Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 5-4;Not necessary to examine Art. 13+5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

The applicant is an Ethiopian national born in 1970.

The applicant was convicted on two counts of manslaughter by the Groningen Regional Court (arrondissementsrechtbank) on 21 June 1990. He had broken into the homes of two elderly ladies whom he had strangled to death, both these incidents taking place within the space of three days.

The applicant was sentenced to five years’ imprisonment (with deduction of the period spent in detention on remand) and placement at the disposal of the government (terbeschikkingstelling) with committal to a psychiatric institution. Although the period of placement at such an institution does not usually begin until the date on which the person concerned is eligible for early release – which in the present case would have been 16 February 1993 – due to his disturbed mental state the authorities decided to commence the applicant’s treatment prior to this date (Article 13 of the Criminal Code – Wetboek van Strafrecht – and Article 120 of the Prisons Ordinance – Gevangenismaatregel – see paragraph 20 below). Accordingly, the applicant was placed at the disposal of the government in a psychiatric institution for a two-year period commencing 3 July 1991 (see paragraph 21 below).

According to Article 509o § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as “CCP”), a request for the extension of a placement order must be made by the public prosecutor not later than one month before the expiry of the previous period of placement (see paragraph 23 below). The last day for making such a request in the present case was therefore 3 June 1993. A letter to this effect was sent by the State Secretary of Justice to the public prosecutor on 11 May 1993, the latter having received on 4 May 1993 the recommendations of the psychiatric institution where the applicant was being treated regarding the prolongation of his period of placement (see paragraph 23 below).

On 17 May 1993 the public prosecutor prepared a request for a one-year extension of the applicant's placement. The applicant was informed of this fact by letter of the same day (see paragraph 23 below), which he received in person on 19 May 1993. The applicant was also informed that during the judicial examination of the request he could be represented by counsel. The request prepared by the public prosecutor, however, did not arrive at that time at the registry of the Regional Court of Groningen but was, apparently by mistake, placed in the archives of the court.

About three and a half months after receiving the letter of the public prosecutor, the applicant alerted the staff in the psychiatric institution to the fact that he had not received any further information regarding the extension of his placement. The request of the public prosecutor was found in the archives of the court on 7 September 1993, and was received at the court's registry on 8 September 1993. On 10 September 1993 the psychiatric institution submitted additional observations concerning its recommendation to extend the hospital order.

In the proceedings regarding the extension of his placement, the applicant asked the Regional Court to declare the public prosecutor's request inadmissible on the ground that both Article 509o § 1 of the CCP and Article 5 of the European Convention on Human Rights had been violated. The public prosecutor submitted an explanation in writing as to the reasons why the request had not been lodged in time arguing that the request should not be declared inadmissible.

The Regional Court examined the application on 15 September 1993. In its decision of 23 September 1993, the court rejected the applicant's objections and extended his placement at the government’s disposal for another year. Pursuant to Article 509v of the CCP (see paragraph 27 below) no appeal lay against this decision, as it concerned a first extension not exceeding one year.

In its decision the Regional Court stated as follows:

“3. It appears from the contents of the relevant documents that the request for an extension of the placement at the disposal of the government should have been submitted not later than 3 June 1993. According to the stamp indicating the receipt, the request was not received and registered at the registry of this Court until 8 September 1993.

The Code of Criminal Procedure does not indicate any consequences of a failure to observe the time-limit contained in Article 509o § 1. However, in view of the wording of the provision and its legal history, the Court is of the opinion that failure to observe the said time-limit should in principle result in the inadmissibility of the public prosecutor's application. This conclusion can be drawn from the fact that failure to respect this procedural provision is not in conformity with the proper administration of justice.

However, in some cases special circumstances might exist which would justify a departure from that principle. The Court considers that such special circumstances are present in this case.

The provision referred to has a specific procedural significance and aims at letting the judge examine periodically whether an extension of the judicial measure is necessary. Indirectly the provision also protects the interests of the person placed at the government's disposal since it ensures that this person will know in good time whether or not there will be a request for an extension. In the present case the interests of that person were not prejudiced since the request was notified to him in person on 19 May 1993. He has therefore been able to obtain legal assistance in time and he has not been left in any doubt as to the intentions of the public prosecutor for an unnecessarily protracted period.

It remains to be examined whether the failure to comply with the time-limit has been prejudicial to the fairness of the proceedings. In considering this question, the Court must have regard, inter alia, to the fact that the placement at the disposal of the government remains in force as long as there is no final decision on the request. Although there has been a failure to comply with the time-limit for requesting the extension, it does not follow that the deprivation of liberty is unlawful.

In substance, there has not been a failure to respect the time-limit within which the request must be made. The public prosecutor prepared a request for an extension in time and he communicated it two days later to the person placed at the government's disposal.

Because of circumstances, which have been further explained in the written memorial of the public prosecutor, it was not possible, however, for the Court to decide earlier on this request, which had been prepared in time. It is not possible to consider this a flagrant violation of the procedural provisions. The public prosecutor may only be reproached for the fact that the request did not arrive at the registry of this Court in time, which means that the request was only formally submitted too late.

Moreover an evaluation must be made of the various interests involved in the sense that the interest of the person placed at the government's disposal in having the violated legal provision respected must be weighed against the general interest which might be harmed by a decision which would lead to the termination of the placement at the disposal of the government.

The Court considers that, in view of the circumstances set out below, the latter interest must prevail.

The measure was originally imposed because of two acts of manslaughter. The above-mentioned opinions of the institution quite clearly refer to the necessity of prolonging this coercive measure. The risk of further criminal behaviour is considered still to be present to the same degree, since the person concerned can still not appreciate the vulnerability of his personality. The supplementary opinion regarding the extension repeats this conclusion and also mentions an incident in which violence took place between the person concerned and another person held in the institution. On this occasion he lost his senses for a short while and it was necessary to isolate him for some time in his room.”

The Regional Court has since extended the applicant’s placement twice.

Article 287 of the Criminal Code makes manslaughter a crime punishable by a term of imprisonment not exceeding fifteen years or a fine not exceeding one hundred thousand Netherlands guilders (NLG).

A person who has been found guilty of certain serious crimes and who, at the time of committing an offence, suffered from a mental deficiency or derangement may be placed at the government’s disposal if required in the interests of the safety of others or more generally in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall receive psychiatric treatment at the government’s expense (Article 37b).

A person sentenced to a term of imprisonment may, by order of the Minister of Justice, be made to serve his sentence in an institution for the treatment of persons placed at the disposal of the government if such a course is indicated by his or her impaired mental development or a mental disturbance (Article 13 § 1 of the Criminal Code and Article 120 of the Prisons Ordinance).

According to Article 38d of the Criminal Code a person shall be placed at the disposal of the government for an initial period of two years which may be extended, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons or such further extension is necessary for the protection of other persons (Article 38e).

The provisions relating to the extension of the placement at the disposal of the government are laid down in Articles 509o to 509x of the CCP.

Article 509o § 1 provides:

“The public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of the placement at the government’s disposal no sooner than two months and no later than one month before the time at which the placement order is due to expire.”

The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated (Article 509o § 2). In accordance with the provisions of Article 509o § 6, the person concerned must be given a copy of the request as soon as possible.

The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the placement (Article 509p).

Pursuant to Article 509q, if a request for the extension of the placement is submitted to the Regional Court, the initial placement order shall remain in force until the decision of the court is rendered. If the request is granted after the date on which the placement would have expired had no request for prolongation been submitted, the new period of placement is nonetheless considered to have commenced as from that date.

The Regional Court must immediately set a date for the examination of the case, and the person concerned must be informed promptly of this date (Article 509s § 1). The decision of the Regional Court must be rendered as soon as possible, but no later than two months from the date on which the request was lodged (Article 509t § 1). The court may, however, exceed this time-limit if it wishes to consider refusing the request – thus terminating the measure – and if it needs more information as to the way in which the person concerned might be released back into society. In such a case, the court has an additional three months to render its decision (Article 509t § 2). The Regional Court’s decision shall be reasoned. If it decides to prolong the placement order, the decision must be pronounced publicly (Article 509t § 3).

Both the public prosecutor and the person concerned may lodge an appeal with the Court of Appeal (Gerechtshof) of Arnhem within two weeks of the service of the judgment given by the Regional Court. However, this provision rules out an appeal in regard to the first decision to extend the placement for a period of one year (Article 509v).

There is no express provision requiring the release of the person concerned if the time-limits laid down by Articles 509o § 1 and 509t §§ 1 and 2 are not complied with, nor does the CCP impose any sanctions on exceeding these time-limits.

According to Netherlands case-law summary civil proceedings (kort geding) may be instituted in cases where a person placed at the disposal of the government wishes to obtain a court judgment on the lawfulness of his detention. However, in a case which was brought before the President of the Regional Court of the Hague, a request for the termination of the applicant’s placement was rejected, inter alia, in view of the fact that the court competent to decide on the extension of the placement would be dealing with the matter one week later (decision of 30 March 1990, published in Sancties 1990, pp. 352–53).

The date on which the registry of the Regional Court concerned receives the request for extension is considered as the date of submission (Court of Appeal of Arnhem, decision of 26 June 1989, published in Sancties 1990, pp. 294–96).

According to a judgment of the Supreme Court (Civil Division) of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no. 436) a placement order remains lawful even if the decision to extend it exceeds the time-limit now laid down by Article 509t § 1 of the CCP.

In a judgment of 29 September 1989 (NJ 1990, no. 2), the Supreme Court (Civil Division) held that only in certain circumstances would the State be obliged to terminate a placement order after its statutory period had expired and no decision as to its extension had been taken. In order to determine whether such an obligation existed, the court should have regard to the extent to which the statutory time-limit had been exceeded, the reasons for which the time-limit had not been complied with and the personal and societal interests involved.

In a more recent case, it was also held that the time-limit referred to in Article 509o § 1 of the CCP was not of an absolute nature. On 19 February 1993, in a case where this time-limit had been exceeded, the Supreme Court (Civil Division) found that in light of Article 509q the placement order had remained lawful even though the public prosecutor had lodged the request for extension three days after the date on which it should have been submitted to the registry of the Regional Court (NJ 1993, no. 302).


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in 1948 and lives in Budapest.

On 28 December 1987 the applicant brought an action against his ex-wife, seeking the division of their matrimonial property.

In the period between 29 March 1988 and 19 May 1992, ten hearings took place and the opinions of valuation experts were obtained.

Further hearings took place on 19 September, 28 October and 16 December 1994, 2 February and 23 March 1995. Meanwhile, the expert was invited to submit a new opinion and to complete it subsequently.

On 20 June 1995 the Buda Central District Court ordered the applicant to pay 675,000 Hungarian forints (HUF) to his ex-wife.

On appeal, the Budapest Regional Court, on 8 March 1996, quashed parts of the appealed judgment and remitted those parts to the District Court. Furthermore, it fixed the parties’ respective shares of the property.

On 27 May 1997, on the applicant’s petition for review, the Supreme Court quashed the second-instance judgment concerning the establishment of the parties’ property shares. Accordingly, this part of the case was also remitted to the District Court.

In the resumed proceedings, the District Court held hearings on 19 June, 1 September and 27 October 1998; it also appointed another expert. On 21 January 1999 the applicant’s motion for bias was dismissed.

Further hearings took place on 19 October 1999, 24 January and 6 March 2000. An on-site inspection scheduled for 19 September 2000 had to be postponed, because the applicant did not agree to the defendant’s personal attendance. A new opinion was submitted by the expert on 28 February 2001.

Another hearing was held on 19 June 2001. The next one scheduled for 10 July 2001 was postponed at the applicant’s request to 23 August 2001.

On 5 September 2001 the District Court fixed the parties’ respective shares in a real-estate of common ownership, granted ownership of it to the applicant and ordered him to pay compensation and unrealised rent to his ex-wife. The court relied on documentary evidence, the testimonies of the parties and the opinions of two expert architects. On 12 November 2001 the applicant appealed.

An appeal hearing took place on 1 March 2002. On 22 March 2002 the appellate court appointed an expert, who submitted his opinion on 25 June 2002.

On 6 November 2002 the Regional Court increased the amount of compensation to be paid by the applicant. It further quashed the part of the District Court judgment which concerned the unrealised rent and discontinued the proceedings in this regard. The judgment acquired legal force.

On 19 December 2002 the applicant filed a petition for review, alleging that the final decision was unfounded and at variance with the relevant substantive law.

In a preliminary examination under section 273 of the Code of Civil Procedure, on 13 May 2003 the Supreme Court refused to deal with the merits of the petition. It applied section 270 § 2 of the Code of Civil Procedure, as in force in the relevant period, according to which a review of substantive unlawfulness of final decisions was only admissible if a review was considered necessary from the perspective of harmonising or developing the application of the law.

On 24 September 2003 the Regional Court dismissed the applicant’s request to have the final decision rectified. It held that, in essence, the request was aimed at challenging certain provisions of the final decision which constituted res iudicata and was thus incompatible ratione materiae with the procedural rules concerning the rectification of decisions.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicants, son and father, were born in 1990 and 1954 respectively and currently live in Iasi.

From January 1998 to April 1998, the first applicant, who was then a seven year-old boy, was allegedly subjected to repeated rape and violence by P.E.

In January 1998, the child was followed home from school by P.E. In front of the applicant’s family’s apartment, P.E. grabbed the key from his hand, opened the door and forcefully pushed the boy inside. He hit the child several times in the stomach. He pulled the applicant’s clothes off and tied his hands and legs and gagged him with strips of white cloth that he had taken out of his trouser pocket. Then P.E. dragged the boy into the kitchen, removed a piece of furniture from against the wall and placed it near the couch. He bent the child over the furniture and sexually abused him. He then removed the gag and forced the child into oral sex. P.E. hit the applicant again several times in the stomach, head and genitalia, untied him and told him to put his clothes on. He threatened the child with a knife and warned him that he would kill him if anyone found out what had happened.

The first applicant was too scared to scream during the assault.

The abuse continued during the following months, several times per week. At a certain point, P.E. made a copy of the applicant’s key so he could enter the apartment. Sometimes he would wait for the child inside, sometimes he came with a dog and once with other persons, including two minor children. Before leaving the apartment, P.E. sometimes stole food and small sums of money.

Eventually the applicant told his brother and father about what was happening to him.

After the events the first applicant changed school and in October 2005 the family finally moved from Bacău to Iaşi, following the advice of the school psychologist.

The Government did not contest the description of the facts by the first applicant.

On 27 April and 4 May 1998 on behalf of his son, the second applicant reported the sexual abuse and violence inflicted on the child to the Bacău Police. He accused P.E., S.P. and L.I.D. He reiterated his complaints on 18 and 28 May, 4, 8 and 9 June and on 19 July 1998.

The police started investigating the case.

On 18 May 1998, at the request of the investigators, the first applicant underwent a medical examination at the Bacău Clinic. The record noted:

“... healing anal lesion and hypotonia of the anal sphincter. No signs of violence on the body ... The lesions necessitate 16-18 days of medical care and could have been caused by anal intercourse.”

A medical certificate issued on 19 May 1998 at the request of the police, summarised the findings of the examination.

On 12, 15 and 29 June 1998 P.E. gave statements to the police. He claimed that he had not been in the area during that period, and that he did not know the applicants’ family. He had only been in the building once, on New Year’s Eve, for approximately ten minutes. He admitted that he used to take his sister’s dog out for a walk but he had not done so in a while; during the time in question he had been training a similar dog, in the afternoons, from 5 p.m. to 7 p.m. During a polygraph test, P.E. showed simulated behaviour when asked whether he had had sexual intercourse with the first applicant.

S.P. and L.I.D. denied any participation in the abuse.

The first applicant was interviewed several times by the investigators. He gave details about the facts. His statements were recorded on 19 June 1998, 12 October 2001, 31 May 2002 and 25 March 2003. In some of the interviews he declared that he had told his brother and father about the abuse, but in others he stated that he had not mentioned anything to anyone. In his first statement he also told the police that the day after he had told his father about the abuse, his parents had allowed him to return on his own from school and he had remained alone in the apartment after school.

The second applicant gave statements to the investigators, relating the facts as his son had described them.

On 15 December 1999 the first applicant’s mother declared that she had suspected something was going on as her son’s voice on the phone had sometimes been trembling and as she had sometimes found the house untidy and litter in the bathroom, but that she had thought the children were responsible. Before the prosecutor she supplemented her statements and stated that during that time she had noticed that food and money had disappeared from the house.

The first applicant identified P.E. in a line up at the police headquarters.

Several other witnesses were interviewed by the police, including neighbours and acquaintances.

R.M., the neighbour from upstairs, stated that she had no knowledge of what had happened in the applicants’ home. A few days later she changed her statements and declared that she had seen a man who fitted P.E.’s description entering the applicants’ apartment with a dog during the period in question. She explained that she had been afraid that if she talked about what she had seen, the neighbours would have thought she had been spying on them. During the investigations and court proceedings R.M. changed her statements, claiming both to have seen P.E. entering the victim’s apartment several times, between February and March, and to have seen him entering only once.

On 10 January 2000 the police confronted R.M. and P.E. They both maintained their previous statements.

B.V. informed the police that at the second applicant’s request, he had followed the applicant to school and home a few times in April 1998. He had noticed P.E. in the vicinity several times, and on 22 April 1998 had seen him forcing the first applicant into the apartment.

R.I., R.M.’s adolescent son, stated that he had seen P.E. entering the victim’s home from January to April, sometimes with a dog. On 27 June 1998 the police organised a confrontation between R.I. and P.E. R.I. maintained that he had seen P.E. entering the apartment with the victim and then had heard the child scream. P.E. denied having seen R.I. or having abused the first applicant.

The investigators also searched the applicants’ and P.E.’s homes, but found no further evidence to support the accusations. They checked the record of calls made from the applicants’ telephone during the period under investigation. They also checked and confirmed that the upstairs neighbours could see, from the hallway, who entered the applicants’ apartment.

During the investigations the first applicant underwent several medical and psychiatric evaluations in the presence of his father.

On 1 February 2000 a new medical examination by the Bacău Laboratory of Forensic Medicine, ordered by the police, confirmed the findings of the expert examination of 18 May 1998. The doctors considered that it was impossible to tell whether the perpetrator had been an adult or a minor. They concluded that the lesions could only have been caused by repeated sexual abuse.

On 16 June 2000 the Prosecutor’s Office attached to the Bacău District Court decided to discontinue prosecution of P.E. and not to prosecute S.P. and L.I.D. The second applicant objected.

On 27 July 2000 the prosecutor at the Bacău District Court allowed the objection and sent the case back to the police for further investigation.

On 28 February 2001 the Prosecutor’s Office attached to the Bacău District Court again decided to discontinue the prosecution. On 5 September 2001 the second applicant’s objection was allowed by the Prosecutor’s Office attached to the Supreme Court of Justice. The latter sent the case to the District Court prosecutor and ordered him to continue the investigation.

On 7 March 2002 the prosecution file was sent to the Prosecutor’s Office attached to the Bacău County Court with an instruction to continue the investigation.

On 16 September 2002 the prosecutor at the Bacău County Court discontinued the prosecution of P.E. and decided not to prosecute S.P. and L.I.D. on the ground that they had not committed the crimes. It was also decided to continue the investigation in order to identify the criminals.

The second applicant appealed against the decision. On 11 November 2002 the Prosecutor’s Office attached to the Bacău Court of Appeal reversed the decision.

On 8 April 2003, the prosecutor at the Bacău County Court committed P.E. to trial for rape and unlawful entry of the victim’s home (violare de domiciliu). It was also decided not to prosecute S.P. and L.I.D. The first applicant sought civil damages in the amount of 300,000,000 Romanian lei.

During this period some witnesses were brought in again for interviews and a new expert report was drafted concluding that the anal lesions suffered by the first applicant may have been produced ten to twelve days before the expert examination of 19 May 1998. On 31 March 2002, the second applicant refused to subject his son, the first applicant, to another psychiatric evaluation.

Throughout the investigation and prosecution, the second applicant complained several times about the length of the proceedings. His complaints were dismissed by the Prosecutor’s Office attached to the Bacău District Court on 16 August 1999 and 29 February 2000. On 12 July 2002 the Bacău County Police answered a similar complaint, outlining the latest procedural steps taken in the case.

In addition, on 22 November 2001 the second applicant complained that he, his family and some of the witnesses had received threats from P.E. On 8 November 2004 P.E. threatened the applicants with retaliation. They reported the incidents to the police.

On 20 April 2004 the second applicant complained about the prosecutor’s decision not to prosecute S.P. and L.I.D. On 21 May 2004 the Bacău District Court dismissed the complaint. The decision became final as the parties did not appeal against it.

The case was initially referred to the Bacău County Court. However, on 27 May 2003 the County Court changed the legal classification of the crimes and sent the case to the District Court. It noted that at the time when the facts occurred, males were not recognised as potential victims of rape. Furthermore, at the time of the investigations, same-sex relations had been decriminalised. Therefore the facts under investigation could only be classified as the crime of “sexual perversion” and “sexual corruption of a minor”, which were under the jurisdiction of the district courts.

The Bacău District Court started the examination of the case. On 13 May 2003 the first applicant gave a detailed description of the facts. P.E. denied having committed any crime against the applicant.

In September 2003 the first applicant’s older brother gave a statement to the court. He related what his brother had told him about the abuse. He further stated that around that period (January to April 1998) his brother’s behaviour had changed, he had refused to eat, had constantly been scared and had sometimes had blood on the back of his underpants. He declared that their mother had also noticed those blood stains.

The first applicant’s mother admitted that neither she nor her husband had taken time off work to accompany the child and see what had happened, although she had noticed the changes in his behaviour and sometimes even physical signs of potential abuse.

Several witnesses were interviewed by the court, including the neighbours R.I. and R.M., as well as S.P.

Between 20 December 2002 and 25 March 2003, the first applicant underwent a psychological evaluation. The final report revealed that he showed anxiety when shown his alleged aggressor’s image, uncertainty and social isolation; that he wished to have the routine of a “normal child”; and that he had a tendency to exaggerate and invent things, common to sufferers of trauma caused by such violence, especially children.

On 3 June 2003 the second applicant complained about the length of the proceedings and about P.E.’s request for release. On 11 August 2003 he complained that P.E. had been released from detention.

On 17 November 2003 the first applicant underwent a psychiatric evaluation in Iaşi Hospital No. 7. The examination commission noted that he was scared, insecure, had difficulty concentrating and showed the frustration associated with the experience of not being believed by others.

On 5 May 2004 the Bacău District Court acquitted P.E., on the ground that the crimes had not been committed by him.

The court noted in particular that the parents had failed to notice the change in their child’s behaviour and to notify the authorities in good time, but rather had waited until after the abuse had been going on for some time. The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against P.E. The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of P.E.’s presence in the victim’s apartment or any evidence in P.E.’s apartment to support the accusation against him. Lastly, the court considered that the findings of the medical report were not conclusive as to P.E.’s guilt.

On 4 October 2004 the Bacău County Court dismissed the appeals lodged by the prosecutor and the applicant against the judgment given by the District Court.

The County Court found that there were contradictions in the statements given by the parties and witnesses. It acknowledged that such contradictions may have been caused by the time that had lapsed between the events and the examination of evidence by the courts, but considered that the length of the investigations had not been the main cause of the discrepancies. Accordingly, it noted that from the beginning of the investigation the second applicant and the witnesses had given contradictory descriptions of the aggressor in their various statements and considered that some of the witnesses had been dishonest and that the victim’s father had tried to influence several individuals to testify against P.E. The court also considered that the police line up had not been carried out properly, as the persons chosen to stand with P.E. had differed in physical appearance, in particular their height, length of hair, and posture. It also noted that only one family from the whole block of flats had heard the child screaming. The court was concerned by the fact that despite the alleged physical evidence of abuse (blood stains for example) and other odd occurrences around the house (missing food, moved furniture), the parents had waited a long time before reporting the alleged abuse to the police. Lastly, it noted that his psychological profile indicated that the first applicant was prone to exterior influence and fantasizing, and considered that he might have “put his parents on a false track, either because he did not know who the aggressor was or because he wanted to hide the latter’s identity”.

On 20 January 2005 the Bacău Court of Appeal dismissed, by two votes to one, the appeals in cassation lodged by the prosecutor and the applicant. It reiterated the arguments put forward by the County Court. The dissenting judge argued that the evidence in the file was sufficient to convict P.E. for sexual corruption and unlawful entry.

At the date when the abuse against the first applicant occurred, the relevant provisions of the Criminal Code read as follows:

“(1) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will, is punishable by three to ten years of imprisonment.

(2) The sentence will be from five to fifteen years if:

(a) the act was committed by two or more than two persons together; ...

(3) The sentence will be from ten to twenty years if the victim is not yet fourteen years old ...”

“(1) Sexual intercourse with a female who has not yet reached fourteen years of age is punishable by imprisonment of from one to five years.”

“(1) Sexual intercourse between persons of the same sex, carried out in public or which causes a public scandal, is punishable by imprisonment of between one and five years.

(2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and loss of certain rights.

(3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will, or which is performed through coercion, is punishable by imprisonment of between three and ten years and loss of certain rights.”

“(1) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from one to five years.”

“(1) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from three months to two years or by a fine.”

Articles 197 and 198 have been amended successively in order to recognise males as potential victims of rape and statutory rape, by Law no. 197/2000, which entered into force on 15 November 2000 and by Emergency Ordinance no. 89/2001, which entered into force on 26 June 2001. The latter Ordinance also decriminalised consenting same sex intercourse.

On 28 September 1990 Romania ratified the United Nations Convention on the Rights of the Child (“the CRC”), in force since 2 September 1990. The CRC stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children (Article 3).

The CRC urges Member States to take all appropriate measures to protect children from all forms of violence, including sexual abuse, and to provide for the recovery and social reintegration of victims. The relevant articles read as follows:

“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”

“States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;”

“States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”

The Committee on the Rights of the Child interpreted the text of the CRC in its General comments. Its latest General comment no. 13 (2011) on the right of the child to freedom from all forms of violence is aimed at guiding State parties in understanding their obligations under Article 19 of the CRC, building on existing documents and reflecting on the evolution of the protection in question. The Committee acknowledged the efforts of the States to prevent and respond to violence. It nevertheless found that the States were lagging behind in their obligations:

“§ 12 ...In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate.”

The Committee expresses the view that States are under a “strict obligation” to undertake all appropriate measures to fully implement this right for all children (paragraph 37 of the General comment). Among the State obligations, the Committee identified the need to: review and amend domestic legislation in line with Article 19 of the CRC; ensure protection to child victims and effective access to redress and reparation; enforce law in a child-friendly way; and provide for counselling support (paragraphs 41-44 of the General comment).

The Committee develops further on the content of the “protective measures”, stressing the importance of prevention, the need for an easily accessible report mechanism, the importance of rigorous and child-sensitive investigation and of effective and child-friendly justice where due process must be respected (in particular paragraphs 45-58 of the General comment).

On 25 October 2007 the Council of Europe, recognising that the well-being and best interests of children are fundamental values shared by all member States, adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member States to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts.

On 17 May 2011 the respondent State ratified that Convention which entered into force in respect of Romania on 1 September 2011.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in 1973 and lives in the town of YuzhnoSakhalinsk in the Sakhalin region.

In December 1999 the applicant arrived in Moscow. On 3 December 1999 he was examined by the Moscow medical commission, which found him to be in good health and fit to drive a car.

On 5 December 1999 the applicant gave an interview to a national TV station, NTV, which was running a story on a dispute between private holders of government bonds and the Ministry of Finance. During the interview the applicant, the head of a group of private bondholders, accused the Ministry of initiating a vendetta against him and ordering assaults on bondholders to pressurise them into withdrawing their lawsuits against the Ministry. The interview was aired on NTV’s weekly political analysis show, Itogi.

On the same day police officers stopped the applicant and his brother in the street and asked them to show identification documents. The Government alleged that the police officers had acted on information about wanted criminals who looked remarkably similar to the applicant and his brother. According to the Government, the applicant and his brother were not in possession of any papers which could have proved their identity and they were taken to Koptevo police station in Moscow (ОВД «Коптево» г. Москвы) owing to their “refusal to comply with the orders of the police officers and use of obscene language in public”. According to the applicant, he and his brother disclosed their identity, his brother presenting a military ID card and the applicant showing a work pass.

At the station a police officer, Kh., drew up a note addressed to the head of the Koptevo police department. The note read as follows:

“[I] am writing to inform you that on 5 December 1999, at 1.45 p.m., Mr Belousov was brought to the police station together with Mr V. [NB: the police officer]; at the address ..., following several requests to present documents proving his identity, [Mr Belousov] refused to show them and started swearing at us in the presence of private individuals, using obscene language and at the same time repeating that it would cost us five thousand roubles; the two men refused to follow us to Koptevo police station.

The identity check was prompted by telephone message no. 12316.”

According to the applicant, he was severely beaten in the police station by a group of allegedly drunk police officers. After the beatings he was moved to a cell. Several hours later he was brought to a room and forced to strip to the waist. He placed his clothes in a bag and was forced to lift the bag, which weighed approximately four kilograms, and to put it down. He had to perform this “exercise” over and over again. The applicant alleged that the task had been extremely difficult for him, as on 6 October 1999 he had undergone surgery and had been prohibited from lifting weights heavier than a kilogram. The applicant lost consciousness and was taken to the Botkin clinical hospital.

The Government, relying on information provided by the Prosecutor General’s Office, confirmed the fact that the applicant had sustained injuries.

In the hospital the applicant was examined by a neurosurgeon, a neuropathologist, a urologist and an oculist. Medical report no. 29314 was drawn up. The report indicated that the applicant had been admitted to the hospital at 6.45 p.m. on 5 December 1999 and that he had been diagnosed with “an injury to the front abdominal wall, bruises on the forehead and left hand, an injury to the kidneys, a craniocerebral injury and concussion”.

The applicant stayed in the hospital until 10 December 1999. According to medical certificates nos. 081114, 066415 and 091922 issued on 10 and 21 December 1999 and 4 February 2000 respectively, the applicant was on sick leave until 10 February 2000 and underwent treatment at home.

On 10 February 2000 the applicant was examined by an occupational medical expert panel (врачебно-трудовая экспертная комиссия) and recognised as physically disabled. Medical certificate no. 163147 issued by the panel indicated that the applicant had “a second-degree disability”.

The applicant’s mother complained to the Koptevo district prosecutor’s office that on 5 December 1999 the applicant had been unlawfully arrested and beaten up.

On 14 December 1999 the Koptevo district deputy prosecutor sent a letter to the applicant’s mother informing her that criminal proceedings had been instituted against the police officers at Koptevo police station.

On 14 March 2000 an investigator from the Koptevo district prosecutor’s office closed the criminal proceedings, finding that there was no case of ill-treatment to answer. The relevant part of the decision read as follows:

“In the course of the investigation it was established that on 14 December 1999, at 1.45 p.m., Kh. and V., on-duty officers from the Koptevo district police department, stopped two persons near house no. ... who resembled persons wanted in connection with telephone message no. 12316. The persons concerned refused to present identity documents and were brought to Koptevo police station for an identity check. At the station one of them identified himself as Mr Dmitriy Aleksandrovich Belousov, a third-year student at a military academy; the other introduced himself as Mr Aleksandr Aleksandrovich Konstantinov. Following a check though the Central Data System the identity of Mr D.A. Belousov was confirmed, and at 4 p.m. he was handed over to a representative of the military commander’s office. The second person (Mr I.A. Belousov, as it was established later) was placed in a cell for administrative arrestees; later he felt sick and an ambulance was called for him. At 5.45 p.m. he was handed over to an emergency team which took him to the Botkin clinical hospital.

According to a statement by [the applicant], on 5 December 1999 he and his brother Dmitriy were on their way to Koptevo market. At approximately 12.10 p.m. a police officer, wearing no badge of rank or insignia, stopped them and asked them to show some identity documents. [The applicant] showed his “Lukoil-City” company work pass, and [his brother] showed his military ID card. At that moment another police officer, wearing badge no. 4461, approached them and pushed [the applicant]; [the latter] screamed and the police officer then twisted his arm. Consequently [the applicant] asked to be taken to a police station for an explanation. An on-duty patrol which had arrived at the scene took [the applicant] and [his brother] to Koptevo district police station. At the police station [the applicant] went into the lobby to smoke a cigarette. An on-duty sergeant, wearing badge no. 4491, said that arrestees could not smoke there; [the applicant] responded that he had not been arrested, and the sergeant then called a captain who was standing on the steps of the police station. The captain started hitting [the applicant]; when, responding to [the applicant’s] screams, [his brother] ran from the duty room, the captain hit [his brother] with a machine gun and dragged him back to the duty room. The sergeant wearing badge no. 4491 and another sergeant, wearing badge no. 4488, continued beating [the applicant] up. Then [the applicant] crawled to the duty room and asked the police officers who were there to call an ambulance. [The applicant] and [his brother] were placed in a cell for administrative arrestees; the police officers dismissed all their requests to place a call to their house or to call an ambulance. During his detention at the station [the applicant] was twice submitted to a bodily search without any record being taken ... At 5.20 p.m. a major from the military academy arrived to pick up [his brother]. Subsequently a district police officer arrived at the station and, after forcing [the applicant] to strip to the waist, he and the captain present at the station made [the applicant] lift his clothes and move them from one place to another, following which [the applicant] lost consciousness. [The applicant] regained consciousness in a room where it was extremely hot; the police officers took him to a shower room where an officer on duty provided him with medical assistance. From that time on [the applicant] was almost unconscious until his transfer to the surgical wing of the hospital. An ambulance was called for him and subsequently [the applicant] was brought to the Botkin clinical hospital.

[The applicant’s brother], who was questioned as a witness, confirmed [the applicant’s] statements in general, but also stated that two police officers had carried [the applicant] from the lobby. When [the applicant’s brother] was leaving the station, [the applicant] had not had any injuries to his head and hands.

According to a report by the Koptevo district police department, badge no. 4461 is assigned to Mr P., badge no. 4488 is attributed to Mr V. and badge no. 4491 is assigned to Mr Kh. During an identification parade in which the police officer wearing badge no. 4491 (Mr Kh.) took part, [the applicant] identified him and noted that the police officer in question had not beaten him up but that he had arrested him; [that statement] is corroborated by other police officers’ statements.

According to a statement by the police officer, Mr Kh., he and Mr V. were on duty near Koptevo market on 5 December 1999. At approximately 1.40 p.m. they noticed two men who looked similar to criminals wanted in connection with telephone message no. 12316. In response to a request for identity documents, a man ([the applicant], as it was subsequently established) started screaming obscenities at the police officers. The two men refused to show identity documents. In response to the officers’ request that they go to Koptevo police station, [the applicant] said that he would not follow the officers and that he would not speak to a police officer below the rank of major; he also demanded that they call a car. A group on patrol was called to the scene to bring the two men to the police station. Physical force was not used against the two men.

Mr Kh.’s statements are fully corroborated by a statement from Mr V.

Mr D., who was questioned as a witness, stated that on 5 December 1999, in response to a call from an on-duty officer he, as a member of a group on patrol, together with Mr L. and Mr K., had arrived to render assistance to the on-duty officers. Two apprehended persons were handed over to them; the patrol took them to Koptevo police station. They did not use physical force against the two men. Mr D.’s statements are fully corroborated by statements from Mr L. and Mr K.

Mr Do., an officer on duty at Koptevo police station, who was questioned as a witness, stated that on 5 December 1999 two apprehended persons had been brought to the duty unit of Koptevo police station. One of the arrestees introduced himself as Mr Dmitriy Aleksandrovich Belousov, a student at the military academy, and showed his military ID card...; the other person introduced himself as Mr Aleksandr Alekseyevich Konstantinov and did not have any documents on him. Following a check through ... databases which produced a negative response, [the applicant] was asked to state his real name. Subsequently [the applicant] attempted to leave the station and started smoking. An officer on duty, Mr P., made a remark, following which [the applicant] fell to the floor and started screaming that he was being beaten up. When [Mr Do.] asked him what was going on, [the applicant] said that he had undergone surgery and showed scars on his stomach. The arrestee was reprimanded and placed behind bars. Subsequently [the applicant] continued behaving provocatively, used obscene language, threatened the police officers and tore up roubles and dollars. At 5.30 p.m. he complained that he did not feel well and emergency doctors were called, who transferred him to the Botkin clinical hospital. The police officers behaved properly towards [the applicant]; no physical force was used.

Mr Do.’s statements were confirmed by statements from police officers Mr R., Mr P., Mr Ka. and Mr S.

According to the statements given by a witness, Mr F., on 5 December he and a group of emergency doctors arrived at Koptevo police station. A man was sitting in the station behind bars, with his hand on his stomach. He complained of pain in his stomach. During conversation he stated that he was disabled and that he had recently undergone surgery during which a part of his stomach had been removed; he began showing the scars on his stomach. No visible injuries were discovered on [the applicant]. The police officers behaved properly towards [the applicant]. The patient was taken to the Botkin clinical hospital.

Mr Vu., an emergency team medical assistant, who was questioned as a witness, testified that on 5 December 1999 he and the emergency team had arrived at Koptevo police station. A man (the applicant, as was later established) was sitting on a couch behind bars with his hand on his stomach. [The applicant] said that he had been beaten up by the police. Other arrestees held at the station said that [the applicant] was lying. In the car [the applicant] talked, saying that he had undergone surgery. He stated that when he had been approached by police officers in the street and had been asked to show some identity documents he had used obscene language.

Ms S., who was questioned as a witness, stated that on 5 December 1999 she had been in a room for administrative arrestees. Three more persons were being held there; one of them ([the applicant], as it transpired later) behaved provocatively, screaming and threatening the police officers. The police officers behaved properly towards all the arrested persons; they did not use physical force.

During an additional interview [the applicant] stated that a captain had begun hitting him in the lobby. At first [the captain] had hit him with his right hand on the upper part of the left shoulder; after that blow [the applicant] slipped down by the wall and fell near a rubbish bin. Then the captain kicked [the applicant] twice: once in the stomach and once in the back near the kidneys. The first kick in the stomach was particularly hard. After that the sergeants approached [the applicant] and hit him approximately six times in the stomach and back. The applicant then crawled into the duty room where he was hit several times in the buttocks...

According to a report issued in the Botkin clinical hospital [the applicant] had an injury to the abdominal wall, an injury to the right kidney, bruises on the forehead and left hand, a craniocerebral injury and concussion; his state of health was satisfactory. Following ultrasound examinations of the abdominal cavity and kidneys no pathology was detected.

A forensic medical examination of [the applicant] was performed in the case. According to the expert report, [the applicant] had sustained concussion and an injury to the forehead, which constituted elements of a single trauma and belonged to the category of injuries causing mild damage to health, that is, a short-term deterioration in health lasting less than three weeks... The diagnosis of “an injury to a kidney” indicated in the medical documents was not confirmed by objective clinical data and the results of the special examinations... The diagnosis “traumatic encephalopathy” indicated in the medical documents could not be examined by the expert, because there was insufficient objective data for analysis... At present [the applicant is suffering] from psycho-vegetative syndrome and depression, and needs psychiatric treatment. There is no mention of an injury to the post-surgical sutures in the medical documents presented for expert examination. Differences in the scar tissue along the line of the postsurgical sutures do not exclude a possible partial opening of the sutures in the upper part.

Taking into account the fact that the arguments raised by [the applicant] were not objectively confirmed in the course of the pre-trial investigation ..., [the investigator] orders the closure of the criminal proceedings instituted pursuant to Article 286 § 3 (a) of the Criminal Code of the Russian Federation...”

The applicant complained to the Moscow city prosecutor and the Koptevo District Court of Moscow that the criminal proceedings against the policemen had been closed.

According to the Government, the decision of 14 March 2000 was quashed on 24 March 2000 by a higher-ranking prosecutor and the case was remitted for additional examination. No copy of that decision was submitted to the Court.

On 27 April 2000 an investigator from the Koptevo district prosecutor’s office again discontinued the criminal proceedings, finding that there was no case of ill-treatment to answer. The decision of 27 April 2000 was identical in its wording to the decision of 14 March 2000, save for two additional paragraphs in which the investigator recounted the testimonies of two witnesses, Mr Ch. and Mr Ku., who had been detained at the police station together with the applicant. Both witnesses stated that they had not seen the alleged beatings and that the applicant had behaved “provocatively”. According to the applicant, the decision of 27 April 2000 was not served on him.

In the meantime, on 18 April 2000, the Koptevo District Court of Moscow disallowed the applicant’s complaint against the decision of 14 March 2000. The District Court held as follows:

“The plaintiff challenges the decision issued in criminal case no. 268869.

A complaint concerning a decision issued in the course of criminal proceedings cannot be examined in civil court proceedings. Complaints concerning actions of the prosecution authorities cannot be examined by courts of general jurisdiction, as special laws exist relating to the prosecution”.

The Government, relying on a report issued by the President of the Koptevo District Court in March 2006, submitted that the District Court had refused to examine the applicant’s complaint because the decision of 14 March 2000 had been quashed by a prosecutor and the investigation had been reopened.

On 12 May 2000 the applicant received a copy of the decision of 18 April 2000. The applicant’s representative asked the District Court to restore the time-limit for lodging an appeal against that decision. A copy of the statement of appeal was attached to the request. No response followed. On 27 November 2001 the applicant’s representative complained to the President of the Koptevo District Court that her request had not been examined. The stamp on the letter of 27 November 2001 shows that the District Court received the letter the same day. The applicant did not receive any response.

On 20 March 2006 the Moscow city deputy prosecutor quashed the decision of 27 April 2000 and reopened the investigation into the applicant’s ill-treatment complaint, finding as follows:

“The decision [of 27 April 2000] on the closing of a criminal case was issued unlawfully and without any grounds and should be quashed, because in this case it is necessary to question [the applicant’s mother]; to identify and question all the individuals detained in the cell for administrative arrestees when [the applicant] and [his brother] were at the police station; to question further [the applicant’s brother] about his and [the applicant’s] injuries and about material evidence showing that those injuries were sustained; to question further the emergency doctors who arrived at the police station and took [the applicant] to the Botkin clinical hospital in Moscow about the visible injuries; to question thoroughly the doctor who performed the initial examination of [the applicant] in the Botkin hospital; to organise, if necessary, confrontation interviews between the doctors; to carry out a legal evaluation of the [the applicant’s] injuries discovered during the forensic medical examination (concussion, an injury to the forehead, an injury to the left hand and an injury to the right shoulder) and to perform other investigative actions aimed at establishing the truth in the case.”

On 29 October 2006 an investigator from the Koptevo district prosecutor’s office discontinued the criminal proceedings against the police officers, concluding that no criminal conduct had occurred (Article 24 § 2 of the Code of Criminal Procedure). The investigator copied the wording of the decision of 27 April 2000, merely adding that the forensic medical examination had established that the applicant’s injuries could have been caused by blows administered with a blunt firm object, possibly on 5 December 1999. He also included additional statements by the two witnesses Ms S. and Mr Ku., who had been unable to recall further details of their stay at the police station in December 1999 owing to the length of time since the events, and had merely confirmed their statements given to the investigator in 2000. The investigator did not question the applicant’s mother and brother because he could not establish their place of residence. He was also unable to identify all the individuals who had been detained at the police station together with the applicant, because the registration logs bearing the names of persons detained at Koptevo police station had been destroyed.

On 19 January 2007 the Moscow city deputy prosecutor quashed the decision of 29 October 2006, reopened the investigation into the applicant’s ill-treatment complaints and ordered that investigators should “take procedural decisions concerning the fact that injuries were inflicted on [the applicant], question [police officers] Mr Sh. and Mr V. and take other investigative actions necessary in the course of the investigation”. It appears that the proceedings are now pending.

The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate or continue a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher prosecutor or to a court of general jurisdiction (Articles 113 and 209).

On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (“the new CCP”). Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.

The Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides, in so far as relevant, as follows:

“1. Everyone has a right to liberty and personal security.

Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.”

Section 239 of the Administrative Code (in force until 1 July 2002) provided that the police could subject a person to an administrative arrest to prevent an administrative offence, to establish a person’s identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. Section 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders including those who had committed a minor disorderly act, who could be detained as long as necessary until their case was considered by a district (town) judge or a high-ranking police officer. Section 240 set out the requirements with regard to arrest reports. By virtue of section 240 an arrest report was to be signed by the official enforcing the arrest and the arrestee. Section 246 of the Administrative Code provided for appeal against administrative arrest to a prosecutor or a high-ranking police officer.

Section 158 of the Administrative Code (see above) established that a minor disorderly act, that is, use of offensive language in public, harassment and other similar acts which disturbed the public order and the peace of individuals, was punishable by up to fifteen days’ administrative arrest.


BITROS A.B.E.E. IRON AND STEEL PRODUCTS, KORAL E.P.E. GENERAL REPAIRS OF SHIPS and MARINAKIS A.E. v. GREECE

All three applicant companies are registered under Greek law. The first has its seat in Apropirgos in Attika, the second in Piraeus and third in Keratsini. They are represented before the Court by Mr C. Calavros, a lawyer practising in Athens.

A.

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

All three applicant companies are creditors of Elefsis Shipyards S.A., a company 97,1% of the capital of which belongs to four public sector banks. The Commercial Bank of Greece holds 65% of the capital, the Industrial Development Bank of Greece 24,6%, the Investment Bank, which is a subsidiary of the Commercial Bank, 4,7% and the Ionian Bank 2,8%.

In July 1992 Elefsis Shipyards S.A. was sold to A.M. Ltd under Article 44 of Law 1892/1990, which applies to "ailing companies". The sale fell within the context of a settlement procedure initiated by the majority of the creditors of the shipyard. It was approved by the majority of its shareholders and the Government. Under the terms of the sale agreement, A.M. Ltd did not become liable for most of the outstanding debts of Elefsis Shipyards except for, inter alia, claims of the shipyards' suppliers that had been properly entered into the company's books. It appears that the applicant companies had claims falling within this category.

Elefsis Shipyards remained under A.M. Ltd until 11 August 1995. Although A.M. Ltd did not honour its obligation under the above-mentioned agreement to satisfy the claims of the applicant companies, the latter continued supplying the shipyards. These were heavily financed by a number of public sector banks including those that had previously owned them.

On 11 August 1995 A.M. Ltd, considering that the July 1992 contract for the purchase of the shipyards was null and void, withdrew from it. It also decided to surrender the management of the shipyards to the Investment Bank. Moreover, it was announced that the shipyards would suspend their operation.

On 25 August 1995, five of the creditors of Elefsis Shipyards - the Social Security Fund, the National Bank of Greece, the Commercial Bank of Greece, the Agricultural Bank of Greece and the Industrial Development Bank of Greece - requested the Court of Appeal (Efetio) of Athens to place Elefsis Shipyards under the special liquidation procedure of Article 46a of Law 1892/1990. They asked that the Investment Bank be appointed special liquidator. They also requested that the shipyards' personnel should not be dismissed so that the shipyards would continue functioning and discharge their obligations under certain contracts they had with the Greek State. This would have enabled the shipyards to be sold at a higher price later.

This application was notified to a number of interested parties but not to all the creditors of Elefsis Shipyards. The applicant companies were not among those to whom the application was notified.

The second and third applicant companies, together with 14 other companies, intervened in the proceedings arguing that placing Elefsis Shipyards under the special liquidation procedure of Article 46a of Law 1892/1990 would amount to a violation of their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

On 19 September 1995 the Court of Appeal of Athens considered that the conditions set forth in Article 46a of Law 1892/1990 were met in the Elefsis Shipyards' case. The claims of the creditors who had lodged the application represented more than 51% of the total claims against the company and the shipyards were a commercial company that had suspended its operation for financial reasons. As for the rest, it was not necessary for the court to examine the reasons why the company had become indebted, who was responsible for the debts and whether placing the company under the special liquidation procedure would be in the best interests of all the creditors or of third persons or even of the company itself.

According to the Court of Appeal, the right of the second and third applicant companies under the Constitution and the Convention to be heard was not violated because they could intervene in the proceedings. Moreover, the Constitution and the Convention did not prevent the State from enacting laws for the control of the use of private property in the public interest. Therefore, the court decided that Elefsis Shipyards should be placed under the special liquidation procedure of Article 46a of Law 1892/1990.

Furthermore, the court considered that, under the above-mentioned law, it had to appoint as the special liquidator the bank suggested by the creditors, in casu the Investment Bank. It also decided that the shipyards' personnel should not be dismissed. The shipyards should continue functioning and fulfil their obligations under certain profitable contracts which were pending. This would increase the value of the company which would then be sold at a higher price.

According to the judgment of the Court of Appeal, a company placed under special liquidation in accordance with Article 46a of Law 1892/1990 cannot be declared bankrupt. No judicial decisions can be enforced and no interim measures can be ordered against it.

The decision of 19 September 1995 of the Court of Appeal, the text of which was finalised on 26 September 1995, was not served on the intervening parties.

On 30 January 1996 the first applicant company obtained an order for payment against Elefsis Shipyards for 118,586,000 drachmas plus interest and costs. This was served on Elefsis Shipyards on 13 February 1996 and 18 November 1997.

On 14 February 1996 the second applicant company obtained a similar order for 25,000,000 drachmas plus interest and costs. On 20 March 1996 it obtained a further order for 32,500,000 drachmas plus interest and costs and on 16 July 1996 an order for 55,000,000 drachmas plus interest and costs. These were served on Elefsis Shipyards on 19 February 1996, 21 March 1996 and 17 October 1997 respectively. They were all reserved on 14 November 1997.

On 26 March 1996 the third applicant company obtained an order for 6,000,000 drachmas plus interest and costs, on 11 April 1996 an order for 9,000,000 drachmas plus interest and costs and on 21 May 1996 an order for 10,000,000 drachmas plus interest and costs. These were served on Elefsis Shipyards on 27 March 1996, 16 April 1996, and 17 October 1997 respectively. They were all reserved on 14 November 1997.

These orders have been served on Elefsis Shipyards and have acquired res judicata effect. However, it has proved impossible to have them enforced.

Elefsis Shipyards continue functioning and making losses. They are financed by the same banks that requested its placement under special liquidation.

B. Relevant domestic law

According to Article 631 of the Code of Civil Procedure, a payment order can be enforced upon being served for the first time on the person concerned.


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Terence Roy Murray, is a British national who was born in 1967 and lives on the Isle of Wight. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.

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

The applicant received a notice of intended prosecution pursuant to section 172 of the Road Traffic Act 1988, requiring him to name the driver of his car on 28 September 2005. He confirmed that he had been driving his car at that time.

On 6 October 2005 the police made a conditional offer of a fixed penalty amounting to GBP 60 and a three penalty point endorsement on his licence, which the applicant accepted and paid.

The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 8;Non-pecuniary damage - award

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

The applicant was born in 1952 and lives in Chişinău. He is a writer and a professor of French.

The applicant's parents, Dumitru Ciubotaru and the late Sofia Caraiman were born in 1927 and 1928 respectively, in Bălţi, province of Bessarabia, Romania. Their Romanian civil status documents did not contain any information concerning their ethnic identity. In their marriage certificate issued by the Soviet authorities in 1949, the entry for ethnicity was left blank. However, the applicant's birth certificate issued by the Soviet authorities in 1952 recorded his parents as ethnic Moldovans. On the applicant's mother's birth certificate issued by the Soviet authorities in 1965 the ethnicity was also left blank. Later, the applicant's parents were recorded as ethnic Moldovans on their Soviet identity cards issued in 1976 and 1979, in accordance with applications completed and signed by them in which Moldovan ethnicity was indicated. On his Soviet identity card the applicant was also indicated as an ethnic Moldovan.

In 2002 the applicant applied to the Moldovan authorities to have his old Soviet identity card replaced by a Moldovan identity card. On the application form he wrote “Romanian” under ethnicity. However, he was told that his application would not be accepted unless Moldovan ethnicity was indicated on it. The applicant complied.

Shortly thereafter the applicant wrote to the local civil registration authority and requested, inter alia, that his ethnicity entry be changed from Moldovan to Romanian. In an answer dated 11 February 2003 the applicant was informed that since his parents were not recorded as ethnic Romanians in their birth and marriage certificates, it was impossible for him to be recorded as an ethnic Romanian.

On an unspecified date the applicant wrote to the central civil registration authority and again requested that his ethnic identity entry be changed from Moldovan to Romanian. In an answer of 2 July 2004 he was informed that Romanian ethnicity had not been indicated in his parents' documents and that, therefore, he could not claim such an ethnic identity. He was advised to search the National Archives for traces of Romanian origin of his grandparents and other ancestors. The applicant wrote numerous complaints to the Prime Minister, the President of the country and other officials, but to no avail.

On 26 July 2004 the applicant initiated proceedings against the State authority responsible for civil registration and identity papers and requested, inter alia, that his ethnicity entry and that of his parents be changed to Romanian in the State Population Registry database and in his identity papers. He argued that he did not consider himself to be an ethnic Moldovan and that it was contrary to his right to freedom of conscience and to his personal dignity to be considered part of an ethnic group which he believed to be an artificial creation of the Stalinist regime.

On 15 November 2004 the Rascani District Court dismissed the applicant's action on the ground that he had failed to prove that his parents were of Romanian ethnic identity as no such identity had been recorded in their identity papers. The applicant appealed and relied, inter alia, on the provisions of the Law on National Minorities (see paragraph 15 below) and on Article 8 of the Convention.

On 15 December 2004 the Chişinău Court of Appeal dismissed the applicant's appeal on the same grounds, stating that the applicant had failed to prove that his parents were ethnic Romanians. The applicant lodged an appeal on points of law with the Supreme Court of Justice.

On 6 April 2005 the Supreme Court of Justice dismissed the applicant's appeal on points of law and pointed out that according to section 68 of the Law on Documents pertaining to Civil Status (see paragraph 16 below) it was impossible to change his parents' ethnic identity to Romanian because in none of their identity papers had Romanian ethnicity been indicated.

The relevant provision of the Constitution of the Republic of Moldova reads:

(2) The State recognises and guarantees to all the citizens the right to preserve, develop and express their ethnic, cultural, linguistic and religious identity.”

Law no. 382 of 19 July 2001 on the Rights of Persons belonging to National Minorities, in so far as relevant, reads:

“Within the meaning of the present law, persons belonging to national minorities shall be all persons who live on the territory of the Republic of Moldova, who are its citizens, who have ethnic, linguistic, cultural and religious particularities which make them distinguishable from the majority of the population – the Moldovans – and who consider themselves as having a different ethnic origin.”

“Any person belonging to a national minority shall have the right to choose freely whether or not he or she belongs to that minority. Such a choice or the exercise of rights related thereto shall not put the person in a disadvantageous situation.”

Law no. 100 of 26 April 2001 on Documents pertaining to Civil Status, in so far as relevant, reads:

“The following information shall be indicated in a birth certificate:

(a) personal numeric code;

(b) the surname, given name, date and place of birth of the child;

(c) the surnames, the given names and the ethnic origin of the parents;

(d) the date of issue of the birth certificate and its number;

(e) the issuing authority of the birth certificate; ...”

“(1) Applications for modification and rectification of documents pertaining to civil status shall be lodged with the Civil Status Office for the applicant's place of residence.

(2) The Civil Status Office shall uphold an application for modification and rectification of documents pertaining to civil status if:

(a) the document pertaining to civil status contains errors, blank sections, abbreviations or spelling mistakes, or if it lacks data; or

(b) the rules concerning the creation of documents pertaining to civil status have been breached; or

(c) the applicant possesses an official document proving a change of gender.”

“It shall be impossible to rectify the ethnic identity of one's parents in their children's birth certificates, on the basis of identity papers of grandparents or other ascendants, if the parents' civil status documents do not contain information concerning the requested ethnic identity.”

Government Decision no. 333 of 18 March 2002 lists the information which must be included in the personal entry of each individual in the State Population Registry database. It provides, inter alia, that information such as blood group, colour of eyes, height, studies, ethnic identity and a specimen of signature have to be indicated in respect of every citizen. No information about an individual's religion is required.

During Romanian rule between the two World Wars no ethnic data were collected or recorded by the State and the identity papers issued by the Romanian authorities did not contain any information concerning the bearer's ethnic identity.

After the territory of Moldova became part of the Soviet Union, the Soviet authorities recorded and indicated in each individual's identity papers his or her ethnic identity. The ethnic identity was determined on the basis of the individual's parents' ethnic identities. If the parents had different ethnic identities, the individual had to opt for one of them when receiving his first identity card at the age of sixteen. There was no possibility of subsequently changing one's ethnic identity in identity papers or in the civil records. The ethnic identity of the representatives of the main ethnic group of the MSSR was normally registered as Moldovan. Only in very few cases was it registered as Romanian and it is not clear what criteria were adopted for such a distinction.

The Soviet practice of collecting and recording ethnic data was perpetuated by the Moldovan authorities after independence, with the difference that no information concerning ethnic origin was inserted in the new Moldovan identity cards. Information about ethnic identity is recorded in each individual's personal entry in the State Population Registry database (see paragraph 17 above) and does not appear on any identity papers issued to individuals or on birth, marriage, divorce or death certificates. It only appears on the birth certificates of an individual's children under “parents”. Information concerning individuals' ethnic identity also appears in criminal judgments and in various documents issued by the prosecuting authorities where the ethnic identity of the participants in criminal proceedings, such as defendants, victims and witnesses, is mentioned. It also appears in the old Soviet passports which are still valid in Moldova and which are usually used by persons with very limited financial resources.

As in the Soviet Union, an individual's ethnic identity is recorded by the Moldovan authorities on the basis of the ethnic identities of his or her parents or the identity of one parent if they differ. When applying for identity papers, each individual is requested to complete a form with various personal details such as height, colour of eyes, blood group, mother tongue, ethnic identity and others. In practice, applications are rejected if the ethnic identity indicated in the form by the applicant is not based on that of his or her parents. It is impossible under Moldovan law to change one's ethnic identity without changing the ethnic identity of one's parents and it is impossible to change the ethnic identity of one's parents on the basis of entries in the identity papers of one's grandparents (see paragraph 16 above).

The Government submitted a domestic court judgment dating from June 2006 in the case of Caragheorghi where a person had succeeded in having his ethnic identity changed from Gagauz to Greek. Neither of his parents were registered as ethnic Greeks; however, the court accepted evidence concerning one of his ancestors, born in 1822, who was a Greek from the Ottoman Empire.

According to a press release of the National Bureau of Statistics of the Republic of Moldova, according to the latest census conducted in 2004, the country had the following ethnic composition: 75.8% Moldovan, 8.4% Ukrainian, 5.9% Russian, 4.4% Gagauz, 2.2% Romanian, 1.9% Bulgarian and 0.1% other ethnic origins.

The relevant provisions of the Framework Convention for the Protection of National Minorities of 1995, which entered into force in respect of Moldova on 1 February 1998, provide as follows:

“Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.”

The relevant part of the document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE/OSCE of 1990 reads as follows:

“Persons belonging to national minorities have the right freely to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.”


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant, Mr Drago Majcen, is a Slovenian national, who was born in 1958 and lives in Murska Sobota. He is represented before the Court by Odvetniška Družba Matoz D.O.O., a law firm practising in Koper.

The Slovenian Government (“the Government”) are represented by their Agent, Mrs N. Pintar Gosenca, State Attorney.

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

The applicant has been serving his sentence in the closed section of Dob Prison from 4 October 2002.

As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), nos. 5711/10, 5719/10, 5754/10, 5803/10, 5956/10, 5958/10, 5987/10, 6091/10, 6647/10 and 6893/10, 27 September 2011.

Between 9 October 2002 and 4 October 2004 the applicant was held in cell no 3, Block 4 which measured 59.25 square metres and held fifteen inmates (3.95 square metres of personal space available to each inmate). Subsequently, he was transferred to a single cell in Block 1, which measured 7.14 square metres. On 7 December 2004 he was, due to his health problems, transferred into one of the smaller shared cells in Block 1 that serve as patients rooms, measuring approximately 32 square metres and accommodating four inmates (approximately 8 square metres of personal space available to each inmate). On 28 September 2007 the applicant was transferred into cell no 7, Block 4 which measured 58.94 square metres and held 15 inmates (3.93 square metres of personal space available to each inmate). On 17 June 2010 he was placed in cell no 37, Block 1 that served as patient room and measured approximately 15.83 square metres and accommodated 3 inmates (5.28 square metres of personal space available to each inmate). On 21 June 2010 the applicant was, upon his request, transferred back to a regular room.

From October 2002 until August 2010 the applicant was on 258 occasions treated for different health problems in the prison clinic. He has inter alia been undergoing a methadone-maintenance treatment and has been treated by the prison psychiatrist. Between 19 July 2008 and 21 July 2008 the applicant was hospitalised in the Novo mesto General Hospital in connection to a problem with appendicitis.

On 29 October 2008 the applicant was diagnosed with hepatitis C. After the infection had been diagnosed, the applicant was referred to an infectologist for the first examination but he initially refused to be examined. He was then examined on 27 March 2009 in the Novo mesto General Hospital by an infectologist who, due to seriousness of the applicant’s condition, referred him to the University Medical Centre in Ljubljana for a second opinion. The applicant refused to undergo the aforementioned examination in the University Medical Centre in Ljubljana. Between 26 March 2010 and 30 March 2010 the applicant was hospitalised in the Novo mesto General Hospital due to the deterioration of his condition. According to the reports drawn up by a prison doctor dated 13 August 2010 and 7 December 2010 the applicant had on several occasions also refused to be examined whereas the applicant’s hepatitis C has been treated according to the medical practice.

For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), Lalić and Others, cited above, as well as Mešić v. Slovenia (no. 5767/10, 22 November 2011).


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in 1959 and lives in Otwock.

On an unspecified date in January 1987 the applicant's former husband instituted civil proceedings for division of matrimonial property.

During the proceedings the Otwock District Court (Sąd Rejonowy) decided on several occasions, of its own motion, to stay the proceedings due to the fact that the plaintiff had not paid the relevant costs arising in the course of the proceedings.

On numerous occasions the applicant requested the court to resume the proceedings and to proceed speedily with the claim.

On 5 March 1998 the applicant complained to the President of the Warsaw Regional Court (Prezes Sądu Wojewódzkiego) about the delay in the proceedings.

On 8 April 2004 the proceedings were resumed.

On 20 October 2006 the Otwock District Court gave a decision ordering the plaintiff to pay a certain amount to the applicant. The applicant appealed.

On 29 October 2007 the Warsaw Regional Court (Sąd Okręgowy) partly amended the first-instance decision and dismissed the remainder of the appeal.

On 15 February 2005 the applicant lodged a complaint with the Warsaw Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).

The applicant sought a ruling that the length of the proceedings before the Otwock District Court had been excessive and an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN).

On 6 May 2005 the Warsaw Regional Court dismissed the applicant's complaint. It limited its examination of the lengthofproceedings issue to the period after the entry into force of the 2004 Act and stressed that the Act could not be applied to the protracted length of court proceedings occurring before that date. Having analysed the conduct of the District Court during the period after the entry into force of the 2004 Act (that is after 17 September 2004), the Regional Court found that there were no delays for which the District Court could be held responsible. It held that the proceedings had been conducted with due diligence and within a reasonable time.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court's decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005-VIII) and the judgment in the case of Krasuski v. Poland, (no. 61444/00, §§ 34-46, ECHR 2005-V).