CASE OF KEMAL KAHRAMAN AND ALİ KAHRAMAN v. TURKEY

Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants were born in 1967 and 1972 respectively. They are serving sentences in Eskişehir Prison, Turkey.

On 17 November 1999 the applicants, who were detained in Niğde Prison for being members of the IBDA-C (Great East Islamic Raiders-Front), allegedly incited an insurrection against the prison administration. The prison officers together with soldiers intervened in the uprising in order to bring it to an end. During the incident the applicants and the security forces both sustained injuries which were recorded in medical reports. The security forces drew up an incident report after the operation.

On 18 November 1999 the public prosecutor, prison director and prison officers drew up a damage-assessment report concerning the incident.

On 22 November 1999 the public prosecutor asked the applicants for their statements. The applicants declared that they wished to make their statements in the presence of their lawyers.

On 18 and 23 November 1999, the public prosecutor took statements from ten complainants who were prison officers and one complainant who was a soldier.

On 7 December 1999 the applicants gave their statements to the public prosecutor with their lawyer present. The prosecutor asked the applicants whether they had any arguments against the damage-assessment report. The same day, an on-site investigation was conducted inside the prison.

On 28 December 1999 the public prosecutor filed an indictment with the Niğde Criminal Court, accusing the applicants of insulting an officer and of insurrection against the prison administration.

On 3 January 2000 the Niğde Criminal Court held the first hearing and demanded the presence of the complainants and the four accused, including the applicants, at the following hearing.

At the second hearing on 21 March 2000, the Niğde Criminal Court ascertained the applicants' identities and asked them to submit their defence. The applicants maintained that they wished to make their statements in the presence of their lawyers. Accordingly, the court sent a letter to the public prosecutor's office requesting that lawyers from the Niğde Bar Association be assigned to the applicants. At the same hearing, the court took statements from the prison officers who were involved in the incident.

On 29 May 2000, two lawyers who were members of the Niğde Bar were assigned to represent the applicants. However, they did not attend any of the ensuing hearings.

On 30 May 2000 the court noted that the applicants had been sent to Bandırma Prison for administrative reasons. The court issued a rogatory letter to the Bandırma Criminal Court, requesting that the latter obtain the applicants' statements.

On 2 November 2000 the Bandırma Criminal Court, acting under powers delegated to it by the Niğde Criminal Court, pursuant to Article 226 § 4 of the Code of Criminal Procedure, took statements from the applicants. According to the minutes of the Bandırma Criminal Court, the applicants were reminded of their rights in accordance with Article 135 of the Code of Criminal Procedure, which also included the right to a lawyer. The applicants stated that they were aware of their rights and would defend themselves.

The Niğde Criminal Court held six further hearings in the absence of the applicants.

On 24 October 2000 the Niğde Criminal Court noted that the applicants' statements had been sent to it by the Bandırma Criminal Court.

On 22 November 2001 the Niğde Criminal Court, in absentia, acquitted the applicants of insulting the prison officer, but convicted them of insurrection against the prison administration. The court relied on the applicants' statements, the statements of the complainants, the on-site investigation report, the witness statements and the experts' opinions. The applicants were each sentenced to four years' imprisonment.

On 14 March 2002 the applicants appealed against the judgment to the Court of Cassation. In their appeal petitions, they stated that they were only brought before the Niğde Criminal Court once, at the beginning of the proceedings, when the court had only ascertained their identities. They further maintained that the public prosecutor's indictment had not been previously served on them, thus preventing them from submitting their defence, and that they had requested legal representation, which had not been forthcoming. They finally submitted that they were not asked to submit their final statements and the judgment was pronounced in their absence.

On 25 June 2002 the Court of Cassation upheld the judgment of the Niğde Criminal Court.

On 1 June 2005 the new Criminal Code came into force. Consequently, the Nigde Assize Court has scheduled a hearing for 20 March 2007 with a view to adjusting the applicants' sentences, pursuant to the provisions of the new Criminal Code.


Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1961 and is currently detained in Rustavi No. 1 Prison.

Under a contract of 18 January 2001, the Ministry of State Property Management (“the Ministry”) undertook to transfer to the applicant 90 % of the shares of the “Georgian State Insurance JSC” (“the company”), on condition that he, amongst other obligations, increased the company’s initial capital to 480,000 Georgian laris (EUR 218,000) within a month of signing the contract.

On 14 March and 7 May 2001, the Ministry requested an up-date of the progress made in the performance of the contractual obligations. The applicant replied by submitting documents, according to which the amount of USD 250,000 (EUR 207,000), initially placed with a Canadian bank, had been transferred to the company’s account opened with a Georgian bank.

Following the recommendation of the Georgian National Bank (a State agency), the Prosecutor General’s Office (“the PGO”) examined the applicant’s financial operations. In a decision of 26 January 2004, a senior prosecutor of the PGO, having established the authenticity of the bank records submitted by the applicant, refused, pursuant to Article 28 § 1 (a) of the Code of Criminal Procedure (“the CCP”), to institute criminal proceedings for an alleged falsification of those documents. (The applicant did not submit a copy of that decision to the Court.)

On 28 April 2004 the Prosecutor General personally opened a criminal case regarding the misappropriation of 90 % of the State’s shares by fraud and the falsification of bank documents, offences envisaged respectively by Articles 180 § 3 (b) and 362 of the Criminal Code (“the CC”). (The parties did not submit a copy of that decision.)

On 5 May 2004 the applicant was charged and taken into custody.

Initially, the applicant was placed in a “quarantine cell” at Tbilisi No. 1 Prison. According to him, the cell was filthy, dilapidated, infested with vermin, and without ventilation or natural light. Shortly afterwards, the applicant was transferred to an ordinary cell in the same prison where there were 24 beds for the 57 inmates held there. The detainees were obliged to take turns to sleep. The cell was unsanitary and the food putrid.

On 8 May 2004 the Krtsanisi-Mtatsminda District Court in Tbilisi dismissed the applicant’s request for release, remanding him in custody for three months. An oral hearing was held. In its reasoning the court stated:

“the collected evidence...discloses a reasonable suspicion that the accused has committed the incriminated offences...The evidence has been gathered in conformity with procedural norms...Due regard should be had to the fact that the applicant is charged with serious crimes...The case materials substantiate the suspicion that he might interfere with the establishment of the truth...In view of the prospect of a severe punishment, [he] may abscond...”

In his appeal of 9 May 2004, the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence. In his view, the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding. The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing, whenever summoned for interviews, and by producing all the requested evidence which, in fact, had become the basis of the criminal case file against him. As another guarantee of his reliability, the applicant referred to his “good reputation”, associated with the fact of being a designated trustee of the Canadian Chamber of Commerce.

The PGO replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth. However, no concrete arguments or factual circumstances of the particular case were put forward in this regard.

On 13 May 2004 the Tbilisi Regional Court dismissed the applicant’s appeal against the remand measure at an oral hearing. Whilst analysing various pieces of evidence, the court had regard mostly to whether or not the charges were well-founded. Concerning the grounds for detention, the court reiterated that, pursuant to Articles 151 and 159 of the CCP, the gravity of the offence justified the imposition of the measure. The appellate hearing was attended by the applicant and his advocates.

On 6 August 2004 the PGO terminated the preliminary investigation and transferred the case, along with the bill of indictment, to the trial court.

On 6 December 2004 the Vake-Saburtalo District Court in Tbilisi committed the applicant for trial under Article 417 § 1 of the CCP and confirmed the remand in custody. This decision was rendered in a standard, template form with pre-printed reasoning. The judge simply added, in the blank spaces, a brief statement of facts, the name of the accused, the definition of the impugned offence and the measure of pre-trial restraint. As regards the confirmation of the latter, the printed standard phrase read as follows:

“The measure of pre-trial restraint – detention – has been correctly chosen.”

On 11 February 2005 the Vake-Saburtalo District Court in Tbilisi started the examination of the case on the merits, and on the 17th convicted the applicant of attempted fraud. The court sentenced him to three years in prison. The charge of falsification of bank documents was dropped as timebarred. The verdict was based on a thorough assessment of the criminal case materials.

On 13 February 2006 the Tbilisi Regional Court dismissed the applicant’s appeal and upheld the verdict of 17 February 2005 with some merely textual amendments.

On 20 June 2006 the Supreme Court dismissed the applicant’s cassation appealcarefully examined by the preliminary and judicial investigations, that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law.

Amongst the complaints made by the applicant before the appellate and cassation courts, the applicant raised the same matters as those now put before the Court under Article 6 of the Convention (see paragraph 83 below).

After his conviction, the applicant was transferred to Rustavi No. 1 Prison, where the conditions were, according to him, similar to those in Tbilisi No. 1 Prison.

The applicant alleged that the following incident occurred during his detention: In the early morning of 30 January 2006, he was awoken by the noise of machine gun fire in Rustavi No. 1 Prison. As it appeared later, the police forces had conducted a special operation against criminal elements there.

The applicant complained about the conditions in Rustavi No. 1 Prison and the incident of 30 January 2006 to several national and international non-governmental organisations, but never to the prosecution or judicial authorities, according to the case file. Whilst claiming to have written a letter to the Head of Rustavi Prison, informing the latter of the poor conditions of his detention, the applicant did not produce any copy thereof, or indicate its date.

On an unspecified date, the administration of Rustavi No. 1 Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners, and he was placed in a punishment cell for three days. However, he has never complained about this to any competent national authority, considering that such a course of action would have been ineffective.

On 21 September 2006 the Ministry of Justice, the authority in charge of the penitentiary system, initiated criminal proceedings against the applicant for using a mobile telephone in Rustavi No. 1 Prison, in breach of the prison rules.

At an oral hearing on 22 September 2006 attended by the applicant, the Tbilisi City Court allowed the prosecutor’s motion and imposed upon the applicant detention on remand for two months. The court reasoned that, since the applicant was already detained following his conviction, it was impossible to apply any other measure of pre-trial restraint.

On 27 October 2006 the Tbilisi Regional Court, sitting in camera, dismissed the applicant’s appeal and upheld the order of 22 September 2006.

The applicant addressed several complaints to the PGO, requesting the termination of the allegedly unlawful proceedings. He also claimed that his procedural rights were breached during the investigation.

According to the case file, the second set of criminal proceedings against the applicant is still pending before a court of first instance.

Article 18 § 6

“...the accused cannot be held on remand for more than nine months.”

Code of Criminal Procedure, as it stood at the material time

Article 28 § 1 - “Grounds for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings”

“Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated, if:

a) The action, envisaged by the criminal law, does not exist...

m) The inquiry, investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence...”

Article 140 § 17

“Before the end of the investigation, the parties have the right to lodge an application with the court which has imposed a measure of pre-trial restraint ... requesting its annulment or modification... The parties may exercise this right only when newly discovered circumstances of a substantial character, which were not known to the judge at the time of the imposition of the pre-trial restraint measure, require that the reasonableness of that measure be reviewed.”

Article 146 § 7

“Charges shall be preferred no later than 48 hours after the arrested person is brought before an inquiry agency. If, within the following 24 hours, the court does not decide on the imposition of detention on remand or another measure of restraint, the arrested person shall be released immediately.”

Article 151 §§ 1, 2 and 3 - “The basis for and objectives of the imposition of a restraint measure”

“A restraint measure shall be applied to ensure that the accused cannot avoid the preliminary investigation and trial, that his or her further criminal activity is prevented, that he or she cannot interfere with the establishment of the truth in the given criminal case, or that the court’s verdict is executed.

The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article.

The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond, interfere with the establishment of the truth in the criminal case, or if a serious or grave crime has been committed.”

Apart from detention on remand, Article 152 § 1 envisages the possibility of using such measures of pre-trial restraint as police supervision, home arrest, bail or a personal undertaking not to leave the place of residence.

Article 159 § 3 - “Detention”

“Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [a punishment of ] more than two years in prison...”

The Code distinguished between two periods of detention on remand: detention “pending investigation”, that is whilst the competent prosecution agency investigated the case, and detention “pending trial”, whilst the case was tried in court. The person detained “pending investigation” was referred to as an “accused”. After the case was sent to a court, that person would become a “defendant” (Article 44 §§ 24 and 25). Although there was no difference in practice between two periods of detention, the calculation of the time-limits was different.

Pursuant to Article 162 §§ 2 and 3, the maximum permitted period of detention “pending investigation” was nine months. It started to run from the moment the person was taken into custody and ended the day when the prosecutor sent the case, along with the bill of indictment, to the trial court (Article 162 §§ 1 and 2).

The maximum permitted term of detention “pending trial”, calculated from the day when the prosecutor forwarded the case to the competent court until the final cassation verdict, was 48 months if three instances of jurisdiction were involved, and 30 months if the case was examined by only two instances (Article 162 §§ 8 and 9).

Article 12 § 1 classified crimes, according to the terms of imprisonment which they carried, as minor, serious or grave.

Pursuant to Article 12 § 3, a premeditated offence carrying 10 years’ imprisonment as a maximum term, or an offence committed by negligence which carried 5 years’ imprisonment as a minimum term, were considered to be serious crimes.

Article 180 § 3 (b) stated that fraud, i.e. the misappropriation of another person’s property by deception, committed with regard to objects of great value, was punishable by a prison sentence of between 5 to 10 years.

Article 362 criminalised the fabrication and use of false identity cards, templates of various formal documents, seals, etc. This offence was punishable by a prison sentence of up to 3 years.

The complainants challenged various provisions of Article 162 of the CCP, differentiating between the period of detention “pending investigation” and that “pending trial”, for their compatibility with Article 18 § 6 of the Constitution. They alleged that the unnecessary distinction between the two types of detention often resulted in situations where the overall term of detention exceeded the constitutional time-limit of nine months.

The Constitutional Court dismissed the complaint, noting that Article 18 § 6 of the Constitution solely defined the maximum permitted term of detention “pending investigation” which, pursuant to Article 162 of the CCP, ended on the day when the prosecutor sent the case to the competent court for trial:

“The Constitutional Court observes that Article 18 § 6 of the Constitution determines the term only for the detention of a suspect or accused person pending investigation, excluding the detention period of a defendant pending trial...”


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1972 and lives in Rostov-on-Don.

The applicant served in the military. By a judgment of 18 October 2002 the Military Court of the Vladikavkaz Garrison declared unlawful the refusal of the commander of military unit 66156 to pay the applicant additional monthly combat allowance, obliged the head of the finance department of the North Caucasus Military Circuit to allocate funds for such payment and recovered in the applicant’s favour the allowance arrears in the amount of 58,900 Russian roubles (RUB). By another judgment of 17 December 2002 the same court delivered a similar judgment and recovered additionally RUB 121,600 in favour of the applicant.

On 18 August 2005 the regional office of the Federal Treasury returned the writs of execution to the applicant on the ground that the military unit did not have an account there. The writs of execution were also returned by the main office of the Federal Treasury on 28 September 2005. In their letter of the same date the Federal Treasury suggested that the applicant submit the writs of execution to the bailiff service. It is not clear from the parties’ submissions whether the applicant has done so.

The judgments remain unenforced to date.


The first applicant is a British national, born in 1949 and living in Southport, England. The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976. The applicants were represented in the initial stages of the application by the first applicant and then by Dr K.S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.

The facts of the case may be summarised as follows.

The first applicant was the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family lived on the premises. In 1989 the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse (unit 2) used by a company (“Namesakes”) owned by a Mr Brennan. The company was engaged in the manufacture of wooden toys. In addition to the financial loss they suffered as a result of the closure of their business, the applicants’ health (as well as that of others living in the locality) was also badly affected by the toxic emissions.

A complaint was first made to Torbay Borough Council (“the Council”) in 1989. Subsequent complaints followed. Although the Council served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, it would appear that no steps were taken to enforce these notices. In December 1992 the company relocated its activities and the applicants returned to their premises in 1993.

The applicants insist that the paint spraying operation was illegal and that the Council has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit 2. They maintain, inter alia,

The applicants commenced litigation against Mr Brennan in January 1991. The applicants subsequently sued the Council, claiming damages for personal injury and damage to property. They contended that the Council acted beyond its discretion, ultra vires and abused its power by purporting there to be planning permission when, according to the Council’s own records, no planning permission had ever been granted to the building (unit 2) where the company’s operation took place. The actions against the company and the Council were consolidated.

On 24 January 1996 Mr Justice Collins, on the application of the Council, ordered that the applicants’ writ against the Council be struck out as showing no cause of action either under statute or at common law. Mr Justice Collins considered that the applicants’ primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance. Mr Justice Collins also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court.

According to the applicants, Mr Justice Collins, without justification, diverted the basis of their claim by proceeding on the assumption that planning permission had been given in 1988 to the company to use unit 2 for its paint spraying activity.

On 30 July 1997 the Court of Appeal, dismissed the applicants’ appeal against Mr Justice Collins’ ruling. According to the applicants, the Court of Appeal accepted the false statement of the Council that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the Council’s assertion.

On 13 January 1998 the House of Lords refused the applicants leave to appeal.

The first applicant subsequently complained to the Council that a pottery business which had taken over occupancy of one of the units (unit 1) was emitting smells and noises and that it did not benefit from planning permission. He contended that planning permission had never been granted in respect of either unit 1 or unit 2.

At the meeting held on 10 November 1997 the Council’s planning committee (“the committee”) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business. According to the first applicant, the committee did not answer his challenge to the very existence of planning permission for the use of units 1 and 2. The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr Brennan’s company and the true state of the planning record.

The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a Council official who had agreed to reconsider the local authority’s decision. The Council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance.

On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the Council had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission.

The first applicant stresses that, in the ensuing judicial review proceedings, the Council argued that planning permission had been granted to unit 1. However, this was in contradiction to the stance the Council had taken in the earlier civil proceedings in which it contended that unit 2 benefited from planning permission. The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant. The first applicant draws attention to his view that Council officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings.

On 25 June 1998 Mr Justice Moses refused the first applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the Council notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the first applicant’s application for leave to apply for judicial review.

On appeal, Lord Justice Kennedy conceded that the scope of Mr Brennan’s application for planning permission and the extent of the permission granted was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself:

“... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.”

Lord Justice Kennedy further observed that, even if ten years ago the use made of the premises was unauthorised, it was now too late for the local authority to institute enforcement action. Lords Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning. In a judgment dated 28 October 1998 the Court of Appeal dismissed the applicant’s renewed application.

The first applicant points out that Lord Justice Potter had sat in the Court of Appeal in the appeal against the ruling of Mr Justice Collins and failed to draw the attention of his colleagues hearing the appeal on the applicant’s judicial review application to the fact that the Council had earlier argued that planning only related to unit 2, whereas in the judicial proceedings it was now claiming that it only covered unit 1.

Meanwhile, the applicants’ civil claim in the High Court against Mr Brennan had been stayed pending the outcome of the proceedings against the Council. In February 2002 Mr Brennan applied for an order that directions be given for the future conduct of the applicants’ claim.

On 27 February 2002 Deputy Master Chisholm ordered that the stay be lifted and that the case be transferred from the Royal Courts of Justice in London to Exeter District Registry. Deputy Master Chisholm noted in this connection that the proceedings against the Council had come to an end and, moreover, that the European Court of Human Rights had on 5 July 2001 declared inadmissible an application lodged by the applicants (no. 41671/98).

The applicants appealed against the Order. The applicants’ appeal was heard by Mr Justice Jackson on 16 July 2002. The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application (no. 75341/01) with the Court in Strasbourg contesting the Court’s inadmissibility decision of 5 July 2001. Mr Justice Jackson dismissed the applicants’ appeal on this point. Having examined the Court’s inadmissibility decision, he considered that the applicants’ fresh application had no prospects of success. As to the applicants’ objection to the transfer of the civil action from London to Exeter, the judge concluded that Deputy Master Chisholm has reached his decision in the proper exercise of his discretion on case management issues.

COMPLAINTS

The applicants maintain that the Court’s inadmissibility decision of 5 July 2001 (application no. 41671/98) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed. They contend that the Court in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to Mr Brennan by the Council in 1988 and at no stage addressed themselves to the true scope of the permission actually given. The applicants submit that the Court should establish what was actually granted by the Council under planning application no. 88. 1887 and to reach its decision with reference to the documentation that they have supplied. They maintain that the documentation clearly shows that neither unit 1 nor unit 2 was covered by planning permission and that the only premises addressed in planning application no. 88.1887 was a storage building.

The applicants assert that the facts of their case disclose breaches of Articles 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1 thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the Council has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given.

Furthermore, the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the Council and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity. They rely on Articles 6, 13 and 17 of the Convention.

The applicants submit that they have been discriminated against on account of, among other things, their Chinese origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant. They rely on Article 14 in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1.

With reference to the pending civil action against Mr Brennan, the applicants stress that the outcome of that action is closely linked to the question whether Mr Brennan can rely on the grant by the Council of planning permission to carry on his paint spraying operation. In their submission, if the domestic courts were to accept Mr Brennan’s defence, despite clear evidence to the effect that Council officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the Council by manipulating and concealing the true nature of the planning record, there would a breach of their rights under Articles 6, 8, 13 and 17 of the Convention. They maintain that the Council was biased n favour of Mr Brennan.

The applicants contend, among other things, that Mr Justice Jackson in his judgment of 16 July 2002 did not act independently or impartially since he did not query the documents allegedly showing that the Council had given Mr Brennan planning permission, and this despite evidence confirming that Council officials had acknowledged that this was not the case. They invoke Articles 6 and 13 of the Convention.

The applicants further contend under Article 6 that the judge was wrong to rely on certain statements in the Court’s inadmissibility decision of 5 July 2001, misconstrued the essence of their claim against the Council and made impermissible use of domestic case law.

The applicants insist that the facts relied on disclose a breach of their rights under Article 8 of the Convention since the domestic courts treated their claim as a claim based on damage caused by a legal activity, whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity.

The applicants further allege a violation of Article 14 of the Convention, including in conjunction with Article 6. They maintain that they have been discriminated against on account of their Chinese origin and that by denying them their rights to a fair hearing the Court of Appeal failed to treat them on an equal footing to other citizens.

The applicants argue that the facts of the case give rise to a breach of Article 17 of the Convention.

With reference to Article 1 of Protocol No. 1 the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity, whereas that activity was illegal and interfered with their property rights.

The first applicant lodged the above application on 2 July 2001. In the proceedings before the Court, the applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.

On 13 January 1998 the Appeal Committee of the House of Lords refused the applicants’ petition for leave to appeal. The minutes of the proceedings recorded that the Council could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it.

The first applicant’s solicitor at the time received a notification dated 30 October 1998 to attend a taxation hearing regarding the costs incurred by the Council in respect of the applicants’ petition for leave to appeal to the House of the Lords against the decision of the Court of Appeal in the civil proceedings against the Council referred to in application no.75341/01.

A taxation hearing was held on 19 January 1999 before the Judicial Taxing Officer of the House of Lords. By a decision of 22 April 1999, the Judicial Taxing Officer of the House of Lords allowed the Council’s bill of costs in full (approximately GBP 2,000).

The first applicant protested about the decision, including through his MP, but without success. The first applicant maintained that the Council had not been invited to make submissions on the above-mentioned petition (and which was in effect ex parte), that his solicitor had informed him that he had never seen any such submissions, that the Council had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers.

The first applicant sought to challenge this decision by way of judicial review. By letter dated 13 February 2001 the first applicant was informed by the High Court’s Administrative Office that the High Court had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals.

COMPLAINTS

The first applicant complains, inter alia, that the Taxing Officer abused his discretion, acted in breach of procedural rules, was biased against him and overlooked the fact that the local authority itself had not complied with the House of Lords own practice directions on the matter of costs. He submits that the Taxing Officer ordered him to pay the Council’s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the Council’s comments on his petition before it had been considered by the Appeal Committee of the House of Lords.

The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer, had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant Council to which it was not entitled.

The first applicant relies on Articles 6, 13 and 17 of the Convention.

The application was lodged on 28 November 2002. In the proceedings before the Court, the first applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England.

The first applicant joined the Federation of Small Businesses (“FSB”) in 1991. He paid his membership fee, and thereafter renewed his membership annually. His decision to become a member was influenced by the FSB’s undertaking in its promotional literature to pay legal and accountancy fees up to GBP 35,000 in dealing with an in-depth Inland Revenue investigation.

The Inland Revenue carried out an in-depth investigation of the first applicant in 1994, after he had sought advice from the tax authorities about his tax situation. In 1996 the Inland Revenue cleared the first applicant of any suspicion of fraud. The first applicant sought to be indemnified for the accountants’/consultants’ costs he had incurred in defending himself during the investigation. According to the first applicant, the FSB’s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred, only to renege later on its promise. The first applicant declined the insurance company’s proposal to submit the full claim to arbitration. Dissatisfied with the outcome of his dealings with the insurer, on 11 July 2000 the first applicant sued the FSB for breach of contract, relying on the FSB’s unqualified undertaking to cover its members’ costs.

On 6 October 2000 District Judge Meredith ordered that the first applicant’s claim be struck out as disclosing no cause of action against the FSB. The judge accepted FSB’s defence that the first applicant’s claim lay against the insurance company which underwrote the undertaking and that FSB’s obligation was limited to introducing him to an insurer.

On appeal, His Honour Judge Overend, on 12 January 2001, ordered that the first applicant’s claim be reinstated, being satisfied, firstly, that there was no contractual relationship between the first applicant and the insurance company and, secondly, that the first applicant’s only avenue of redress was to sue the FSB with which he had concluded a contract. Further directions for trial of the case were to be given by a District Judge.

On 18 April 2001 District Judge Meredith ordered that the question whether the FSB was liable to the first applicant and, if so, the scope of its liability, be determined as a preliminary issue.

On 29 June 2001 His Honour Judge Rucker ordered that all matters relating to the case were to be tried in the current trial window. The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately.

On 25 September 2001 Mr Recorder Moxon-Browne proceeded to try the issue of the FSB’s liability to the first applicant. Following a hearing, the judge found on the evidence, and with reference to domestic case-law (the House of Lords’ decision in Swain v. the Law Society), that the FSB had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in-depth tax investigation. The first applicant’s claim to be indemnified therefore lay against the insurer, and not with the FSB. The judge however expressed the view that the FSB could have clarified better in its advertising what the scope of its obligation was in this area. The first applicant appealed.

On 4 October 2002, the Court of Appeal dismissed the first applicant’s appeal following a hearing. Having reviewed the documents relied on by the applicant, Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the FSB under which the FSB would meet without qualification all of the expenses incurred by the first applicant in the course of an in-depth Inland Revenue investigation. In his opinion, the words used by the FSB were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity. Furthermore, the provision to the first applicant of insurance documentation at the time he joined the FSB indicated that his membership entailed his access to insurance services.

Complaints

The first applicant maintains that the domestic courts distorted the facts of the case, reached conclusions in the absence of evidence, erred on matters of law, diverted the basis of his claim, abused their powers and did not act independently and impartially. He refers, among other things, to the improper manner in which Mr Recorder Moxon-Browne and the Court of Appeal dealt with the issues before them and to the fact that the Recorder took it upon himself to decide who was the correct defendant to the proceedings, even though this issue had already been settled by Judge Overend. The first applicant relies on Article 6 of the Convention to condemn these and other breaches of his right to a fair hearing which he has identified.

Under Article 13 of the Convention, the first applicant complains that the Court of Appeal reached its decision by adducing a document which did not exist, thereby abusing its power and acting without authority by assuming there was such a document.

The first applicant further relies on Article 14 of the Convention. He maintains, among other things, that he was discriminated against in his access to justice on account of his status as a litigant in person.

The first applicant finally maintains that the abuse of power on the part of the Court of Appeal amounts to a breach of Article 17 of the Convention.


CASE OF STRAISTEANU AND OTHERS v. MOLDOVA

Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial

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

The first three applicants, Mr Gheorghe Straisteanu, Ms Natalia Straisteanu and Ms Daniela Straisteanu, are a family of Moldovan nationals who were born in 1954, 1957 and 1986 respectively. The fourth applicant, Codrana-Lux S.R.L., is a limited liability company incorporated in Moldova. Sixty percent of its stock belongs to the first three applicants’ family.

The first applicant is a well-known businessman and a former member of the Moldovan Parliament, between 1998 and 2001. He was, inter alia, the founder of the first Moldovan private television company and owned a chain of petrol stations. After the Communist party won the general election in 2001 he retired from politics and had to wind up most of his businesses, including the television station and the petrol business.

In May 2001 the fourth applicant bought a plot of land measuring 14.63 hectares from the Onesti Local Council. The land was later sold by the fourth applicant to the first two applicants. Subsequently, the first applicant donated a part of the land to the third applicant and an artificial lake was built on the family’s property.

Also in May 2001, the fourth applicant concluded a contract of lease with the Onesti Local Council for a period of ten years concerning a natural lake measuring 5.63 hectares adjacent to the property which it had bought.

The first three applicants settled on the above property and developed it with a view to using it for tourism and fishing. According to them, in 2005 Government officials started to exercise pressure on the first applicant to induce him to give up the property.

On 20 July 2005 the first applicant was arrested in Chişinău together with his driver. At the police station, he was informed that he and his driver were being accused of carrying out a series of car thefts over the past year in Chişinău. It would appear that several criminal complaints concerning car thefts were joined in a single procedure, while others were joined later (see paragraph 14 below).

On 22 July 2005 the Centru District Court issued a detention warrant in the first applicant’s name for a period of ten days. The grounds for detention were that he was suspected of committing a serious offence punishable by more than two years’ imprisonment, that the criminal case was complex, and that he might abscond, hinder the investigation and the finding of the truth. An appeal by the applicant was dismissed and his detention was subsequently extended on the same grounds.

On 18 August 2005 Judge A.B. from the same court ordered the applicant’s release. The grounds for release were that there were no reasons to believe that the applicant would abscond or hinder in any way the investigation. However, the prosecuting authorities refused to comply with the order and continued to hold the applicant in detention. They applied a second time for an extension of the detention but Judge A. B. refused again on 19 August 2005 and found that the prosecutor had failed to comply with his previous decision and that therefore the applicant’s detention had been unlawful. The prosecutor refused again to comply with the order of release and ordered his further detention on account of charges of theft from a Volkswagen car, an episode which had not been joined to the main criminal case at that time. On the same date the prosecutor applied to another court, the Râşcani District Court, for a detention warrant. The charges against the first applicant were the same as before and no new reasons for detention were adduced. On 22 August 2005 that court upheld the application and ordered the continued detention of the applicant. It did not give any reasons for detention except that the prosecutor’s application related to another criminal case.

On 25 July 2005 the Ministry of Internal Affairs issued a press release which stated that the first applicant was a member of a criminal gang which was robbing car drivers in Chişinău. The major Moldovan media reported on the event the same day.

On 24 August 2005 the episode concerning the theft from a Volkswagen car was joined to the main criminal proceedings against the applicant.

On 25 August 2005 the applicant appealed against the detention warrant of 22 August 2005.

On 29 August 2005 the criminal case in the applicant’s case was remitted to a court for examination and from that date on the applicant was detained without a detention warrant.

On the same date the Chişinău Court of Appeal discontinued the appeal proceedings against the detention warrant of 22 August 2005 on the ground that the criminal case had been remitted to a court and that therefore no detention warrant was now needed.

His habeas corpus applications were dismissed and he remained in detention until 17 November 2005, when a judge ordered his release.

During the first applicant’s detention he was held in the detention facility of the General Police Station (Comisariatul General de Poliţie). According to him, the cells in which he was detained were overcrowded, dark, damp, dirty and hot. There was no natural light, but instead there was a very weak light bulb which was switched on all the time. The ventilation was not working properly and the inmates were allowed to smoke in the cell. The cell was infested with vermin and rats and the inmates were allowed to take showers only once every twenty days with cold water. The cells measured approximately ten or eleven square metres and were occupied by at least eight people at all times. Because of the conditions of his detention the applicant contracted influenza.

On 7 September 2005 Amnesty International organised action in support of the first applicant on its web page, stating, inter alia, the following:

“Amnesty International is concerned that Gheorghe Straisteanu is being charged on the basis of evidence which has been extracted under torture. Amnesty International has information that a second individual gave evidence after being subjected to torture by investigating officers. However, he reportedly fears that he will be subjected to further ill-treatment if his name is mentioned. The organization is also concerned that Georghe Straisteanu is being detained arbitrarily.

On 18 August 2005 the central district court of Chişinău ordered the release of Gheorghe Straisteanu on bail, but police officers immediately re-detained him in the court room and took him back to the temporary detention facility despite the court decision. On 19 August, after his lawyer appealed against this arbitrary detention, the court declared that his detention was illegal. However, police officers again defied the court order and detained him in the court room. On 22 August Gheorghe Straisteanu was sentenced to ten days’ imprisonment by the court of Riscani district in Chişinău. The ten day period was due to expire on 31 August, but the investigating authorities have declared that the investigation is closed and that the case has now been transferred to the court. This effectively prolongs Gheorghe Straisteanu’s detention until the court hearing has been held.

Furthermore, Amnesty International is concerned about the conditions in which Gheorghe Straisteanu is being held at the temporary detention facility on Tighina Street. He is currently being held in a cell with ten to 12 other detainees. The only washing facility is a tap and a basin in the cell, and conditions are damp and badly ventilated. Georghe Straisteanu has contracted influenza since he has been in detention and his family report that he has difficulty breathing. He has not been given access to a doctor and he has only been able to receive the medicine that his daughter passed to him when she saw him in court....

Please send appeals to arrive as quickly as possible [to the Prosecutor General’s Office, the Ministry of Internal affairs and/or to Moldovan Embassies abroad]...:

· expressing concern for the health of Gheorghe Straisteanu and asking for assurances that he will be given access to the medical care he requires in conformity with the UN Standard Minimum Rules for the Treatment of Prisoners;

· expressing concern at allegations that some of the evidence that has been used to convict Gheorghe Straisteanu has been extracted from another individual under torture;

· urging the authorities not to use any evidence extracted under torture in this case and reminding the authorities that as a party to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment they must ensure that any statement which has been made as result of torture is not used as evidence in criminal proceedings;

· expressing further concern at allegations that the police did not respect court decisions regarding the illegal detention of Gheorghe Straisteanu and that he was arbitrarily detained by police twice in defiance of court orders;

· urging an investigation into the allegations of arbitrary detention and asking for his release if the allegations are found to be correct.”

On an unspecified date in October 2005 the President of Moldova, Mr V. Voronin, held a meeting with high ranking officials, among whom was the Prosecutor General, the head of the Anti-Corruption Department, the head of the Cadastral Authority and the prefect of the county where the applicants’ land was situated. During the meeting he expressed great dissatisfaction with the fact that in spite of his clear indications to numerous State bodies, the applicants’ property was still in their possession and had not been returned to the State and a monastery. He gave them a deadline of 17 November 2005 to solve the problem, threatened them with dismissal and left the room, slamming the door.

A video of this event was broadcast by a television channel on 4 April 2006 in a programme entitled ‘The President’s working day’ which reported on the busy schedule of the President. A copy of it was sent to the Court by the applicant.

According to the applicants, after the first applicant’s arrest their family started to experience harassment from law enforcement bodies such as the Department for the Fight against Organised Crime and Corruption, the police and the Prosecutor’s Office, who intimidated and pressured them to give up their property. While in detention the first applicant was approached by police officers, who proposed that he sell the property in exchange for his release. The second applicant was visited on numerous occasions by people claiming to be representatives of the above bodies. They requested her family to leave the property, failing which she would not see her husband again. The third applicant was contacted on numerous occasions by police officers and investigators in charge of her father’s case and ordered to sell the property.

On 25 August 2006 the second applicant lodged a complaint with the Prosecutor General’s Office complaining about the actions of two police officers who had entered her property without any legal basis and ordered her, also in the absence of any legal basis, to take down a billboard at the entrance to the property.

On 4 October 2006 the second applicant received a letter from the Prosecutor General’s Office, in which she was informed that the matters described by her had proved to be partially true; however, there were no sufficient reasons to justify the prosecutor office’s intervention.

On 26 October 2005 the Prosecutor General filed an action with the Economic Court asking for the annulment of the contract of lease for 5.63 hectares of land concluded between the Onesti Local Council and the fourth applicant in May 2001, on the ground that the Local Council had failed to organise an auction.

On an unspecified date the President of the Superior Council of Magistrates and the President of the Supreme Court of Justice, Ms V.S., inquired with the Vice President of the Economic Court, Judge M.M., about the above case.

In a letter of 30 October 2005 Judge M.M. wrote to Ms V.S. stating, inter alia, that the case was scheduled to be examined on 8 November 2005 and that she would be dealing with it. It appears that the hearing of 8 November was adjourned.

On 14 November 2005 the fourth applicant was sent a registered letter informing it that the hearing in the case was scheduled for 17 November 2005. It appears that the fourth applicant was no longer at the address to which the summons was sent and therefore did not receive the summons.

On 17 November 2005 Judge M.M. examined the case in the absence of the fourth applicant and upheld the Prosecutor General’s action relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. It found that the Onesti Municipal Council had contravened the law by failing to organise a public auction for the lease of the property.

On an unspecified date in January 2006 the fourth applicant appealed against the above judgment and argued, inter alia, that it had not been summoned and that it did not even know about the prosecutor’s application before 25 November 2005. According to the law in force at the time of the conclusion of the lease, there was no obligation to hold an auction. That obligation referred only to sale of land by local authorities, but not to leases. In any event, the action was time-barred.

On 19 January 2006 a panel of the Supreme Court of Justice presided over by Judge I.M. dismissed the applicant’s appeal and argued, inter alia, that it had been summoned at the address which appeared in the database of the Registration Chamber, and that therefore the applicant had been legally summoned. The court also found that the local council had been under an obligation to organise an auction before renting out the land in question. The Supreme Court did not refer to the applicants’ objection concerning the Statute of Limitations.

On an unspecified date the fourth applicant lodged an action with the Economic Court claiming compensation for the investments it had made in respect of the leased property. It claimed 5,034,304 Moldovan lei (MDL).

On 20 February 2006 the Economic Court refused to examine the application because the fourth applicant had not paid the court fees of three per cent of the amount sought.

In March and April 2006 the fourth applicant paid a part of the court fees and applied again to the court. It argued that it did not have any more money because all its assets and bank accounts had been frozen by the Prosecutor’s Office.

On 20 June 2006 the Economic Court refused again to examine the action on the same grounds. The fourth applicant’s appeal was dismissed.

On 10 November 2005 the Prosecutor General brought an action with the Economic Court of Moldova seeking the annulment of the purchase of the plot of land of 14.63 hectares by the fourth applicant from the Onesti Local Council in May 2001 and of all the subsequent contracts by which the property had been transmitted to the first, second and third applicants. The Prosecutor General argued that the Onesti Local Council had acted ultra vires and had committed numerous irregularities in organising the auction, establishing the price of the property and selling the property.

The applicants opposed all the Prosecutor General’s submissions. Their main arguments were that the Prosecutor General’s action was time-barred, that they had acquired the property in good faith and that the property could not be expropriated without compensation. At the same time the second and third applicants lodged a counter action in which they submitted that if the Prosecutor General’s action was upheld they should be entitled to compensation for the investments they had made in the development of the property in an amount of approximately 216,000 euros (EUR) and EUR 768,000 respectively.

On 11 May 2006 the Economic Court requested the applicants to pay court fees in the amount of three percent of the claimed amounts. The applicants appealed and argued that all their accounts had been seized by the Prosecutor’s Office, that they were unemployed and that they could not pay the court fees. They asked, on the basis of the law on court fees, to be allowed to pay the fees after the adoption of a judgment in the case.

On 29 June 2006 a panel of the Supreme Court of Justice presided by Judge I.M. dismissed the appeal.

On 2 August 2006 the applicants’ counter action was dismissed on the ground of their failure to pay court fees. The applicants appealed against this decision. However, their appeal was dismissed on 21 September 2006 by a panel of the Supreme Court of Justice presided over by Judge I.M.

On 18 December 2006 Judge B.B. from the Economic Court upheld the action lodged by the Prosecutor General, relying on Article 50 of the old Civil Code, in force at the time of the conclusion of the lease contract. Judge B.B. found that the Onesti Local Council had breached the rules concerning the conduct of public auctions, namely that it had failed to observe the rules concerning the advertising of the auction, the composition of the auction commission and the drafting of the auction record. The court did not refer to the applicant’s objection concerning the Statute of Limitations and considered all the prosecutor’s arguments well-founded. It ordered that the parties be put in the same position as they had been prior to the conclusion of the contract.

The applicants appealed and argued, inter alia, that they had been punished for errors of the local authorities which were not imputable to them, that the court was not independent and impartial, that the action was time-barred and that the actions against them had been orchestrated by President Voronin, submitting a copy of the video in which the President was shown instructing State officials to take away their property.

On 15 February 2007 the Supreme Court of Justice dismissed the applicants’ appeal. It held that according to the Code of Civil Procedure claims filed in the State’s interest were exempt from the requirement to observe time-limits.

On 3 August 2006 a bailiff came to the applicants’ property, accompanied by the mayor of Tiganesti village, in order to enforce one of the civil judgments concerning the applicants’ property. A quarrel took place between the first applicant and the mayor and two weeks later the latter lodged a complaint with the Prosecutor’s Office, complaining that the first applicant had made death threats against him. In particular, he submitted that during the quarrel the first applicant had said that he would feed him (the mayor) to the fishes.

On 21 August 2006 the applicant was arrested and placed in detention. On 23 August 2006 the Straseni District Court issued an order for him to be detained for ten days. That was extended on numerous occasions and the first applicant’s appeals and habeas corpus requests rejected.

He was detained in the detention centre of the Straseni Police Station until 24 September 2006 and then in Chişinău no. 13 prison. According to the applicant, the conditions of detention in both detention facilities amounted to inhuman and degrading treatment.

The applicant’s detention under the new charges continued until 28 November 2006, when he was placed under house arrest.

On an unspecified date in 2007 the first applicant initiated civil proceedings against the Government claiming compensation for poor conditions of detention in 2005 and in 2006 and for detention contrary to Article 5 of the Convention. He relied, inter alia, on the Court’s findings in respect of conditions of detention in Ostrovar v. Moldova (no. 35207/03, 13 September 2005), Sarban v. Moldova (no. 3456/05, 4 October 2005), and Holomiov v. Moldova (no. 30649/05, 7 November 2006) in which the applicants had been detained in the same detention facilities.

On 27 June 2007 the Centru District Court dismissed the applicant’s action, upholding the Government’s position and finding that the conditions of detention on both occasions were acceptable. The court accepted several of the applicant’s submissions, such as that his cell window did not have glass for several days, that a person with scabies was placed in his cell on one occasion, that there was no linen or mattresses in the cell, and that there was no sewerage in one of the detention facilities. Nevertheless, it considered that these shortcomings were not sufficient for the application to be upheld, because the applicant did not have to share a bed with the ill prisoner, the latter had been receiving treatment for five days and at the time of his placement in the cell he was no longer contagious. Moreover, the window cell was repaired after only four days and in any event the temperatures at the end of September were usually moderate. In addition, prisoners were allowed to bring their own mattresses and linen. In so far as the complaint under Article 5 was concerned, the court found that there were no civil remedies against the alleged breaches under Moldovan law. This judgment was confirmed by the Court of Appeal on 3 October 2007 and by the Supreme Court of Justice on 7 May 2008.

On 18 May 2008 the applicant lodged another action with the Rascani District Court, again claiming compensation for his allegedly unlawful detention between August and November 2005. It appears that his action has not yet been determined.

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

B. Establishments visited

... - EDP of Chişinău Police Inspectorate (Follow-up visit)

... b. remand centres (EDPs)

In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity.

Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ...

One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty.

Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit.

In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m².

The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ...

...Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet.

The CPT also recommends that steps be taken to:

- reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level;

- supply persons in custody with clean mattresses and clean blankets;

- authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter.

In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.”

Conditions of detention.

a. Institutions of the Ministry of Internal Affairs

Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs.

The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented.

Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives...

As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions.

In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.”

II. Institutions of the Ministry of Internal Affairs

In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation.”

Article 25 of the Constitution of the Republic of Moldova, in so far as relevant, states as follows:

“(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of thirty days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.”

The relevant part of the Code of Criminal Procedure reads as follows:

(2) The application for a detention warrant... shall be examined without delay by the investigating judge... at the place of the conduct of the criminal investigation, at the place of arrest or at the place of residence of the detainee’s representative.

(5) A repeated application for a detention warrant... in respect of the same person and in the same proceedings, after the dismissal of a previous application, shall be possible only if new reasons for detention have appeared.

The relevant provisions of the Civil Code, in force at the relevant time, provide:

The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations.

The competent court ... shall apply the limitation period whether or not the parties request such application.

Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim.

If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected.

The limitation period does not apply:

(2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”.

The relevant provisions of the new Civil Code, in force after 12 June 2003, read as follows:

“(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has extinguished or in the process of execution.”

In a judgment of 20 April 2005 (case nr. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff’s contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that, therefore, the provisions of the old Civil Code were applicable.


No violation of Art. 6;Not necessary to examine Art. 13

On 9 November 1984 the applicant was convicted at Sheffield Crown Court, inter alia, of one count of robbery and two counts of burglary. The jury’s decision was by a majority verdict of ten to two. He received a sentence of imprisonment of ten years for the robbery, and two sentences of eight years each for the burglary offences. All three sentences were to be served concurrently.

The evidence against the applicant consisted of detailed oral admissions that he had allegedly made to the police concerning his involvement in the three offences. According to the police he was questioned on three separate occasions and contemporaneous notes were taken of his statements. However, he had declined to sign them.

His defence during the trial was to maintain that these statements had been concocted by the police. He protested his innocence pointing out that he had not denied his numerous misdeeds in the past. The only witnesses called by the defence during the trial were the two police officers who had interviewed him.

Leave to appeal against the sentence but not the conviction was granted by a single judge of the Court of Appeal (Criminal Division) on 5 February 1985. On 21 May 1985 the substantive appeal against sentence was dismissed by the full court.

The victim of the robbery (Miss Sizer) which took place on 14 April 1984 was a lady of 82 years of age who was awakened from her sleep to find a man standing over her. Before having her hands tied behind her back and being blindfolded she was able to take a quick glance at him. She remained tied up until she was freed the next morning. In a statement to the police she gave a description of the man which corresponded with the applicant and stated that she thought she would recognise him again. She was not called as a witness during the trial but her written statement was read to the jury.

The two counts of burglary related to separate incidents which occurred on 19 April and 10 June 1984 also involving the home of an elderly woman. On the latter occasion the police arrested the applicant’s co-defendant in the vicinity. It was his statement to the police which led to the applicant’s arrest.

On 16 May 1985, the applicant petitioned the Secretary of State for the Home Department with complaints against police officers who had investigated his case and given evidence at his trial. An independent police investigation was ordered in the course of which certain facts came to the applicant’s attention (see paragraphs 11-13 below). On 3 December 1985, the applicant applied for leave to appeal against conviction out of time. The police report (the Carmichael report), dated 5 December 1985, was delivered to the Police Complaints Authority which directed it to the Director of Public Prosecutions. The report was requested by the applicant’s advisers but its disclosure was refused on the grounds of public interest immunity.

In February 1986, the Director of Public Prosecutions decided that there was insufficient evidence to support criminal charges against the police officers, but recommended that disciplinary charges be brought against three police officers. At the disciplinary hearing, on 13 to 15 June 1988, the tribunal decided that there was no case to answer and dismissed the charges.

On 21 March 1986, the Secretary of State for the Home Department referred the applicant’s case to the Court of Appeal (Criminal Division) under section 17 (1)(a) of the Criminal Appeal Act 1968 ("the 1968 Act"; see paragraphs 19 and 20 below). The reference was heard on 18 July 1986 and judgment delivered on the same date.

The applicant submitted to the Court of Appeal that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case, in particular, that certain information had been withheld by the police. At the trial one of the police witnesses had stated under cross-examination that no fingerprints were found at the scene of the crime. In fact two fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house. The applicant had not been informed of this by the prosecution before his trial.

It was argued by the applicant that the police officer had told lies and that his veracity as regards the admission statements was thus called into question.

The Court of Appeal rejected this submission as follows:

"We do not accept that interpretation of Detective Sergeant Hoyland’s evidence. We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the two alleged burglars were discovered at the scene: neither the fingerprint of Rose nor the fingerprint of Edwards, the present appellant.

We do not think, had the matter been carried further, it would have been demonstrated that Hoyland was a person who to that extent could not be believed on his own."

A further shortcoming complained of by the applicant related to the fact that the police had shown two volumes of photographs of possible burglars (including a photograph of the applicant) to the elderly victim of the robbery who said that she had caught a fleeting glimpse of the burglar. Her statement, read to the jury, said that she thought she would be able to recognise her assailant. Yet she did not pick out the applicant from the photographs.

This fact was not, however, mentioned by one of the police witnesses who had made a written statement which was read out to the jury and had not been indicated to the applicant before or during his trial. Counsel for the applicant submitted to the Court of Appeal that this omission cast such doubt on the evidence of the prosecution that it might have led the jury to believe that the confession statements had indeed been "manufactured" by the police as the applicant alleged.

The Court of Appeal also rejected this argument:

"The fact that Miss Sizer had a fleeting glimpse of her assailant, and the fact that such identification as she did make was largely directed to other matters of identification rather than his features, leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable Esdon’s activities with regard to that."

The Court of Appeal examined other impugned shortcomings which it did not consider to cast any doubt on the verdict. It was of the opinion that, even if these matters had been investigated, it would have made no difference to the outcome.

The court concluded as follows:

"It is clear that there was some slipshod police work in the present case, no doubt because they took the view that here was a man who had admitted these crimes fully, and consequently there was very little need for them to indulge in a further verification of whether what he said was true. Although this is a matter which perhaps casts the police in a somewhat lazy or idle light, we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions. Consequently, treating this matter as we have to according to section 17 of the Act, we think this appeal fails and must be dismissed."

Counsel for the applicant did not request the Court of Appeal to exercise its discretionary power to rehear evidence under section 23 of the 1968 Act (see paragraph 23 below) with a view, for example, to cross-examining the police officers who gave evidence at the applicant’s trial. He considered that there was little prospect of such a request being granted. Nor did he request the court to order the production of the Carmichael report (see paragraph 9 above).

The applicant took advice concerning the possibility of appealing to the House of Lords but was informed, in an opinion of counsel dated 8 September 1986, that there were no grounds on which an appeal could successfully be pursued before the House of Lords.

He petitioned the Secretary of State for the Home Department on 3 June 1987 without success. He is currently serving a sentence of two years’ imprisonment following his conviction on 26 March 1992 at Sheffield Crown Court on three counts of burglary.

Under the Attorney General’s Guidelines issued in December 1981, the prosecution is obliged (subject to specified discretionary exceptions) to disclose to the defence "unused material", which includes all witness statements not enclosed in the bundle of statements served on the defence at the stage of committal of the case by the Magistrates’ Court to the Crown Court.

The prosecution is also under a duty to inform the defence of any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial (R. v. Clarke [1930] 22 Criminal Appeal Reports 58). Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again, and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him, it is required to inform the defence of that fact.

For the purpose, among others, of ensuring compliance with this duty, the Court of Appeal has stated that all the statements which have been taken by the police should be put before counsel for the Crown, and that it should not be left to the police to decide which statements he is to receive (R. v. Fellowes, 12 July 1985).

A jury’s verdict may be either unanimous or by a majority. It must be unanimous unless the trial judge, in accordance with section 17 of the Juries Act 1974, has directed, after at least two hours of unsuccessful jury deliberations, that a majority verdict will be accepted. A majority verdict will be effective if, where there are not less than eleven jurors, ten of them agree on the verdict, or, where there are ten jurors, nine of them agree. If the jury do not agree on either a unanimous or majority verdict, they may, at the discretion of the trial judge, be discharged, but such a discharge does not amount to acquittal and the accused may be tried again by a second jury. In the event of a second jury disagreeing, it is common practice for the prosecution formally to offer no evidence.

Section 17(1)(a) of the 1968 Act provides as follows:

"Where a person has been convicted on indictment, or been tried on indictment ... the Secretary of State may, if he thinks fit, at any time either:

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court by that person;

The scope of the Court of Appeal’s powers is set out in section 2 of the 1968 Act which provides:

"(1) Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think:

(a) that the conviction should be set aside on the unsafe or unsatisfactory;

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or

(c) that there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.

(2) In the case of an appeal against conviction the Court shall, if they allow the appeal, quash the conviction.

(3) An order of the Court of Appeal quashing a conviction shall, except when under section 7 below the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal."

Section 7 of the 1968 Act enabled the Court of Appeal to order a retrial only where the conviction was quashed by reason of evidence received or available to be received under section 23 of the Act. In relation to appeals subsequent to 31 July 1989, section 7 has been amended to confer on the Court of Appeal a broader basis to order a retrial.

Section 23 of the 1968 Act provides, inter alia, as follows:

"(1) For purposes of this part of the Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice -

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and

(c) ...

(2) Without prejudice to subsection (1) above, where evidence is tendered to the Court of Appeal thereunder the Court shall, unless they are satisfied that the evidence, if received, would not afford ground for allowing the appeal, exercise their power of receiving it if -

(a) it appears to them that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) they are satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.

(3) ..."

It falls to the court to determine, if necessary, claims by the Crown that documents should not be disclosed on the grounds of public interest immunity (see, inter alia, R. v. Judith Ward, judgment of the Court of Appeal (Criminal Division) of 8 June 1992).

The approach to be adopted by the Court of Appeal when considering under section 2(1)(a) of the 1968 Act whether a trial verdict was unsafe or unsatisfactory was discussed by the Appellate Committee of the House of Lords in the context of a section 17 reference in Stafford v. Director of Public Prosecutions [1974] Appeal Cases 878. Viscount Dilhorne, with whom the other members of the Appellate Committee agreed, stated:

"I do not suggest that in determining whether a verdict is unsafe or unsatisfactory, it is a wrong approach for the court to pose the question - ‘Might this new evidence have led to the jury returning a verdict of not guilty?’ If the court thinks that it would or might, the court will no doubt conclude that the verdict was unsafe or unsatisfactory ... It would, in my opinion, be wrong for the court to say: ‘In our view this evidence does not give rise to any reasonable doubt about the guilt of the accused. We do not ourselves consider that an unsafe or unsatisfactory verdict was returned but as the jury who heard the case might conceivably have taken a different view from ours, we quash the conviction’ for Parliament has, in terms, said that the court should only quash a conviction if, there being no error of law or material irregularity at the trial, ‘they think’ the verdict was unsafe or unsatisfactory. They have to decide and Parliament has not required them or given them power to quash a verdict if they think that a jury might conceivably reach a different conclusion from that to which they have come. If the court has no reasonable doubt about the verdict, it follows that the court does not think that the jury could have one; and, conversely, if the court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the court has a reasonable doubt."

The Court of Appeal has held that the powers under section 23 of the 1968 Act extend to rehearing evidence which has already been given at the trial, if this is necessary or expedient in the interests of justice. The court has also held that it has a general power under section 23 (1) to admit further evidence, not restricted to the circumstances set out in section 23 (2) (R. v. Lattimore and others [1976] 62 Criminal Appeal Reports 53). However it is unusual for the Court of Appeal to exercise that power since it is reluctant to substitute its own findings of fact for those of the jury which has already seen and heard the relevant witness. In practice, the exercise of the power to receive evidence is thus mainly confined to fresh evidence which has arisen since the trial and which the jury did not have the benefit of hearing. No statistics are available on the frequency with which the power to rehear evidence is exercised.

In March 1991 the Secretary of State for the Home Department announced the appointment of a Royal Commission on Criminal Justice which is expected to consider, inter alia, the general application of the 1968 Act.


CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM (ARTICLE 50)

Preliminary objection rejected (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The Court is called upon to rule only on the question of the application of Article 50 (art. 50) in the present cases. Thus, as regards the facts the Court will confine itself here to giving a brief outline and for the rest it refers to paragraphs 15 to 43 of its judgment of 18 June 1971.

That judgment concerned the detention of De Wilde, Ooms and Versyp ordered by decisions of the magistrates at Charleroi, Namur and Brussels on 19 April 1966, 21 December 1965 and 4 November 1965 respectively under Sections 13 (in the cases of De Wilde and Versyp) and 16 (in the case of Ooms) of the Act of 27 November 1891 for the suppression of vagrancy and begging. De Wilde regained his freedom after a little less than seven months (three of which he spent serving a prison sentence), Ooms after one year and Versyp after one year, nine months and six days.

In the course of the proceedings before the Commission, the applicants each claimed 500 Belgian francs (BF) damages per day of detention. Their counsel, Me. Magnée, now relies on the judgment of 18 June 1971 to claim, on behalf of each of them, damages of 300 BF per day of "unlawful detention".

With that object, Me. Magnée began by addressing to the Belgian Minister of Justice, on 22 and 30 June 1971, two letters of which the first related to Versyp and the second to Ooms. On 12 July, the Minister replied that the Government could only apply the law as it stood while waiting for the Bill on "social misfits" - which it had introduced even before the judgment of 18 June 1971 - to be passed. Considering this reply to amount to a refusal contrary to the principle of the supremacy of international treaty law over national law, Me. Magnée informed the Minister, on 14 July that he proposed to bring the matter before the "competent authorities" and to notify the Commission.

Counsel for the applicants did in fact write first to the Committee of Ministers - 16 July - to inform them of the Minister of Justice’s refusal which implied, he alleged, a violation of the Court’s judgment; he later wrote, on 23 July, to the Commission referring to Articles 5 (5), 48 and 50 (art. 5-5, art. 48, art. 50) of the Convention and requested the Commission to bring before the Court the claim made by each of his three clients.

On 2 August, he addressed to the Minister of Justice a letter concerning De Wilde which was worded in the same terms as the letters of 22 and 30 June. The Minister acknowledged its receipt on 12 August, noting that along with the other two it had been communicated by Me. Magnée to the Commission.

In its memorial of 27 October 1971, the Government pointed out to the Court that on 17 June 1971 it had tabled in Parliament a Bill on "social misfits" intended to replace the 1891 Act. The Government added that, desiring to comply with the judgment of 18 June 1971 without awaiting the passage of this Bill, it had voted by Parliament an Act of 6 August 1971 amending the 1891 Act and containing two sections. The first, which inserted a new section, numbered 16 bis, in the 1891 Act, provides that decisions taken under Sections 13 and 16 are henceforth made subject to the remedies available under the Code of Criminal Procedure, including appeal. Section 2 was a transitional provision: it specified that vagrants or beggars held in detention on the entry into force of the 1971 Act (4 September 1971) in execution of a decision taken under Section 13 or Section 16 of the 1891 Act, could exercise for a period of one month the remedy provided for at Section 16 bis.