The applicant is a commercial private limited liability company which was established in 1996. Its registered name is SIRMIUM, spol. s r.o. and it was represented before the Court by Ms Z. Kupcová, a lawyer practising in Bratislava. The respondent Government were represented by Mrs A. Poláčková, their Agent.

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

In 1993 the National Council of the Slovak Republic (“Parliament”) enacted a law (Law no. 189/1993 Coll. – “the Act”), by which it established the Fund for Children and Youth (Fond detí a mládeže – “the Fund”).

The Fund had its own legal personality and its principal task was to manage State property, as defined in the Act, in order to promote children’s and youth activities. In pursuit of that task, the Fund was authorised to engage in business activities.

On 22 June 2000 Parliament enacted an amendment (Law no. 220/2000 Coll.) to the Act. It entered into force on 21 July 2000.

Under section 3a(1) of the amended Act, any lease of property administered by the Fund for a period of more than 5 years necessitated the approval of the Ministry of Administration and Privatisation of National Property (Ministerstvo pre správu a privatizáciu národného majetku – “the Ministry”). Pursuant to section 15a(1) of the amended Act, existing leases with a term of more than five years would be terminated automatically ex lege six months after the entry into force of the amendment, unless they were approved by the Ministry. Under section 15a(2) and (3), if a lease was terminated as described above, the tenant was to vacate the property on pain of a financial penalty equal to ten times the monthly rent for each commenced month of default. The Fund was to compensate the tenant for improvements and repairs on the leased property, provided that the Fund had approved them and had undertaken to reimburse their cost.

According to the explanatory note (dôvodová správa) on the amendment, the aim of the amendment was to lay down basic rules and minimum standards for effective management of the State’s property in furtherance of the aims pursued by the Act. It was noted that the core of the Fund’s economic activities consisted in leasing out the property it managed. However, the leases had frequently been concluded on inadequate terms and for an excessive period, aspects which had to be regularised.

On 18 September 2000 a group of members of parliament challenged the amendment in the Constitutional Court (Ústavný súd). They were later joined in their challenge by the Prosecutor General.

On 12 October 2000 the Constitutional Court accepted the challenge for further examination.

On 17 January 2002 the Constitutional Court declared the whole of section 15a and certain other sections of the Act, as amended in 2000, contrary to several provisions of the Constitution. It held, inter alia, that these provisions infringed the principles of the division of State power, the prohibition of retroactivity, legality and access to a court. It was observed that they retroactively interfered with contractual arrangement of a private-law nature and bypassed the jurisdiction of the ordinary courts. Section 3a of the amended Act remained unaffected.

On 1 February 2002 the judgment (nález) of the Constitutional Court was published in the Collection of Laws. By operation of Article 125 § 3 of the Constitution, the unconstitutional provisions of the Act thus lost their legal effect. As Parliament took no steps to rectify them, six months later these provisions became void.

On 30 October 2003 Parliament passed a special law repealing the whole of the Act and winding up the Fund. This law (Law no. 4562/2003 Coll.) entered into force on 1 December 2003. As a consequence, the Fund entered into liquidation. The relevant procedure is still pending.

In 1996 the applicant company concluded an agreement with the Fund for the lease of commercial premises comprising a hotel for a term of 20 years.

The applicant company took over the leased premises, invested substantially in their renovation, and ran a hotel in them.

Following the entry into force of the 2000 amendment to the Act, the applicant company sought the Ministry’s approval of the lease. On 18 August 2000 the Ministry declined to approve the lease. Consequently, the lease expired on 21 January 2001.

The applicant company then made several requests for the Fund to take over the premises. The Fund did so, but no earlier than 5 April 2001. The applicant company claims that until then it had to maintain the premises in order to prevent their deterioration and that it consequently incurred added expense and sustained material damage.

The applicant company also submits that, at that time, it did not know that the amendment had been challenged in the Constitutional Court and that the challenge had been accepted for further examination.

The applicant company subsequently ceased its commercial operations.

Another company, E.-M., leased commercial premises from the Fund. The lease was for a fixed term of 30 years.

On 7 March 2001, at the company’s request, the Bratislava I District Court (Okresný súd) indicated an interim measure ordering the Fund to allow the company to enjoy the premises peacefully. At the same time, the company was invited to bring, within 30 days, an action for a declaratory ruling that the lease agreement existed. The interim measure would stay in place until the final settlement of that action. In its rulings the District Court observed that the 2000 amendment to the Act had been challenged in the Constitutional Court and that the proceedings were still pending.

The E.-M. company brought the action as it had been invited to do and the proceedings are still pending.

Another company, Y., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry declined to approve it.

The Fund brought an action for Y. to vacate the premises. On 17 December 2004 the Bratislava I District Court dismissed the action. It observed that the 2000 amendment was aimed at terminating leases such as the one concluded by Y. However, it had no actual effect on the lease in question because it had been automatically renewed by virtue of Article 676 § 2 of the Civil Code, which provided for the renewal of leases where, as in the present case, the landlord failed to apply within 30 days of the purported expiry of the lease for the premises to be vacated. The District Court also took notice of the Constitutional Court’s judgment of 17 January 2002 and held that legal relationships could not be based on unconstitutional laws.

An entrepreneur, M., leased commercial premises from the Fund. The lease was likewise for a fixed term of 30 years and the Ministry did not approve it. M. then vacated the premises.

On 5 August 2003 M. brought an action against the State, in the person of Parliament. He made further submissions on 28 February 2005. Relying on the Constitutional Court’s judgment of 17 January 2002, he argued that the termination of the lease in 2001 had been unconstitutional and, as such, unlawful. He invoked the State Liability Act of 1969 (Law no. 58/1969 Coll.) and claimed damages. The action is still pending.

Another company, E.-B., also had a long-term lease on premises administered by a subsidiary of the Fund. It declined to leave them, and in 2001 the Fund brought an action for its eviction.

The action was dismissed by the Liptovský Mikuláš District Court on 11 September 2002 and, on appeal, by the Žilina Regional Court on 13 September 2005. The courts observed that the relevant provisions of the 2000 amendment were unconstitutional and legally void. They could therefore not be used as a basis for a finding that the lease had expired and, consequently, for an order to vacate the premises. With reference to section 41b(2) of the Constitutional Court Act (Law no. 38/1993 Coll. – see “Relevant domestic law and practice” below), the courts found that even if an eviction order had been made in the circumstances of the case, it would not have been enforceable.

Article 125 of the Constitution provides:

“1. The Constitutional Court shall decide on the conformity of

(a) laws with the Constitution, constitutional laws and international treaties to which the National Council of the Slovak Republic has expressed its assent and which have been ratified and promulgated in the manner laid down by law,

If the Constitutional Court finds a lack of conformity between legal instruments referred to in paragraph 1, the relevant instruments, parts of them or certain of their provisions shall lose their effect. The bodies that issued these legal regulations shall be obliged to harmonise them with the Constitution, with constitutional laws and with international treaties promulgated in the manner laid down by a law, and also, in the case of instruments referred to in paragraph 1 (b) and (c), with other laws, and in the case of instruments referred to in paragraph 1 (d), with government regulations and with generally binding legal regulations issued by ministries and other central State administrative bodies within six months from the promulgation of the decision of the Constitutional Court. If they fail to do so, these instruments, parts of them or their provisions shall lose their effect six months after the promulgation of the decision.”

Chapter (hlava) 2 of Part (časť) 3 lays down rules concerning the review of conformity of legislation. It contains, inter alia, the following provisions:

“(1) The legal instrument, parts of it or some of its provisions shall lose their legal effect on the date on which the judgment of the Constitutional Court is published in the Collection of Laws.

(3) The fact that a legal instrument loses its legal effect or validity on the basis of the judgment of the Constitutional Court shall not entail the renewal of the validity of any legal instruments which it repealed. However, if the original legal regulations were merely changed or amended, they shall be valid in the form prior to the [annulled] amendment.

“(1) If a court has delivered a judgement in criminal proceedings on the basis of a legal instrument which later lost its effect pursuant to Article 125 of the Constitution, and the judgment has become final but has not been executed, the loss of the legal effect of the said instrument shall constitute a ground for reopening the case under the relevant provisions of the Code of Criminal Procedure.

(2) Other final decisions which were given in civil or administrative proceedings on the basis of a legal instrument that has lost its legal effect either totally or in part shall remain unaffected. Obligations imposed as a result of such decisions cannot, however be enforced.”

Chapter 7 of Part 8 lays down rules concerning lease agreements. Section (oddiel) 3 deals with termination of leases and contains, inter alia, the following provisions:

“1. A lease shall terminate on the expiry of the term for which it was concluded, unless the parties agree otherwise.

If the lessee uses the object of the lease after the termination of the lease and the lessor does not bring an action for restitution of the object within 30 days, the lease agreement shall be renewed on the same terms as agreed originally...”

Article 80 contains general rules concerning the types and the scope of actions (návrh na začatie konania) in civil courts. It provides:

“Civil actions may be aimed at obtaining rulings concerning, in particular:

(a) personal status...,

(b) fulfilment of an obligation which stems from law, contract or breach of law;

(c) determination of whether a particular legal relationship or a right exists or does not, provided that the determination is justified by a pressing legal interest.”

The scope of the Act is defined in section 1, which provides that the State is liable for damage caused by unlawful decisions by its bodies and agencies in civil proceedings, administrative proceedings, criminal proceedings (with the exception of decisions concerning detention and penalties) and proceedings before notaries.

Under section 4(1), a claim for damages can be brought only if the impugned decision was quashed for being unlawful by the competent authority.

Section 18(1) renders the State liable for damage caused by wrongful official conduct on the part of State bodies and authorities in carrying out their functions.

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act by a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question.


The applicant is a Dutch national, born in 1948, and resident in Enkhuizen. He is represented before the Court by Ms Y.E.J. Geradts, a lawyer practising in Amsterdam.

a. Particular circumstances of the present case

The applicant had, until mid 1991, a shop in Amsterdam where he sold telecommunication equipment. In 1989 and 1990, he traded in illegal cordless telephones, i.e. cordless telephones which were not allowed to be used in the Netherlands and other Member States of the European Union given the frequencies used by these telephones.

The telephones were sold by a Belgian Company M.D.B. to a Dutch company C.C. The latter company’s director, B.B., made invoices in respect of these telephones to a fictitious person at a fictitious address in the Netherlands Antilles. In fact the telephones were not shipped to the Antilles but were directly delivered by M.D.B. to the applicant, who subsequently sold them. After a certain time, the telephones were no longer sold via C.C., but through the C.T.C. company of which B.B. was also director.

On 28 August 1990, the Fiscal Intelligence and Investigation Department (Fiscale Inlichtingen en Opsporingsdienst; "FIOD") conducted a search at the C.C. company and, on the same day, went to the applicant’s shop for an inspection of the shop’s business administration. The applicant was absent that day and could not be reached. With the consent of the shop’s bookkeeper, the FIOD took away documentation concerning part of the shop’s business administration for verification purposes.

On 12 June 1991, pursuant to Article 81 of the General Act on State Taxes (Algemene Wet inzake Rijksbelastingen) which authorises seizure of items for the purpose of investigation of fiscal criminal offences, the FIOD seized the entire business records of the applicant’s shop for the years 1987, 1988, 1989 and 1990. On 16 September 1991, on his own initiative, the applicant went to the FIOD in order to give a statement about his involvement in the cordless telephone trade. On the same day, he was taken into custody (inverzekeringstelling) and was subsequently held for questioning for the next three days. He was released on 19 September 1991. In the course of this investigation the applicant was questioned for the last time on 28 January 1992.

On 10 January 1994 the prosecution authorities issued a summons, ordering the applicant to appear on 2 February 1994 before the Regional Court (Arrondissementsrechtbank) of Alkmaar on the charges of, inter alia, forgery, committed either alone or in association with others in respect of three invoices for telephones or, alternatively, to have been an accessory to the commission of forgery in respect of these invoices. Further charges of forgery were brought against the applicant in relation to the importation by the C.C. company for B.B. of a boat the latter had bought in Spain and the exportation of a boat by B.B. to Spain.

Insofar as relevant, the charges contained in the summons read as follows:

<Translation>

"that he, the suspect, at various points in time in or about the period between 1 January 1989 and 10 May 1990 in the Municipality of Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise to a disadvantage,

the cited false making or falsifying of this/these invoice(s) consisting in that he, the suspect, together and in association with his fellow perpetrators, at least alone, falsely and/or contrary to the truth

has made or had made an invoice numbered 890120, dated 04-08-89 and addressed to Tony Bosch in Aruba, concerning (the delivery of) 1020 telephones (file Case 1, see 1/D/143),

and/or

has made or had made an invoice numbered 890215, dated 30-11-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1098 telephones (file Case 1, see 1/D/146),

and/or

has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135);

Alternatively, in case the above under 1. would not or could not lead to a conviction:

Trading company C.C. B.V., at various points in time in or about the period between 1 January 1989 and 10 May 1990 in Hoorn, in any case in the Netherlands, together and in association with others or one other, at least alone, has falsely made or has falsified one or more invoices, (each) being a document destined to serve as proof of a fact, with the aim to use this/these invoice(s) or to have this/these invoice(s) used by others as real and authentic, whereas such use could give rise (each time) to a disadvantage,

the cited false making or falsifying of this/these invoice(s) consisting in that above cited company together and in association with its fellow perpetrators, at least alone, falsely and/or contrary to the truth

and/or

and/or

has made or had made an invoice numbered 890235, dated 22-12-89 and addressed to J.v.d. Bosch in St. Maarten, concerning (the delivery of) 1500 telephones (file Case 1, see 1/D/135),

to which and/or the commission of which offences he, the suspect, in or about the period between the month January 1989 and the month May 1990, in the Municipality of Hoorn, in any case in the Netherlands, has intentionally provided the opportunity, means and/or information and/or has intentionally provided assistance by dictating, or providing, the information contained in the above cited invoice(s) to the cited company, or to one or more of its staff members; ... ."

By judgment of 13 April 1994, following adversarial proceedings, the Regional Court convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to twelve months’ imprisonment, suspended pending a probation period of two years, and payment of a fine of NLG. 200,000 from which fine NLG. 50 was to be deducted for each day the applicant had spent in pre-trial detention. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam.

In its judgment of 15 March 1996, following adversarial proceedings, the Court of Appeal quashed the judgment of 13 April 1994, convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to six months’ imprisonment, with deduction of the time spent in pre-trial detention, suspended pending a probation period of two years, and payment of a fine of NLG. 50,000.

The Court of Appeal rejected the applicant’s argument that the summons should be declared null and void in that the charges brought against him, as stated in the summons, were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue. The Court of Appeal held that the summons was in conformity with the relevant requirements under Article 261 of the Code of Criminal Procedure (Wetboek van Strafvordering) and that, given the text and structure of the charges, there could be no misunderstanding that it concerned the commission of forgery in different factual forms. It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself. Moreover, during the applicant’s trial, it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him.

As to the applicant’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under Article 6 § 1 of the Convention, the Court of Appeal held that the proceedings at issue had started on 16 September 1991 when the applicant was arrested and detained on remand. It agreed that the applicant’s case had not been dealt with within a reasonable time within the meaning of Article 6 § 1 of the convention. After having weighed the applicant’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution, the court decided that it would accept the applicant’s prosecution but that it would take this finding into consideration in the determination of the applicant’s sentence.

In the determination of the applicant’s sentence, the Court of Appeal considered that the applicant’s actions had deprived the community of an estimated amount of NLG. 900,000 in taxes, this in a large part to the applicant’s personal benefit, and that a prison sentence of six months and payment of a fine of NLG. 150,000 would be an appropriate sentence. However, on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time, the Court of Appeal decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to NLG. 50.000.

The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 15 April 1997. The applicant’s complaints about the rejection by the Court of Appeal of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by the Supreme Court under Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) as not prompting a determination of legal issues in the interests of legal unity and legal development.

b. Relevant domestic law

Article 261 of the Code of Criminal Procedure, insofar as relevant, reads as follows:

<Translation>

“1. On penalty of nullity, the summons shall contain a description of the fact [with which the defendant is] charged, including the approximate time and location where it has allegedly been committed.

The summons shall further set out the circumstances under which the fact has allegedly been committed.

Article 225 of the Netherlands Criminal Code, as in force at the relevant time, provides as follows

<Translation>

“1. Any person who counterfeits or falsifies a document from which any right or obligation may arise or which may result in any discharge of a debt, or which is to be used as evidence of any fact, such with the aim of using it or enabling others to use it as if it were genuine and unfalsified, shall, if any damage could arise from such use, be guilty of forgery and liable to a term of imprisonment not exceeding six years and a fifthcategory fine or either one of these penalties.

Any person who intentionally uses such a forged or falsified document as if it were genuine and unfalsified, shall, if any damage could arise from such use, be liable to the same penalty.”


CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (NO. 2)

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1938 and lives in Benevento.

On 5 May 1987 Mr F. asked the Benevento District Court to order the applicant to pay him 73,934,495 Italian lire (38,183.98 euros (EUR)) for professional services. On 11 May 1987 the President of the Benevento District Court granted the application. The order was served on the applicant on 20 May 1987.

On 8 June 1987 the applicant challenged the order in the Benevento District Court. Preparation of the case for trial began on 24 September 1987. Of the twenty-nine hearings listed between 26 November 1987 and 16 October 1998 seven were adjourned by the court of its own motion, ten were devoted to organising expert evidence and supplementary findings and two were adjourned at the parties' request.

On 16 April 1999 the case was referred to the sezioni stralcio. Of the four hearings listed between 22 September 1999 and 8 February 2002 one was adjourned because the parties had not appeared and one was adjourned by the court of its own motion.

On 10 January 2002 the applicant lodged an appeal with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. The applicant asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed, inter alia, EUR 14,460.94 in pecuniary and non-pecuniary damages.

In a decision of 21 June 2002, the text of which was deposited with the registry on 2 October 2002, the Court of Appeal found that a reasonable time had been exceeded. It dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof, awarded him EUR 2,000 on an equitable basis in compensation for non-pecuniary damage, EUR 700 for costs and expenses incurred in the proceedings before the European Court of Human Rights and EUR 900 for the costs and expenses incurred in the Pinto proceedings.

That decision was served on the authorities on 23 January 2003 and became binding on 24 March 2003. The applicant served the authorities with notice to comply on 15 October 2003. On 29 October 2003 the applicant lodged an application for seizure with the Rome judge responsible for enforcement proceedings and a hearing was to be held on 28 March 2004.

In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application.

The applicant did not indicate that he had appealed to the Court of Cassation.


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant, Mr Nikolay Borisovich Berezovskiy, is a Russian national who was born in 1951 and lives in Tyumen. The respondent Government are represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

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

On 14 November 2001 the Frunzenskiy District Court of Vladivostok upheld the applicant’s action against the Military Commissariat of the Primorye Region (the Commissariat) and awarded him 6,137 Russian roubles (RUB) in compensation for damage and court expenses. The District Court also held that the Commissariat should sign a contract with a commercial provider of communication services undertaking the obligation to pay 50% of monthly costs for phone services provided to the applicant. The judgment was upheld on appeal and became final on 17 December 2001.

In August 2002 the applicant complained to the Frunzenskiy District Court about the Commissariat’s failure to enforce the judgment.

On 26 August 2002 the Frunzenskiy District Court found that the Commissariat’s inactivity was unlawful. The judgment was not appealed against.

On 16 September 2002 enforcement proceedings were closed as the Commissariat had paid RUB 6,137 to the applicant. However, a week later the proceedings were re-opened because the payment only constituted a partial enforcement of the judgment and because the Commissariat had not yet signed a contract with the communication services provider.

According to the Government, on 18 September 2002 the Commissariat paid to the applicant RUB 611 as a 50 % compensation of monthly costs for phone services provided to the applicant.

On 1 November 2002 the Commissariat signed the contract with the communication services provider and thus fully enforced the judgment of 14 November 2001 as upheld on 17 December 2001.


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

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

The applicant was born in 1928 and lives in Irkutsk.

On 8 December 1993 the applicant’s son, Vladimir Shumkov, was arrested on suspicion of murder and placed in a temporary remand centre. On 10 December 1993 he was transferred to a remand prison.

On 9 March 1995 Mr Shumkov was convicted of murder and perjury and sentenced to nine years and six months’ imprisonment. The sentence was due to expire on 7 June 2003.

On 15 July 1995 Mr Shumkov was transferred from the remand prison to correctional facility ITK-19 in Irkutsk to serve his sentence.

On 14 January 1999 he was transferred to correctional facility IK-6 in Irkutsk so as to prevent a conflict with other detainees.

On 6 February 1999 Mr Shumkov requested to be transferred to a different correctional facility since he was in conflict with other detainees and had allegedly been threatened by them.

On 13 July 1999 Mr Shumkov was transferred from correctional facility IK-6 to correctional facility IK-15 in Angarsk, again to prevent a conflict with other detainees.

On 10 April 2001 he was transferred to correctional facility IK-20 in Ust-Kuta, once again to prevent a conflict with other detainees.

In 1995 Mr Shumkov was diagnosed with epilepsy. Later the diagnosis was changed to psychopathic personality disorder. Between 1995 and 2001 he regularly underwent medical examinations and in-patient treatment in prison hospitals:

- on 2 August 1995 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk and was diagnosed with psychopathic personality disorder and epilepsy;

- on 26 August 1995 he was transferred to prison hospital no. 2 in Angarsk with a diagnosis of epilepsy; he was discharged on 13 September 1995 following an improvement in his condition;

- on 23 July 1996 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk and was diagnosed with psychopathic personality disorder, with explosive-type accentuation; he was discharged on 23 August 1996 following an improvement in his condition;

- on 20 March 1997 he was again placed in prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive-hysteroid type, and demonstratively blackmailing behaviour with simulation of psychic equivalences and paraxial disorders; he was discharged on 14 May 1997 following an improvement in his condition;

- on 24 February 1998 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive-hysteroid type; he was discharged on 12 March 1998 following an improvement in his condition;

- on 7 July 1998 he was admitted to prison hospital no. 2 in Angarsk with a diagnosis of psychopathy of explosive-hysteroid type with simulation of paraxial disorders; he was discharged on 18 August 1998 following an improvement in his condition;

- on 1 April 1999 Mr Shumkov was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of hystero-excitable type and neurocirculatory dystonia; he was discharged on 14 April 1999 following an improvement in his condition;

- on 9 March 2000 Mr Shumkov was admitted to prison hospital no. 2 in Angarsk with a diagnosis of psychopathy of explosive-hysteroid type with simulation of paraxial disorders; he was discharged on 30 March 2000 following an improvement in his condition;

- on 26 April 2000 he was admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive type and a duodenal ulcer; he was discharged on 19 June 2000 following an improvement in his condition;

- on 28 February 2001 Mr Shumkov was again admitted to prison hospital no. 1 in Irkutsk with a diagnosis of a duodenal ulcer and hypertension; he was discharged on 30 March 2001 following his recovery;

- on 23 May 2001 Mr Shumkov was once again admitted to prison hospital no. 1 in Irkutsk with a diagnosis of psychopathy of explosive type; he was discharged on 6 June 2001 following an improvement in his condition.

On 17 June 2001 Mr Shumkov was placed in a disciplinary cell, where on 1 August 2001 he slashed his left wrist. After medical aid had been administered to him, he was ordered to return to the cell. When Mr Shumkov refused to comply, officers L. and S. used rubber truncheons and physical force to return him to his cell.

On 4 August 2001 at 2 a.m. Mr Shumkov knocked at the door of his cell to attract the warder’s attention, and when the warder Yu. came over Mr Shumkov said that he needed pills for blood pressure. Warder Yu. reported accordingly to Major P., an officer on duty, who promptly arrived at the disciplinary cell and, having opened the door, found that Mr Shumkov had slashed veins in his elbows. Mr Shumkov said that he needed a bandage but refused to accept medical assistance from the warders and also said that he would not let anybody into the cell except for the prison doctor. At 2.15 a.m. Major P. sent officer D. to fetch the prison doctor, G. At around 2.40 a.m. Dr G. arrived, dressed the wounds and administered injections of cardiamine and caffeine. Mr Shumkov was then placed on a stretcher and transported to the medical unit; however, he was dead upon arrival at the unit as a result of heavy blood loss. The time of death was entered in the register as 2.40 a.m.

On 6 August 2001 a post-mortem report was drawn up. According to the report, the cause of Mr Shumkov’s death was heavy blood loss as a result of injuries to the large blood vessels in the antecubital fossa and forearms.

On 10 August 2001 the prison governor, K., decided not to open a criminal investigation into the death of Mr Shumkov for lack of corpus delicti.

On 17 August 2001 the Kazachinsko-Lenskiy District Prosecutor’s Office quashed that decision and referred the case back for additional inquiries. He stated, in particular, that in the course of the inquiries conducted it had not been established whether the officers on duty had tried to provide Mr Shumkov with medical aid and that neither the officers on duty nor the detainees held in adjacent cells had been questioned.

On 20 August 2001 the prison doctor G. provided an explanation concerning the events of 4 August 2001 to the Kazachinsko-Lenskiy District Prosecutor’s Office. He submitted:

“At 2.30 a.m. on 4 August 2001 a service car arrived to collect me from my home, and I was told that I had to go urgently to the [correctional facility] since a detainee [had collapsed] in a disciplinary cell. I immediately got into the car and at 2.40 a.m. we arrived at the [correctional facility]. Having entered the disciplinary wing, I asked to open the cell where [Mr] Shumkov was being held. [When] the warder opened the door, I saw that [Mr Shumkov] was lying motionless on the floor and blood was splashed around the whole cell. Having examined [Mr Shumkov’s] elbow joints, I found that a vein and an artery were cut open on the left elbow joint and similar injuries had been caused to the right elbow joint. I immediately dressed the wounds and administered injections of cardiamine, caffeine..., glucose and gluconate and performed artificial ventilation. Since the treatment had no effect, [Mr Shumkov] was transported to the medical unit and fifteen minutes after the beginning of the treatment I pronounced him dead as a result of heavy blood loss. Before my arrival at the disciplinary cell the warders did not provide [Mr] Shumkov with medical aid since he requested to be seen by a doctor and refused to accept medical aid until the [doctor’s] arrival. On 1 August 2001 [Mr] Shumkov had committed an act of self-mutilation, having slashed minor blood vessels on his left arm... An antiseptic dressing was applied. If [on 4 August 2001] I had arrived twenty or thirty minutes earlier, it would still have been impossible ... to save [Mr Shumkov’s] life since he had arteries and veins slashed in both arms.”

On 21 August 2001 the prison governor K. again refused to open a criminal investigation as no crime had been committed. He stated that on 4 August 2001 the prisoner had asked warders to call for a doctor because he had high blood pressure. The warders had discovered that the prisoner had cut veins in both elbows. Mr Shumkov had then been placed in the medical unit, where he had died as a result of heavy blood loss.

On 24 August 2001 the Kazachinsko-Lenskiy District Prosecutor’s Office refused to open a criminal investigation into the death of Mr Shumkov for lack of corpus delicti.

On 4 June 2002 the Office of the Prosecutor General set aside the decision of 24 August 2001 and opened a criminal investigation. The prosecutor noted that the district prosecutor’s office had failed to investigate the grounds for Mr Shumkov’s confinement in a disciplinary cell, the circumstances leading to his suicide and his mental state, in particular taking into account the medical records concerning his treatment from 1996 to 2001. Nor had they identified the object with which Mr Shumkov had slashed the veins in his elbows.

The case was forwarded to the Irkutsk Regional Prosecutor’s Office. The applicant was informed of that decision by letters of 7 and 25 June 2002.

On 8 July 2002 another post-mortem report was drawn up on the basis of Mr Shumkov’s medical file. It confirmed the findings of the postmortem report of 6 August 2001.

On 15 July 2002 the prison doctor G. was questioned. He stated that he had known Mr Shumkov since June 2001, when the latter had complained of headaches and high blood pressure. At around 2.40 a.m. on 4 August 2001, following a call from the officer on duty, he had arrived at the disciplinary cell, where he had found that Mr Shumkov had slashed his veins. Dr G. had dressed the wounds and administered an injection of caffeine; however, by that time Mr Shumkov was already in a semiconscious state. Mr Shumkov had been then transported to the medical unit, where, according to doctor G.’s statement, he had died at 2.40 a.m.

On the same date the Ust-Kuta District Prosecutor’s Office refused to institute criminal proceedings against officers L. and S. concerning the events of 1 August 2001, and against warder Yu. and Major P. concerning the events of 4 August 2001. The decision stated, inter alia, that after Mr Shumkov had committed an act of self-mutilation on 1 August 2001, his cell had been searched on several occasions and no forbidden items had been found. On 4 August 2001 warder Yu. and Major P. had immediately provided Mr Shumkov with first aid.

On an unspecified date the applicant complained about the length of the criminal investigation. On 30 December 2002 the Ust-Kuta District Prosecutor’s Office replied to her that it had questioned all the witnesses and had examined medical evidence and that an expert report on Mr Shumkov’s mental state at the relevant time had been commissioned.

On 27 January 2003 the Ust-Kuta District Prosecutor’s Office discontinued the criminal proceedings against the prison governor K. and officer Y., the head of the operating unit, for lack of corpus delicti. It appears that on an unspecified date that decision was quashed.

On 31 January 2003 a commission of four psychiatrists and one psychologist drew up a forensic psychiatric report in respect of Mr Shumkov. The commission concluded as follows:

“[The commission’s] conclusion:

[Mr] Shumkov suffered from a chronic psychiatric disorder in the form of psychopathy of mixed type. [This diagnosis] is confirmed by the anamnesis, medical documents and the criminal case file: [Mr Shumkov] had such character traits as difficulty in communication, quarrelsomeness, hot temper, irritability, aggressiveness, affective instability, tendency towards hysterical and demonstrative reactions with self-mutilation in subjectively difficult situations, tendency towards simulative behaviour (his examination and lengthy monitoring in the course of repeated placements for psychiatric and neurological in-patient treatment did not confirm the epileptic nature of the ‘fits’) ... However, the above-mentioned peculiarities of [Mr Shumkov’s] psychic state were not accompanied by a broad decrease in intellect or disturbances of thought, delirium, hallucinations or disturbances of critical and prognostic functions, since as a whole he could control his actions (his conduct changed depending on the place and environment, he took into account the social status and rank of the interlocutor), realise the meaning of his actions and direct them. In the period preceding [the act of self-mutilation committed by Mr Shumkov] ... he did not display signs of a temporary mental disorder or dementia, he did not have delirium or hallucinations, and he could realise the meaning of his actions and direct them.

The psychologist’s conclusion:

Psychological analysis of the contents of the criminal case file confirms that [Mr] Shumkov had such individual psychological peculiarities as egocentrism, emotionally volitional instability, hot temper, increased irritability, malignance, aggressiveness, difficulties in interpersonal contact, tendency towards conflict in close contact, tendency to create conflict situations, [tendency towards] asocial acts, and impulsiveness. In subjectively difficult situations [he] displayed affective outbursts, demonstrative behaviour, a tendency towards impulsive behavioural reactions, simulative behaviour and suicide attempts... The analysis of the contents of the criminal case file confirms the lack of extreme conditions which would have prompted the suicide, and of conditions that would have been conducive to the accumulation of negative emotional experiences and ... neuropsychological tension. [Mr Shumkov’s] individual psychological peculiarities were conducive to his committing suicide.”

On 28 February 2003 Ust-Kuta District Prosecutor’s Office again discontinued the criminal proceedings against the prison governor K. and officer Y. on the same ground as before.

On 31 March 2003 the Deputy Prosecutor of the Irkutsk Region quashed the decision of 28 February 2003 as ill-founded and premature. He stated, in particular, that the investigating authorities had failed to clarify all the circumstances preceding Mr Shumkov’s death, had not fully complied with the instructions of the Office of the Prosecutor General, had not made a legal assessment of the correctional facilities’ officers’ actions as regards the search in the disciplinary cell, and of the prison doctor G.’s actions as regards the untimely medical aid provided on 4 August 2001.

On 28 May 2003 the Ust-Kuta District Prosecutor’s Office discontinued the criminal proceedings on the following grounds.

According to the decision, Mr Shumkov was irritable, aggressive, had an explosive temper and had constant conflicts with other detainees and warders. He often complained of poor health and headaches. During the period of serving his sentence, that is, from December 1993 to August 2001, Mr Shumkov was on eleven occasions admitted to hospitals within the penal system. In 1995 he was diagnosed with epilepsy; however, the diagnosis was not confirmed and in 1998 it was changed to psychopathy. From 23 May to 9 June 2001 Mr Shumkov underwent treatment for his condition in Hospital No. 1 in the Irkutsk Region. For swearing and threatening physical violence he was discharged from the hospital on 9 June 2001 and transferred back to correctional facility IK-20. Between 10 April and 1 August 2001 Mr Shumkov was subjected to disciplinary measures on six occasions.

On 17 June 2001 Mr Shumkov was placed in a disciplinary cell for a breach of discipline. On 1 August 2001 he cut his veins. After medical aid had been administered to him, he refused to return to his cell, insulted and threatened officers L. and S. and grabbed L.’s uniform. So as to prevent his unlawful threats, L. and S., using physical force and rubber truncheons, placed him in the cell. Thereafter Mr Shumkov was examined by a member of staff of the medical unit, who noted bruises on his body and extremities. According to the results of the investigation, officers L. and S. lawfully used rubber truncheons and physical force against Mr Shumkov. On the same date the prison governor ordered Mr Shumkov’s placement in a disciplinary cell for the act of self-mutilation.

At around 2.10 a.m. on 4 August 2001 Mr Shumkov, while being held in disciplinary cell no. 20, cut his veins. He refused medical aid from the officers on duty and requested to be seen by a doctor. At around 2.40 a.m. the prison doctor G. provided Mr Shumkov with medical aid, having dressed the wounds and administered injections, following which Mr Shumkov was transported to the medical unit, where he died at 2.45 a.m. as a result of heavy blood loss.

The prison governor K. submitted that on 1 August 2001 he had ordered Mr Shumkov’s placement in a disciplinary cell for having committed an act of self-mutilation.

A witness, S-v, stated that on 4 August 2001 he had been held in an adjacent disciplinary cell when he had heard Mr Shumkov shouting and complaining of high blood pressure. Then Mr Shumkov had cut his veins. S-v did not know why he had done so.

Major P. stated that on 4 August 2001 he and warder Yu. had been among the officers on duty in the disciplinary wing. At around 2.10 a.m. he had heard screaming from cell no. 20, where Mr Shumkov was being held. At around 2.15 a.m. he and warder Yu. had entered the cell and had seen that Mr Shumkov had cut his veins. They had tried to provide him with medical aid so as to stop the bleeding, but he had firmly refused to be aided and to leave the cell and had stated that he needed a doctor. Major P. had then called for a doctor, who had arrived at the disciplinary wing at 2.40 a.m. Dr G. had dressed the wounds and had administered injections, following which Mr Shumkov had immediately been transported to the medical unit. However, because of the blood loss he had died there at around 2.45 a.m. In the course of additional questioning Major P. submitted that late in the evening of 3 August 2001 he and warders D. and Yu. had conducted an inspection of the disciplinary wing and had not found any forbidden objects.

Warder Yu. made a similar statement and added that after Mr Shumkov had been pronounced dead, officer Y., the head of the operating unit, had arrived at the disciplinary wing and conducted an inspection of cell no. 20.

Dr G. submitted that on 4 August 2001 he had been the prison doctor on standby duty. At around 2.40 a.m., after a call from an officer on duty, he had arrived at the disciplinary wing, where in cell no. 20 he had dressed the wounds and administered an injection of caffeine to Mr Shumkov, who had cut his veins. At the time Mr Shumkov had been in a semi-conscious state. Then Mr Shumkov had been transported on a stretcher to the medical unit, where he had died. Dr G. had pronounced him dead at 2.45 a.m.

The post-mortem report stated that the death of Mr Shumkov had occurred because of heavy blood loss as a result of injuries caused by the slashing of the large vessels in the elbows and forearms. It also noted that the prisoner had had bruises on his body and legs.

According to a psychiatric and psychological expert report, Mr Shumkov suffered from psychopathic personality disorder, was in constant conflict with other persons, and tended towards hysterical behaviour, self-mutilation, suicide attempts and simulation of epileptic fits. However, he was able to assess and control his conduct and never showed symptoms of imbecility. The experts did not establish the existence of any circumstances which could have prompted Mr Shumkov to commit suicide.

In the course of the investigation no proof of prison governor K.’s and officer Y.’s having committed such offences as abuse of official powers and incitement to suicide was found.

In the course of additional inquiries, it was established that Mr Shumkov had cut his veins with a piece of a blade from a disposable safety razor which he had had with him in the disciplinary cell as it was allowed by the internal regulations. When warder D. had asked Mr Shumkov what he had done with the piece of blade, he had replied that he had placed it in the lavatory pan.

The additional check also established that duty schedules were fixed for medical staff for holidays and weekends. At night a member of the medical staff remained on duty at his home. The time required for a member of the medical staff to arrive at the correctional facility in reply to an urgent call depended on the distance between his home and the facility. Dr G., who had been the prison doctor on duty on 4 August 2001, had arrived at the facility within twenty minutes from the departure of the operating unit to fetch him. This was also confirmed by Dr G. in the course of additional questioning and by the head of the medical unit, K-v.

Warder D. stated that during the night of 3 to 4 August 2001 he had been the assistant officer on duty. At around 10 p.m. on 3 August 2001 he, Major P. and warder Yu. had conducted an inspection of the disciplinary wing and had found no forbidden objects. At around 2 a.m. on 4 August 2001 or a little later, following a call from warder Yu., he had arrived at disciplinary cell no. 20 and had seen that Mr Shumkov had cut his veins. When he had asked him how he had cut his veins, Mr Shumkov had explained that he had used a piece of blade from a disposable safety razor which he had thrown into the lavatory pan. Mr Shumkov had refused to leave the cell to be provided with first aid and requested to be seen by a doctor. Warder D. then had gone to fetch Dr G. and had returned with him twenty minutes later. He did not know what medical aid Dr G. had provided since he had left to inspect the facility. Having reached the medical unit, he had learnt from Dr G. that Mr Shumkov had died of blood loss.

Having regard also to (i) Annex 1 to the Internal Regulations of Correctional Institutions, adopted by order no. 224 of the Ministry of the Interior of 30 July 2001, which did not forbid the keeping of a disposable safety razor in a disciplinary cell, and (ii) the Instruction on Supervision of Inmates held in Correctional Facilities, adopted by order no. 83 of the Ministry of Justice of 7 March 2000, which provided that constant supervision of inmates held in disciplinary cells must be effected through the inspection hole in the doors of the cells, and that officers on duty must call a doctor for inmates requiring medical assistance, the Ust-Kuta District Prosecutor’s Office concluded that the prison governor K., the head of the operating unit Y., Major P., warders D. and Yu. and the prison doctor G. had not committed the alleged offences of incitement to suicide, abuse of official powers and neglect of duty or failure to assist in a dangerous situation, and discontinued the criminal proceedings.

On 9 September 2004 the Office of the Prosecutor General dismissed a complaint by the applicant about the discontinuation of the criminal proceedings, finding that decision to have been lawful and well-founded.

On an unspecified date the applicant challenged the decision of 28 May 2003 before a court. She also complained that her son’s beating with rubber truncheons by warders on 1 August 2001 had not been lawful.

On 29 October 2004 the Ust-Kuta District Court of the Irkutsk Region dismissed the applicant’s complaint. The applicant was not present at the hearing.

On 14 February 2005 the Irkutsk Regional Court quashed that decision and remitted the case for a fresh examination on the ground that the applicant had not been duly notified of the hearing of 29 October 2004.

On 5 April 2005 the Ust-Kuta District Court held that the prosecutor’s decision was lawful and dismissed the applicant’s complaints.

On 6 September 2005 the Irkutsk Regional Court upheld the decision on appeal. The applicant’s subsequent application for supervisory review of that decision was refused by the Irkutsk Regional Court on 18 January 2006.

On 29 July 2002 Dr P., a neuropathologist at prison hospital no. 2, was questioned. He submitted that in March 2000 Mr Shumkov had been admitted to the hospital, having been diagnosed with epilepsy. However, the diagnosis had not been confirmed and Mr Shumkov had been diagnosed with a psychopathic disorder. During his stay at the hospital he had displayed unbalanced behaviour and mood swings, and had been irritable and emotionally unstable. Mr Shumkov had been provided with a complete course of treatment. His parents had never been asked to provide any medicines for him since all the required medicines had been available at the hospital.

Having examined Mr Shumkov’s medical file, the neurologist G. stated that in his childhood he had suffered a craniocerebral trauma. Since 1988 he had been suffering from frequent fits that had mostly occurred at night. He had been diagnosed with epilepsy and had undergone in-patient treatment in 1992. Later he had been treated in the psychiatric ward of prison hospital no. 1. There he had repeatedly feigned polymorphous fits and had been placed under constant monitoring, which had revealed no momentary lapses of reason or convulsive contractions, although irritability, hot temper and rudeness had remained. Accordingly, the diagnosis of epilepsy had been changed to one of psychopathy. During the term of Mr Shumkov’s detention, in-patient and outpatient treatment and supervision had been fully available to him.

The head of a psychiatric ward, Sh., having studied Mr Shumkov’s medical file, concluded that while in detention he had been fully provided with the requisite medical assistance for his mental and somatic state. The diagnosis of epilepsy had been correctly discarded and had not subsequently been confirmed.

On 30 April 2009 L., the head of the medical unit of correctional facility IK-20, issued a certificate concerning the circumstances of Mr Shumkov’s death. The certificate stated:

“At around 2 a.m. on 4 August 2001 ... [Mr Shumkov] knocked at the door of disciplinary cell no. 2, told [warder Yu.] that he had high blood pressure and asked him to call for a doctor on duty.

[Warder Yu.] reported to [Major P.], [who] immediately sent [warder D.] in a car to fetch [prison doctor G.], who lived near the correctional facility and was required to go to the facility in the event of an emergency. At the same time [Mr Shumkov] was placed under constant visual supervision through the inspection hole in the door of the cell.

At 2.15 a.m. [the warders] opened cell no. 20 following changes in [Mr Shumkov’s] behaviour and discovered that he had committed an act of self-mutilation, having cut blood vessels in both arms.

[Mr Shumkov] refused to leave the cell to receive medical assistance and stated that he would wait for the doctor in the cell. [The warders] brought bandages to the cell in order to dress the wounds. [Mr Shumkov] took the bandages but refused [the warders’] medical assistance.

At 2.30 a.m. [Dr G.] arrived and immediately provided [Mr Shumkov] with medical assistance in the cell. [He] dressed the wounds so as to stop the bleeding, administered injections to increase blood pressure and stimulate cardiac activity ..., and performed artificial lung ventilation and indirect heart massage, following which [Mr Shumkov] was taken to the medical unit ... where, despite the efforts to resuscitate him, at 2.40 a.m. he was pronounced dead as a result of heavy blood loss caused by the injuries to the large blood vessels.”

According to a certificate of 21 April 2009 issued by the prison authorities, during Mr Shumkov’s detention in correctional facility IK-20 from 10 April to 23 May 2001 and from 9 June to 4 August 2001 he was held in conditions which complied with the relevant regulations. There was no infringement of Mr Shumkov’s right to life by any officers of the correctional facility.

Another certificate issued on the same date stated, inter alia, that in the course of serving his sentence Mr Shumkov had breached prison discipline thirty-five times, as a result of which he had on six occasions been placed in the disciplinary wing and twenty-seven times in solitary confinement in a disciplinary cell. In 2000 he was recognised as a persistent offender and placed in stricter conditions of detention. All these measures were applied lawfully. Mr Shumkov was hot-tempered, tended to create conflicts, behaved defiantly and did not react to admonitions.

In an undated certificate prison officer A. stated that throughout the term of his imprisonment Mr Shumkov had physically resisted prison officers, provoked conflicts with other inmates, behaved aggressively and breached disciplinary regulations.

In two undated certificates prison officers U. and E. stated that in 1999 they had served in correctional facility IK-6. They submitted that Mr Shumkov had been mentally unstable and had repeatedly created conflicts with other detainees, which was the reason for his subsequent transfer to a different correctional facility. A number of times he had attempted to commit acts of self-mutilation by cutting his forearms. He had also regularly been admitted for treatment in prison hospital no. 1.

In a certificate of 16 April 2009 prison officer B. stated that during the term of his imprisonment Mr Shumkov had on a number of occasions been subjected to disciplinary sanctions for disobedience, insults and conflicts with other inmates. He had often been aggressive and violent. Such behaviour had been caused not only by his psychological particularities but by a manifest unwillingness to follow the prison rules.

In a report of 20 April 2009 prison officer P-na stated that from 1996 to 2000 she had held a post as inspector of the living quarters. She remembered Mr Shumkov as a frequent offender who had behaved defiantly towards other detainees, which had often caused conflicts.

On 2 August 2001 inspector K. of correctional facility IK-20 drew up an internal inspection report concerning the incident of 1 August 2001. According to the report, the use of rubber truncheons in respect of Mr Shumkov was lawful and proportionate.

On 15 August 2002 the Ust-Kuta Prosecutor’s Office refused to institute criminal proceedings against officers L. and S. in respect of the events of 1 August 2001. The decisions stated, inter alia:

“On 1 August 2001 [the detainee Mr] Shumkov committed an act of self-mutilation having slashed his veins. However, he was provided with medical aid in due time. After [officers L. and S.] asked [Mr] Shumkov to return to his cell, the latter refused, grabbed [L.’s] uniform, swore at him and threatened him with physical violence. So as to prevent the unlawful threats of [Mr] Shumkov, [L. and S.], using physical force and rubber truncheons, placed him in the cell. [Thereafter] [Mr] Shumkov was examined by a member of staff of the medical unit, who noted bruises on his body and extremities.

Taking into account the foregoing, as well as the fact that [officers L. and S.] used [rubber truncheons] and physical force in respect of [Mr] Shumkov after the latter’s refusal to comply with their lawful orders, the institution of criminal proceedings against [L. and S.] should be refused for lack of corpus delicti.”

Article 20 of the Constitution of the Russian Federation protects the right to life.

The Health Care (General Principles) Act of 22 July 1993 provides that persons serving a sentence in prisons are entitled to medical assistance at the State’s expense and, as the case may be, at institutions run by the general public health service (section 29).

The Correctional Institutions Act of 21 July 1993 provides that correctional institutions are responsible for inmates’ security and healthcare (section 13).

Article 18 of the 1997 Code on the Execution of Sentences, as it read at the material time, provided that inmates suffering from a psychiatric disorder which did not attain the degree of legal insanity could be subjected to compulsory medical treatment subject to authorisation by a competent court. Such inmates included persons who posed a danger to others or themselves, in which case the prison authorities had to apply for a court order for their compulsory medical treatment.

Article 101 of the 1997 Code on the Execution of Sentences, as it read at the material time, provided that medical units and hospitals, including specialised psychiatric and tuberculosis hospitals, were available within the penal system to provide medical care for inmates (§ 2). Medical aid should be provided in accordance with the laws of the Russian Federation and statutory instruments of the Ministry of Justice and the Ministry of Healthcare (§§ 1 and 5).

According to the Internal Regulations of Correctional Institutions, adopted by order no. 330 of the Ministry of the Interior of 30 May 1997, in force in the relevant part until 7 September 2001, a correctional facility provided medical examinations, supervision and treatment of inmates using the means and facilities recommended by the Ministry of Healthcare. In instances where medical aid could not be provided in a medical institution within the penal system the inmate could be transferred to a medical institution within the ordinary healthcare system (section 19).

The Internal Regulations further provided that inmates placed in disciplinary cells or solitary confinement could not take foodstuffs and personal items to their cell, except for a towel, a piece of soap, toothpaste and a toothbrush (section 23). Annex 1 to the Internal Regulations listed items whose use was forbidden in a correctional facility, including knives and other sharp cutting or piercing objects.

Annex 1 to the Internal Regulations of Correctional Institutions, adopted by order no. 224 of the Ministry of the Interior of 30 July 2001, which from 7 September 2001 (the new Regulations) replaced the Internal Regulations adopted on 30 May 1997, listed items whose use was forbidden in a correctional facility, including knives, straight razors and blades for safety razors. The Internal Regulations were published in the Bulletin of Statutory Acts of the Federal Bodies of Executive Power (no. 35 of 27 August 2001).

Under the new Regulations it was permitted to inmates placed in disciplinary cells or solitary confinement to take with them to their cell a towel, a piece of soap, toothpaste and a toothbrush, toilet paper, hygienic items (for women), newspapers and magazines they were subscribed to, religious literature and objects of cult (section 23).

The Instruction on Supervision of Inmates held in Correctional Facilities, adopted by order no. 83 of the Ministry of Justice of 7 March 2000, as in force at the relevant time, provided that officers responsible for supervision of inmates held in disciplinary cells monitored the inmates’ presence and conduct by means of constant surveillance through inspection holes in the doors of the cells. Officers on duty had to call for a doctor for inmates requiring medical aid (section 5.1.3). In the event of sudden illness, self-mutilation or a suicide attempt on the part of an inmate, a junior officer immediately had to alert the officer on duty and, upon the latter’s arrival, and having ensured that it was not a case of simulation, would open the cell and provide the inmate with the requisite aid. The officer on duty would then decide what further action to take (section 5.1.7).

The 1960 Code of Criminal Procedure of the RSFSR, which was in force until 1 July 2002, required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed. That authority was under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction. The decision whether or not to institute criminal proceedings had to be taken within three days of the first report on the relevant facts (Articles 3 and 108-109).

No criminal proceedings could be brought in the absence of a corpus delicti (Article 5). Where an investigating body refused to open or terminated a criminal investigation, a reasoned decision was to be provided. Such decisions could be appealed against to a higher-ranking prosecutor or to a court (Articles 113 and 209).

On 1 July 2002 the 1960 Code of Criminal Procedure of the RSFSR was replaced by the Code of Criminal Procedure of the Russian Federation.

Article 125 of the new Code lays down a judicial procedure for the consideration of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice, may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions.


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

The applicant was born in 1963 and lives in Zvolen. He was a member of the Police Corps (Policajný zbor) of the Slovak Republic.

On 10 March 1999 the applicant was charged (obvinený) with carrying out business activities without authorisation (Article 118 § 1 and 2 (a) of the Criminal Code (CC)), extortion (Article 235 § 1 of CC) and rape (Article 241 § 1 of CC). The charges were based on the suspicion that the applicant who was disqualified from carrying out business activities by law on account of his status as a police officer had arranged for a third person, Ms P., to run a restaurant on his behalf. He was further suspected of having threatened P. with violence in order to make her give him an amount of money and of having forced at gunpoint a waitress, Ms. M., to have intercourse with him. The blackmail charge was later extended as the applicant was also suspected of having made violent threats against M. in order to force her to be his girlfriend.

The applicant was detained, dismissed from the police and tried on the above charges. The details are set out below.

On 12 April 1999 the Minister of the Interior issued an order (personálny rozkaz) dismissing the applicant from service in the police. The evidence available showed that the applicant had committed the acts of which he was charged. Such conduct grossly violated the service oath and, accordingly, was incompatible with service in the police. The applicant’s administrative appeal (rozklad) was dismissed on 14 June 1999.

The applicant’s subsequent numerous requests that the Ministry of the Interior review his dismissal in a special procedure outside the framework of ordinary appellate proceedings (mimo odovlacieho konania) and that the proceedings be reopened failed.

On 29 May 2002 the applicant challenged his dismissal by way of an administrative-law action in the Supreme Court (Najvyšší súd). It was declared inadmissible on 1 August 2002 on the ground that it clearly had been filed outside the statutory two-month time-limit, counted from the final administrative decision in the case which was the decision of 14 June 1999.

On 3 September 2002 the applicant challenged the dismissal order of 12 April 1999 in the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. It was declared inadmissible on 24 September 2002 as being belated. Moreover, and in any event, the review of the dismissal order fell within the jurisdiction of the Supreme Court. The Constitutional Court’s review was merely subsidiary and did not apply to the dismissal order directly. As for the decision of the Supreme Court, it could not be reviewed either because the applicant’s constitutional complaint was not directed against it.

On 11 March 1999, at 2.40 p.m., the police detained the applicant on the above charges. He was assigned an ex officio lawyer.

On 12 March 1999 the applicant was brought before the judge of the Zvolen District Court (Okresný súd).

The parties disagree as to the exact time when this took place. The Government rely on the minutes of the applicant’s questioning which bear his signature and indicate that he had appeared before the judge at 2 p.m. The applicant now claims that he was presented to the judge at 3.50 p.m., which is after the 24-hour statutory time-limit.

The applicant pleaded not guilty. There is no indication that he complained about infringement of the above time-limit. The questioning was concluded at 4.47 p.m. with the District Court’s decision to remand the applicant in detention (see the subsequent paragraph).

On 12 March 1999 the District Court remanded the applicant under Article 67 § 1 (b) and (c) of the Code of Criminal Procedure (CCP) which allowed for detention of persons charged with criminal offences where there were reasonable grounds for believing that if released they would interfere with the course of justice or continue to engage in criminal activities. The court found it established that the applicant’s liberty had been restricted on the previous day at 2 p.m. There was a strong suspicion against him which was based on testimonies of P., M. and 7 witnesses. The applicant was suspected of having threatened and used violence against P. and M. over an extended period. Therefore it could be presumed that he would continue doing so with a view to hampering the proceedings. This presumption rendered his detention justified on the legal grounds referred to above.

The applicant’s appeal (sťažnosť) against the remand order was dismissed by the Banská Bystrica Regional Court (Krajský súd) on 13 April 1999.

In the period prior to 26 April 2000 the applicant filed numerous petitions for release. They were dismissed by the prosecution service, the District Court and the Regional Court on various grounds including that some of the petitions had been lodged earlier than 14 days from the final determination of the previous petition and, as they contained no new relevant information, they had to be dismissed under Article 72 § 2 of the CCP.

In all cases the authorities found that the suspicion against the applicant and the grounds for his detention, as established at the time of his remand, still persisted. In decisions of 19 October 1999 and 28 February 2000 the District Court moreover observed that covert messages from the applicant to his wife, P. and her family members had been intercepted, which showed that he had actually attempted to interfere with the course of justice and that he was likely to act violently. The existence of such messages was established by the prison administration and the prosecution service, which confirmed it in their respective letters of 15 and 26 July 1999.

On 3 September 1999 the District Court authorised extension of the applicant’s detention under Article 71 § 1 of the CCP until 11 December 1999.

On 31 March 2000, the District Court found the applicant guilty and sentenced him (see below). At the same time it decided that for the time being the applicant should be released from detention. The release order was however not yet enforceable as it had been challenged by the prosecution.

On 24 May 2000 the Regional Court allowed the prosecutor’s appeal against the release order and ruled that the applicant should remain in detention. With reference to the intercepted letters the Regional Court found that the applicant had attempted to influence witnesses and concluded that, if released, it was likely that he would exert pressure on the victims with a view to having their statements modified.

On 28 July 2000 the District Court dismissed the applicant’s petition for release. The applicant appealed to the Regional Court but on 7 August 2000 withdrew the appeal. The Regional Court acknowledged the withdrawal on 23 August 2000.

On 16 August 2000 the applicant petitioned for release again. He contested the charges and argued that there was no risk that he would continue to offend as envisaged by Article 67 § 1 (c) of the CCP.

In a letter of 7 September 2000 the District Court informed the applicant that under Article 72 § 2 of the CCP his petition of 16 August 2000 could not be dealt with because it had been lodged prior to the final determination of his previous petition and contained no new relevant information.

On 28 November 2000 the applicant lodged a fresh petition for release and the District Court ordered his release on 7 December 2000.

On 17 January 2001 the Regional Court upheld the release order of 7 December 2000 on the prosecutor’s appeal. It referred to the evidence taken in the course of the proceedings, the length of the applicant’s detention and the fact that his criminal record was clear. It concluded that the reasons for his detention had fallen away.

The applicant was released on the same day.

In the course of the proceedings the applicant unsuccessfully attempted to have criminal proceedings brought against the officials dealing with his case. He complained, inter alia, that no decision had been given to authorise the extension of his detention after 11 December 1999 (see paragraph 16 above).

On 12 March 1999 the District Court issued a search warrant for two flats and a cottage used by the applicant. The searches took place on 12 and 16 March 1999.

On 17 March 1999 the Zvolen District Prosecutor dismissed the applicant’s appeal against his charges. His appeal against the extended charge for extortion was dismissed later.

On 26 July 1999 the District Court assigned the applicant a new ex officio lawyer at the applicant’s request.

On 10 December 1999 the applicant was indicted to stand trial in the District Court on the above charges.

On 20 December 1999 the case was assigned to a different judge of the District Court, V.Š., because the previous judge knew the applicant and felt personally biased.

The District Court held hearings on 10, 13 and 31 March 2000 at which it heard the applicant, the victims and several witnesses.

Following the hearing of 31 March 2000, on the same day, the District Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. Both the applicant and the prosecution appealed.

On 21 June 2000 the Regional Court quashed the District Court’s judgment and remitted the case to the latter for the taking of further evidence and re-examination. The Regional Court held that it was necessary to rehear the case as in the course of the proceedings there had been a change in the District Court’s chamber dealing with it.

On 26 July 2000 the District Court assigned the applicant a new ex officio lawyer at the request of the previous lawyer who felt that the applicant had no confidence in him.

On 20 September 2000 the Regional Court exempted Judge V.Š. from dealing with the applicant’s case at her own request because she felt partial because of the applicant’s persistent use of invectives against her.

The case was assigned to a new judge, M.Š., who also requested his exclusion. He submitted that he knew the applicant and that he felt concerned by his invectives directed against the previous judge.

On 8 November 2000 the Regional Court ruled that M.Š. would not be excluded from dealing with the applicant’s case.

On 20 March 2001 M.Š. again requested his exclusion from the case as he felt biased after the applicant had filed an unsuccessful criminal complaint against him.

On 12 April 2001 the Regional Court found that M.Š. was not disqualified from dealing with the case as, being a professional judge, he had to be prepared to accept a certain level of criticism without losing his impartiality.

On 1 October 2001 the District Court ordered an expert examination of the applicant’s mental health. On 7 November 2001 the Regional Court quashed this order on the applicant’s appeal for reasons of formality.

Between 7 February and 29 November 2002 the District Court held 5 hearings and made three attempts at establishing the whereabouts of P. who was believed to be staying in Italy.

On 10 January 2003 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to four and a half years’ imprisonment and a fine. In reaching that conclusion the District Court took into account the testimonies of numerous witnesses, reports from several experts and complex documentary evidence. The applicant appealed.

On 4 June 2003 the Regional Court quashed the judgment of 10 January 2003 and found the applicant guilty of having run a business without authorisation and of extortion. It acquitted him of the remaining charges and sentenced him to 22-months’ imprisonment and a fine.

The Prosecutor General challenged the judgment of 4 June 2003 by means of a complaint in the interest of law (sťažnosť pre porušenie zákona) filed with the Supreme Court.

On 10 February 2004 the Supreme Court quashed the judgment of 4 June 2003 and ordered the Regional Court to re-examine the applicant’s appeal against the judgment of 10 January 2003.

The Regional Court called hearings for 16 June and 18 August 2004. They had to be adjourned as the applicant did not appear.

The Regional Court requested that the applicant be brought by the police and eventually issued a warrant for his arrest.

The applicant then appeared before the Regional Court of his own accord and the arrest warrant was quashed.

On 6 October 2004 the Regional Court held a hearing following which, on the same day, it upheld the District Court’s judgment of 10 January 2003 as regards the conviction and increased the penalty which had been imposed in the judgment of 4 June 2003 to two years’ imprisonment.

The Minister of Justice challenged the judgment of 6 October 2004 by means of a complaint in the interest of law. He contested mainly the imposed sentence considering that the Regional Court had failed to take due account of the seriousness of the offences and the context in which they had been committed.

On 1 June 2005 the Supreme Court quashed the judgment of 6 October 2004 finding that the sentence imposed was too lenient. The Regional Court was accordingly instructed to re-examine the applicant’s appeal against the judgment of 10 January 2003.

On 20 September 2005 the Regional Court held a hearing following which, on the same day, it increased the sentence imposed in the judgment of 10 January 2003 to 3 years’ imprisonment. No further appeal was available. The applicant then unsuccessfully sought to challenge his conviction in the Constitutional Court.

On 26 February 2003 the applicant lodged a complaint under Article 127 of the Constitution asserting violations of his constitutional rights in the criminal proceedings against him. He complained inter alia about the length of the proceedings, directing this part of his complaint exclusively against the District Court.

On 14 April 2004 the Constitutional Court declared the complaint about the length of the criminal proceedings before the District Court admissible and the remaining complaints inadmissible.

On 30 September 2004 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution).

The Constitutional Court found that the subjectmatter of the proceedings was not particularly complex and that no undue delays could be attributed to the applicant. In contrast, the District Court had been inactive without any justification between 12 April and 1 October 2001.

The Constitutional Court concluded that the finding of a violation of the applicant’s right was in itself sufficient just satisfaction for him. In view of all the circumstances including the fact that there had only been one relatively insignificant period of unjustified delay, the Constitutional Court considered that financial compensation for the applicant’s nonpecuniary damage would not be appropriate. It however awarded him reimbursement of his legal costs.

Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms.

Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties.

Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law.

Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.

Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law.

Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are reasonable grounds for believing that he or she would influence the witnesses or the co-accused or otherwise hamper the investigation (Article 67 § 1 (b)) or continue criminal activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)).

Article 71 § 1 provides inter alia that where detention in the pre-trial phase of proceedings exceeded six months and the release of the detainee would jeopardise the purpose of the proceedings, a single judge can extend the detention for a period of up to one year. A motion for such an extension shall be lodged by the public prosecution service. A further extension of detention in the pre-trial phase of the proceedings beyond the one-year limit can be authorised by a chamber of judges up to a maximum of two years.

Under Article 71 § 2 detention on remand in the pre-trial phase of the proceedings and in the proceedings before a court taken together cannot exceed two years. An extension by another year can be authorised by the Supreme Court.

Article 72 § 2 entitles the detainee to apply for release at any time. When the public prosecutor dismisses such an application in the pretrial phase of the proceedings, he or she shall submit it immediately to the court. The court shall rule on such an application without delay. If the application is dismissed, the accused may renew it fourteen days after the decision has become final unless he or she invokes different reasons.

Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics.

Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction.

Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.

In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary.

The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence).

Further details concerning protection of personal integrity under the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006).

Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides.

Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia).

The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two).

The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded.

Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)).

Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions.

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question.

The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).


Violation of Article 6 - Right to a fair trial

Christos Rozakis;Costas Pamballis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Pamballis;Sverre Erik Jebens

The applicants were born in 1964 and 1936 respectively and live in Paphos.

The applicants rented a souvenir shop together in Paphos. On 2 March 2001 they filed an application (K2/01) before the Rent Control Tribunal (”the RCT”) challenging the amount of rent they paid the respondents and seeking its reduction.

On 22 March 2001 the RCT ordered that the application be served abroad on the respondents in Athens.

On 11 April 2001 the respondents filed their defence.

Upon completion of the pleadings, the applicants, on 27 April 2001, requested the RCT to list the application for mention.

The application was listed for directions six times between 21 June 2001 and 20 December 2001. No court records are available for this period.

On 25 February 2002 the respondents filed an application for discovery and inspection of documents.

On 28 February 2002 the respondents requested that the RCT carry out a local survey. With the applicants’ agreement, this was carried out on the same day.

The case was listed for a directions hearing to be held on 7 March 2002 with a view to setting a hearing date after the parties’ lawyers had the opportunity to inform the court of their decision regarding the manner in which the court’s expert would testify.

On the above date the respondents requested leave to amend their valuation.

The application was set down to be heard on 25 April 2002 and the court directed that its expert would testify and be cross-examined on that day.

The hearing started on the above date. Following the expert’s testimony, the respondents requested that cross-examination take place on another date to allow their expert to assess the evidence given and prepare their cross-examination. The applicants’ lawyer objected.

The court granted the adjournment and set the case down for 23 May 2002 after discussing the suitability of that date for the lawyers. Costs were ordered against the respondents.

The hearing continued on the above date with the cross-examination of the RCT’s expert by the respondents’ lawyer. When this finished the hearing was adjourned to 13 June 2002 at the applicants’ request.

The hearing continued on 13 June 2002 with the cross-examination of the RCT’s expert by the applicants’ lawyer. At the end of the hearing the respondents requested the court to join the application with another three applications (K10/00, K12/00 and K13/00) as they all concerned the determination of the rental value of shops which were situated in the same complex. The parties agreed and the court issued an order joining the applications. As the lawyers considered there was not enough time for the testimony and cross-examination of the respondents’ expert the hearing was fixed for 19 September 2002, following the summer vacation.

On the above date the court accepted the parties’ request that the evidence of the expert be given at the same time for all the cases followed by separate cross-examination by each lawyer. After the examination-in-chief of the first witness, the examination-in-chief of the second witness was interrupted due to that witness’s ill health.

The hearing continued on 24 October 2002 and was then adjourned to 12 December 2002. It was further adjourned, however, on that date, as the respondents’ expert could not attend due to a health problem.

The hearing was then listed for 20 February 2003. It continued on that date and then on 22 April 2003. The hearing was initially due to continue the next day but was instead adjourned to 19 and 24 June 2003 in order to allow the lawyer in one of the applications to prepare his client’s defence.

On 12 June 2003, however, the court cancelled the first session as one of the trial judges would be abroad. It further issued an order separating the applications (see paragraph 18 above) and stated that separate decisions would be delivered.

On 24 June 2003 the parties’ lawyers addressed the court.

On 27 November 2003 the court rejected the evidence given by the respondents’ expert and, on the basis of the evidence of the expert it had appointed, ordered a reduction in the rent paid by the applicants. Costs were awarded in favour of the applicants.

On 7 January 2004 the respondents lodged an appeal before the Supreme Court.

By letter dated 9 January 2004 the Registrar of the RCT of Paphos informed the Chief Registrar of the Supreme Court that the records of the proceedings would be transcribed and sent to the Supreme Court by 31 March 2004.

By a letter dated 9 March 2004 the Supreme Court informed the appellants that their appeal had been entered in the register (appeal no. 11939).

By letter 12 May 2004 the Registrar of the RCT of Paphos sent the case file, the court records, the judgment and the list of exhibits to the Supreme Court.

The appeal was listed for a preliminary hearing on 22 October 2004. On that date directions were given for the submission of written outlines of submissions to be made at the appeal hearing.

These were filed on 6 December 2004.

On 14 January 2005 the applicants informed the court that they had appointed a new lawyer.

On 15 April 2005 the appeal was submitted to the Supreme Court but in the absence of an available date it was not set down for hearing.

On 23 August 2005 the Chief Registrar of the Supreme Court informed the parties that the appeal had been set down for hearing on 22 November 2005. Following an exchange on the matters raised between the court and the parties the hearing was adjourned at the parties’ request until 20 December 2005.

On the latter date the parties addressed the court and judgment was reserved. The applicants’ lawyer stated that he was in complete agreement with the first-instance judgment.

On 27 January 2006 the Supreme Court upheld the appeal and set aside the RCT’s decision. It ordered a retrial of the case. The Supreme Court found that the RCT had erred in its assessment of the evidence that had been put before it. In this connection, it noted that the RCT had failed to take into account the average rental rate of the shops in the area and relevant factors such as the age, condition and facilities of those shops when assessing the rental value of the shop in question. Secondly, it found substantial errors in the valuation made by the RCT’s expert which included the failure to make the necessary adjustments when comparing different properties and to determine the advantages and disadvantages of the properties compared. The court considered that the valuation given by the RCT’s expert had been ill-founded and unreliable and that therefore the RCT should not have relied on it. Similarly, the court found that the valuation of the respondents’ expert (the appellants at the appeal stage) had been unsound. In this connection, it noted that this valuation had defined the area in question very narrowly and as a result had not taken into account other nearby shops which should have been considered for comparison purposes. The Supreme Court therefore concluded that overall no evidence had been put forward which would enable the determination of a fair rent in respect of the applicants’ shop.

Finally, the Supreme Court ordered that the costs of both the first instance and appeal proceedings be paid by the applicants (the respondents at the appeal stage).

Following a request by the Registrar of the RCT of Limassol- Paphos, the Supreme Court, in a letter dated 16 March 2006, gave directions for the retrial of the application.

On 6 April 2006 the application was brought before a newly composed RCT and was listed for a directions hearing on 16 May 2006 in view of the possibility of a friendly settlement.

On the latter date the application was fixed for hearing on 21 September 2006. On that date the respondents requested that they be given time to consider the court’s proposals with regard to a settlement. With the applicants’ agreement the application was set down for hearing on 19 October 2006. On the latter date the parties informed the court that they accepted its proposals concerning determination of the rent. The applicants’ lawyer claimed his costs [for the retrial] and the respondents’ lawyer claimed the costs of the first trial and appeal.

On that date the court determined the rent as agreed and ordered that the respondents pay the retrial costs, as assessed by the Registrar and approved by the court, unless the parties reached a different agreement.

During the retrial proceedings, by letter dated 24 May 2006, the applicants’ lawyer requested the Attorney-General to consider whether it would be possible for the State to pay the costs of the proceedings in view of the fact that the errors for which the case was sent back for retrial had not been committed by the applicants.

By letter dated 31 May 2006 the Attorney-General replied that this was not possible since the proceedings in question concerned a trial between private parties and, further, that it was for the courts to take into account all relevant circumstances when determining the matter of costs.

Section 43 of the Courts of Justice Law 1960 (Law no. 14/1960, as amended) provides as follows:

“The costs of, and incident to, any civil proceedings, in any court, shall, unless otherwise provided by any law in force for the time being, or any subsidiary legislation, be in the discretion of the court and the court shall have full power to determine by whom and to what extent such costs shall be paid”.

Order 59 of the Civil Procedure Rules sets out the rules concerning costs. Rule 1 of this Order provides as follows:

“Subject to the provisions of any law or Rules, the costs of, and incident, to any proceeding shall be in the discretion of the Court or Judge, who may authorise an executor, administrator or trustee who has not unreasonably instituted, or carried on, or resisted any proceeding, to have his costs paid out of a particular estate or fund.”

Regulation 13 (a) of the Rent Control Rules of 1983 provides:

“The award of costs is a matter in the discretionary power of the court. The outcome of the case is not the sole factor for the award of costs but all the circumstances of the case must be taken into account.”

Section 5 of the Rent Control Law 23/1983 (as amended) provides that the procedure before the Rent Control Tribunal is a summary procedure not bound by the rules of evidence.