee or reoffend. The court also said that the length of the applicant's detention had exceeded a “reasonable time” within the meaning of the Convention. It set the bail at 2,000,000 old Bulgarian levs (BGL), without providing reasons as to the amount. Its order was not subject to appeal (see paragraph 54 below).

The applicant was not released immediately as he was unable to secure the amount. Following an unsuccessful attempt to have it reduced by the court, he posted bail and was released on 17 December 1998.

The applicant spent his time in custody (23 December 1991 – 17 December 1998) on the premises of the Varna Regional Investigation Service and in the Varna Prison. It appears from the documents in the case file and the parties' submissions that throughout the bulk of this time he was in the Varna Prison, and was kept in the Varna Regional Investigation Service's detention facility during six unspecified periods (probably when the proceedings against him were pending at the pretrial stage), the latest of which ended on 10 June 1997. The parties did not specify the exact periods when the applicant was kept on the Investigation Service premises, despite being requested to do so after the case was declared admissible (see paragraphs 6 and 7 above).

At the relevant time, the cells of the Varna Regional Investigation Service's detention facility had central heating and were each – save for two – equipped with an en suite toilet. Natural light came through glass tiles secured by metal bars. According to the applicant, the influx of natural light was limited. The detainees slept on plank beds. The applicant averred that at times he had been detained together with eight other persons in a cell measuring five to three meters. According to him, the ventilation system in the cell only worked for a few hours a day. He also stated that there was no openair exercise area on the premises. He was accordingly not allowed to take walks. Visitors were allowed only once a month. Food was of extremely poor quality.

According to the Government, the premises of the Varna Regional Investigation Service's detention facility were relatively new, built in 1982, offered conditions better than those of the Investigation Service's detention facilities in other towns, and were in line with the minimum European standards. The Government did not comment on the number of inmates kept in the applicant's cell.

The applicant submitted that in the Varna Prison he was kept in a cell measuring ten square meters, which he shared at times with three or four other inmates. According to him, during the nights they had to relieve themselves in a bucket kept in the cell. In 199293 warm water for bathing was available once a week, whereas later, in 1998, a warm shower was possible only once a month with the result that he often had to take showers with cold water, which had a negative impact on his health. He was allowed to take walks for approximately forty minutes a day.

The Government did not comment on the conditions in the Varna Prison.

During his time in custody the applicant was examined by a doctor on unspecified dates, apparently each time he was transferred from the Varna Prison to the Varna Regional Investigation Service's detention facility, and was found to be physically healthy. However, in July 1998 he was diagnosed with tuberculosis, for which he was treated in hospital between 14 July and 12 August 1998. Apparently he continued to receive medication for his illness after he was released from hospital. Reports on the applicant's mental health noted that he suffered from depression.

On 2 November 2000 the applicant issued a civil action against the Prosecutor's Office and the Varna Regional Investigation Service in the Sofia City Court. In his statement of claim he described the allegedly excessive length of the criminal proceedings against him and of his detention and pointed to the attendant negative consequences, such as a smear campaign against him in the press, a worsening of his health, the retention of the bail amount and a prohibition to leave the country. He alleged that this breached his rights under Article 5 of the Convention, his right under Article 6 § 1 of the Convention to a trial within a reasonable time, and his right under Article 8 of the Convention to respect for his private life. He claimed 50,000 new Bulgarian levs (BGN) in damages. He also requested the court to order the defendants to return the bail amount and allow him to leave the country.

Following instructions by the court to specify his request for relief, in three additional memorials the applicant indicated that he requested BGN 20,000 for the breach of his right to a trial within a reasonable time, BGN 15,000 for the injury to his reputation resulting from the impression, stemming from the length of the proceedings, that he was guilty of the offence alleged against him, and BGN 15,000 for the impossibility to leave the country during the pendency of the proceedings. He also stated that his claim was under section 1 of the State Responsibility for Damage Act of 1988 (see paragraph 56 below).

In a judgment of 29 July 2002 the Sofia City Court dismissed the applicant's action, holding that the defendants, being part of the judicial branch, did not carry out “administrative action” within the meaning of section 1 of the abovementioned Act in performing their duties relating to the processing of the criminal case against the applicant. They could hence not be found liable for a breach of that provision. On the other hand, the applicant did not plead a breach of section 2 of the Act and there was no indication that at that point in time the facts alleged by him fell within its purview. Noting that the applicant had been exempted from paying the court fee up front, the court, acting in pursuance of section 10(2) of the State Responsibility for Damage Act of 1988 (see paragraph 59 below), ordered him to pay BGN 2,000 in fees.

Upon the appeal of the applicant, on 24 January 2003 the Sofia Court of Appeals affirmed with almost identical reasoning.

The applicant appealed on points of law to the Supreme Court of Cassation. In a final judgment of 23 December 2005 that court fully quashed the lower courts' judgments and awarded the applicant BGN 5,000 (2,556.46 euros (EUR)), plus interest as from 2 November 2000, the date of the filing of the action. It also ordered the defendants to pay the applicant's legal costs, amounting to BGN 1,340 (EUR 685.13). The court described in some detail the unfolding of the criminal proceedings against the applicant and his pre-trial detention, and found that the applicant's reliance on the provisions of the Convention was wellfounded. It stated that the length of the pre-trial detention had breached the law. It also found that at the material time and until 2003 Bulgarian law did not set any timelimits for finishing the pre-trial phase of criminal proceedings. The provision that controlled this was therefore Article 6 § 1 of the Convention, which was part of domestic law. The period between 1991 and 2003 – throughout which the criminal charges against the applicant had not been determined and during which the applicant could not use any mechanism to speed up the proceedings – was significant and exceeded the reasonable time for examining the case. In such situations, where national law did not provide a possibility to vindicate infringed rights, they could be vindicated under international treaties which had been ratified by Bulgaria and had become part of its domestic law. For instance, Article 13 of the Convention, thus applicable, required an effective remedy against any alleged violation of that Convention. The inaction of the investigation and the prosecution authorities and the courts had infringed the applicant's right to a trial within a reasonable time and had caused him nonpecuniary damage. Taking into account that the applicant had sustained non-pecuniary damage on account of a pre-trial detention exceeding the time-limit provided by law and the failure to bring the criminal proceedings against him to an end between 1995 and 2003, and ruling in equity, the court considered that the damage could be made good by an award of BGN 5,000. It did not order the applicant to pay any court fees or costs for the remainder of his claim.

By Article 116(1), (7) and (9) of the Criminal Code of 1968, as worded at the time when the applicant was arrested and charged, premeditated murder committed in a particularly atrocious fashion and for gain was punishable by fifteen to twenty years' imprisonment or death. In 1995 life imprisonment also became one of the possible penalties. In 1998 the death penalty was abolished and replaced by life imprisonment, with or without parole.

Paragraphs 1 and 2 of Article 152 of the CCP, as worded at the relevant time and until June 1995, provided as follows:

“1. Detention pending trial shall be ordered [in cases where the charges concern] an offence punishable by ten or more years' imprisonment or death.

In the cases under the preceding paragraph [detention pending trial] shall not be imposed if there is no danger of the accused evading justice or committing further offences.”

Between June 1995 and August 1997 these provisions provided:

“1. Detention pending trial shall be ordered [in cases where the charges concern] a serious intentional offence.

In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused's absconding, obstructing the investigation, or committing further offences.”

At the relevant time Article 93 § 7 of the Criminal Code of 1968 defined a “serious” offence as one punishable by more than five years' imprisonment, life imprisonment, or death.

The former Supreme Court's prevailing practice at the material time was to construe Article 152 § 1 of the CCP as requiring that a person charged with a serious intentional offence be remanded in custody. An exception was only possible, in accordance with paragraph 2 thereof, where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).

Paragraph 3 of Article 152 of the CCP, as in force between June 1995 and August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender.

Accused whose release on bail had been ordered have to remain in detention until they deposit the requisite amount (Article 150 § 5 of the CCP).

On the basis of the relevant law before 1 January 2000 and the Supreme Court's practice outlined above, when ruling on the applications for release of persons charged with a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the reasonable suspicion against them and the existence of a risk of their absconding or committing other offences. In their view, every person accused of a such an offence had to be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court's decisions cited above and the decisions of the domestic authorities criticised by the Court in, inter alia, the cases of Nikolova v. Bulgaria [GC], no. 31195/96, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001; and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).

At the relevant time the firstinstance court's decision pursuant to an application for release was not subject to appeal (Article 152a § 3 of the CCP, as in force between August 1997 and 1 January 2000).

New Article 152b § 12 of the CCP, in force since 1 January 2000, as well as Article 65 § 11 of the Code of Criminal Procedure of 2005, which superseded it on 29 April 2006, provide that persons who remain in custody because they are unable to post bail are entitled to judicial review of their detention. In a binding interpretative decision of 25 June 2002 the Supreme Court of Cassation, construing the provisions of the CCP relating to pretrial detention, as amended on 1 January 2000, stated, inter alia, that in examining applications for release from pretrial detention the courts had to review, among other things, the lawfulness of detention resulting from the accused's failure to post bail (тълкувателно решение № 1 от 25 юни 2002 г. по н.д. 1/2002 г., ОСНК на ВКС).

Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), as in force at the relevant time, read as follows:

“The State shall be liable for the damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action.”

Section 2 of the Act, which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant:

“The State shall be liable for damage caused to individuals by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds;

accusation of a crime, if the accused has been acquitted...”

In a binding interpretative decision of 22 April 2005 (тълкувателно решение № 3 от 22 април 2005 г. по гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation held, inter alia, that where the accused has been acquitted, the State is liable not only for the bringing of criminal charges, as specified by section 2(2) of the Act, but also for the pretrial detention imposed during the proceedings. The compensation for nonpecuniary damage should encompass the damage suffered on account of both, whereas the compensation for pecuniary damage should be assessed separately. In previous judgments (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) the Supreme Court of Cassation has awarded compensation in such circumstances under section 2(1) of the Act. The view taken appears to have been that in such cases the acquittal retroactively had rendered the pretrial detention unlawful.

By section 10(2) of the Act, no court fees or costs are payable by plaintiffs upon the filing of actions under it, but in case the actions are eventually fully or partly dismissed, the court orders them to pay “the court fees and costs due”. The courts have construed this provision as meaning that the plaintiff should pay court fees and costs pro rata the dismissed part of his claims.

The CPT visited Bulgaria in 1995 and 1999. While it did not inspect the Varna Regional Investigation Service's detention facility and the Varna Prison, both of its reports include general observations about all Investigation Service's detention facilities, and its 1999 report includes observations on the high incidence of tuberculosis infections in the prisons during the preceding several years.

In this report (CPT/Inf (97) 1) the CPT found that most, even if not all, of the Investigation Service's detention facilities were overcrowded. With the exception of one facility where conditions were better, they were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in a bucket kept in the cell; although according to the internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of outofcell activity was provided to the inmates.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.

The CPT also noted that family visits were only possible with a permission. As a result the detainees' contact with the outside world was very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their duty to provide detention conditions consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities agreed that the CPT's assessment was “objective and correctly presented”, but indicated that the possibilities for improvement were limited by the country's difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed to allow detainees to leave their cells during the day to use a toilet facility, unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully complied with, that cell lighting and ventilation be improved, and that pretrial detainees be as much as possible transferred to prison even before the preliminary investigation was completed. The need to afford detainees the opportunity for outdoor exercise was to be examined as a matter of urgency.

In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements.

In most places visited in 1999, the conditions of detention on the Investigation Service's premises remained generally the same as those found during the CPT's 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even worsened.

The CPT also observed that in the recent years there had been an increase in the incidence of tuberculosis cases in the Bulgarian prison system. It found that although certain efforts had been made to combat this disease, the steps taken by the authorities to ensure the medical screening of prisoners did not measure up to the relevant international standards. The CPT recommended that the authorities increase their efforts to implement these standards in the field of tuberculosis control (in particular, provide appropriate training and instructions to the prison doctors). During its visit to the Burgas Prison the CPT found that the conditions (in particular, the overcrowding and the poor lighting and ventilation) in the cells accommodating inmates suffering from tuberculosis, coupled with the limited possibilities for outdoor exercise, were conducive to the spread of the disease. Accordingly, it recommended that the authorities reduce the occupancy levels in these cells, improve access to natural light and ventilation, and enable the prisoners to maintain a level of personal hygiene consistent with the requirements of their state of health.


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Ruslan Anatoliyovych Ulyanov, is a Ukrainian national who was born in 1970 and lives in Kremenchuk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

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

On 8 August 2001 the applicant, a lawyer by profession, entered into a legal services agreement with a company, K. Under that agreement K. transferred to the applicant certain bookkeeping documents relating to an ongoing tax dispute with the Kremenchuk Tax Office (“the Tax Office”).

On an unspecified date the Tax Office investigator instituted criminal proceedings against the managing directors of K. for engaging in prohibited commercial activity and forging official documents. An expert bookkeeping examination was ordered in the case.

On 11 March 2002, following a request by the investigator, the Kryukivskyy District Court of Kremenchuk (the “District Court”) ordered the seizure of K.'s bookkeeping documents, which had been transferred to the applicant, from the applicant's home and other property. In its reasoning the District Court noted that the applicant had refused the investigator's request to produce the documents he had received from K. despite the fact that they were needed for an expert examination in the course of criminal proceedings against K.'s managing directors.

At about 4 p.m. on the same day police officers from the Tax Office, some wearing masks, entered the applicant's office during a meeting with clients. Referring to the court order for seizure, the officers requested K.'s documents. The applicant refused to produce the documents, arguing that they were privileged under the Bar Act. The applicant was then ordered to stand up and face the wall, following which a masked officer searched him. He was then ordered to empty his pockets.

At 4.30 p.m. the applicant was taken from his office, placed in the police car and driven to the Tax Office. According to the applicant, he was forced to leave his office because of his refusal to produce the documents. According to the Government, the applicant agreed to follow the officers of his own free will.

At 5.30 p.m., after an interview with the head of the Tax Office, the applicant was driven back to his office.

On 12 March 2002, at the investigator's request, the District Court ordered a search of the applicant's home and other property, noting that on 11 March 2002 he had refused to produce documents pursuant to the previous court order for seizure.

That night the tax officers searched the applicant's office, car and home but failed to find K.'s documents.

On 12 March 2002 the applicant lodged a complaint under Article 248-1 of the Code of Civil Procedure (the “CCvP”), claiming that the officers from the Tax Office who had tried to seize the documents in his office on 11 March 2002 had acted in contravention of the Bar Act. He further claimed that the masked officer had unlawfully ordered him to face the wall, searched him and requested him to empty his pockets. Lastly, the applicant argued that the officers had detained him unlawfully for an hour.

On 19 January 2004 the District Court partly upheld the applicant's complaint of 12 March 2002 against the Tax Office, finding that the tax police officers had unlawfully tried to seize documents from the applicant which had been entrusted to him in the course of his professional activities, and that the masked officer had acted unlawfully in ordering the applicant to face the wall, searching him and requesting him to empty his pockets. The District Court further established that the applicant had been detained between 4.30 p.m. and 5.30 p.m. on 12 March 2002, but declined to declare that detention unlawful as the applicant had failed to provide any evidence in that regard.

On 20 April 2004 the Poltava Regional Court of Appeal (“the Court of Appeal”) considered the appeal by the Tax Office. Referring to the exceptions to the jurisdiction of the courts listed in Article 248-3 of the CCvP, the Court of Appeal stated that the applicant's complaint could not be considered in the course of that type of judicial proceedings. It therefore quashed the judgment of 19 January 2004 and discontinued the proceedings in that case.

On 20 May 2004 the applicant lodged an appeal in cassation against the decision of 20 April 2004.

On 9 December 2008 the Higher Administrative Court rejected the applicant's appeal in cassation. The applicant did not provide a copy of that decision.

On 7 May 2002, relying on Article 248-1 of the CCvP, the applicant lodged two complaints with the District Court requesting it to annul the court orders of 11 and 12 March 2002 authorising the search and seizure operations. He claimed that both orders were unlawful as they had been made in breach of the guarantees provided by the Bar Act.

On 31 May 2002 the District Court rejected the complaints as inadmissible. It relied on Article 248-3 of the CCvP, under which the courts did not have jurisdiction for dealing with such complaints.

On 10 October 2002 the Court of Appeal upheld the decisions of the District Court of 31 May 2002.

On 15 October 2003 the Supreme Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the search order.

On 2 April 2008 the Higher Administrative Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the seizure order.

Article 110 of the Code provides, inter alia, that the acts and decisions of a body of inquiry can be challenged before a court. The relevant complaints shall be considered by the court during the preliminary hearing or the trial unless another procedure established by this Code applies.

Article 177 of the Code provides, inter alia, that a search of a person's home and other property may be conducted only pursuant to a reasoned court order, except in emergencies. If a search is needed, the investigator lodges a request, approved by a prosecutor, with the court located in the district where the investigation is being carried out. A judge is required immediately to examine the request in the light of the case file, and, if necessary, to hear submissions from the investigator and the prosecutor, following which he may authorise the search request or reject it. A court order authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days.

Article 178 of the Code provides, inter alia, that the seizure of documents and other items relating to criminal proceedings found in a person's home or other property may be effected only on the basis of a reasoned court order made in accordance with the procedure laid down in Article 177 of the Code.

Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court.

Article 248-3 §§ 1 and 4 of the Code provided that such complaints were outside the courts' jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor's office or court which could be challenged by a different procedure.

In accordance with Article 248-6 of the Code, if such a complaint concerned a dispute that had to be resolved in civil adversarial proceedings, the court had to decline to examine the complaint and explain to the claimant that he was entitled to lodge a civil claim.

In this decision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor's offices in cases where the legislation provided only for a non-judicial remedy. It further found that that Article did give the courts jurisdiction to hear complaints concerning the decisions, acts or omissions of court officials if those decisions, acts or omissions were confined to the performance of administrative functions.

The relevant provisions of the Act have been summarised in the judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006).

Section 10 of the Act provides that documents relating to an advocate's professional activity may not be examined, divulged or seized without the advocate's consent.


Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in 1981 and 1961 respectively and lived in Diyarbakır.

On 5 May 1999 the applicants were laid off by the Diyarbakır Sur Municipality (“the Municipality”), with which they had been temporarily employed.

The applicants subsequently brought separate actions before the Diyarbakır Labour Court against the Municipality, claiming outstanding salaries, dismissal indemnities, severance pay and other pecuniary rights.

On 23 December and 11 November 1999, respectively, the labour court granted the applicants' request and ordered the payment of 324,681,000 Turkish liras (TRL) to the first applicant and TRL 927,531,000 to the second applicant, together with interest. In the absence of an appeal, these judgments became final on 3 January 2000 and 22 November 1999, respectively.

At the date of introduction of the applications, the judgment debts were still outstanding. However, in the meantime, friendly settlement agreements were reached between the applicants and the Municipality on 31 July 2008 and 10 February 2005, respectively, and the relevant payments were made to the applicants.

The relevant domestic law and practice in force at the material time are outlined in Ekici and Others v. Turkey (no. 28877/03, §§ 11-13, 23 September 2008).